Governale v. Bethlehem Pac. Coast Steel Corp.

• Decision Date: 20 July 1965
• Citation: 45 Cal.Rptr. 707,235 Cal.App.2d 837
• Court: California Court of Appeals Court of Appeals
• Parties: L. G. GOVERNALE, Plaintiff and Appellant, v. BETHLEHEM PACIFIC COAST STEEL CORPORATION, a California corporation, et al., Defendants and Respondents. Civ. 22229.

Page 707

45 Cal.Rptr. 707

235 Cal.App.2d 837

L. G. GOVERNALE, Plaintiff and Appellant, v. BETHLEHEM PACIFIC COAST STEEL CORPORATION, a California corporation, et al., Defendants and Respondents.

Civ. 22229.

District Court of Appeal, First District, Division 3, California.

July 20, 1965.

Rehearing Denied Aug. 19, 1965.

Hearing Denied Sept. 15, 1965.

Rhein & Dienstag, Edward Dienstag, Kirk L. Kirk, San Francisco, for appellant.

Philip S. Ehrlich and Irving Rovens, San Francisco, for respondent Hyman-Michaels Co.

Pillsbury, Madison & Sutro, Noble K. Gregory, George A. Sears, James F. Kirkham San Francisco, for respondment Bethlehem Steel Co.

Matthew Koppel, San Francisco, Fitzgerald, Abbott & Beardsley, Oakland, Leo H. Shapiro and Stephen D. Maffini, Glicksberg, Kushner & Goldberg, San Francisco, Horton, Knox, Carter & Rutherford, El Centro, Goldstein, Brann & Stern, Philip S. Ehrlich and Irving Rovens, Dinkelspiel & Dinkelspiel, San Francisco, for respondents Mayco Salvage Co., The Learner Co., Luria Bros. & Co., Inc., Stafford Hannon Cattle Co., Stafford Hannon, Pacific States Steel Corp., California Metals Co. and John Sutherland.

SALSMAN, Justice.

On March, 13, 1959 appellant filed a complaint alleging that the respondents, together with various other persons and corporations sued by fictitious names, had converted his personal property. On April 15, 1964 the trial court entered its order dismissing the action pursuant to section 583 of the Code of Civil Procedure. Appellant brings this appeal from that order.

The relevant part of section 583 reads: 'Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced * * * unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended and except where it be shown that the defendant has been absent from the State or concealed therein and his whereabouts unknown to plaintiff * * *.'

Appellant first contends that it facts it to dismiss his action because on its facts it falls within certain judicially established exceptions to section 583, and second that the trial court abused its discretion in refusing to advance the date for pretrial

Appellant first contends that it was error statute could have been avoided. An examination of the record, however, and a consideration of the applicable authorities clearly demonstrate the propriety of the trial court's rulings. We therefore affirm the judgment.

Appellant's complaint was filed on March 13, 1959. The respondents were served with process and all had answered by August 9, 1961, with the exception of respondent Hyman-Michaels Company. On August 3, 1961 appellant filed a memorandum asking that the action be set for trial, and stating that the pretrial conference would require two days, and the trial two weeks.

In April 1962 appellant served respondent Hyman-Michaels Company. The latter attempted unsuccessfully to quash service of summons and was ordered to answer.

In March 1963 the court set May 6th as the date for a pretrial conference. In April however, appellant requested the court to place the case on its reserve calendar, to be reset at the request of any party.

In May 1963 two of the respondents propounded interrogatories to appellant. One respondent notified appellant that after the interrogatories were answered, it desired to take appellant's deposition and to pursue such other discovery as might be indicated. Appellant requested that his time to answer interrogatories remain open, and respondents propounding the interrogatories agreed.

Appellant took no further action in the case until January 20, 1964 when he filed a motion to set a trial date certain, on the ground that the five year limitation of section 583 was in danger of running. The motion was heard January 27th. On January 28th appellant filed answers to one set of interrogatories transmitted to him more than 8 months before. On January 29th appellant filed a motion to advance the case for pretrial and to fix a date certain for that step in the action. This motion was heard on February 7th, and on February 10th the court denied the motion to fix a trial date and also denied appellant's request to advance the pretrial conference date. In denying these motions the court noted that respondent Hyman-Michaels had not yet filed its answer to the complaint and that, as to that party, the action was not at issue. Three days after appellant's motions were denied, respondent Hyman-Michaels filed its answer.

On February 27th the court fixed April 10th as the date for pretrial conference.

On March 16th and 17th respondents filed separate motions to dismiss the action because of appellant's failure to bring it to trial within the five year period specified in section 583. On April 15th the court granted these motions and ordered the action dismissed.

Appellant correctly points out that it is the policy of the law to favor the trial of an action upon its merits, and that appellate courts are more disposed to affirm an order where the result is to assure a hearing upon the issues presented than to allow an order to stand where the result is to deny trial. (Waybright v. Anderson, 200 Cal. 374, 377, 253 P. 148.) This policy, however, has its widest application when the discretionary powers of the court are invoked. Here, however, in the application of section 583 to the facts, we are not concerned with any discretion exercised by the trial court because the statute, where applicable, is mandatory. (Tunis v. Superior Court, 59 Cal.2d 465, 466, 30 Cal.Rptr. 135, 380 P.2d 823; Ellsworth v. United States Metals Corp., 110 Cal.App.2d 727, 728, 243 P.2d 575.) Unless appellant brings himself within one of the exceptions expressly allowed in the statute, or within one of the implied exceptions engrafted upon the statute by appellate decisions, the statute must be applied and given the effect which it was intended to have.

No contention is made that either of the express exceptions noted in the statute are applicable to our facts. There was no stipulation in writing that time within which to bring the action to trial might be extended, nor is it seriously urged that any respondent was absent from the state or concealed within the state for the purpose of avoiding the process of the court or avoiding trial. Appellant does contend, however, that his case falls within certain judicially created exceptions to section 583. Despite its apparently mandatory language (Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740, 329 [235 Cal.App.2d 841] P.2d 489), such exceptions do exist. (Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981; J. C. Penney Co. v. Superior Court, 52 Cal.2d 666, 671, 343 P.2d 919.) Thus it is established that the time during which 'for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile' (Christin v. Superior Court, 9 Cal.2d 526, 533, 71 p.2d 205, 208, 112 A.L.R. 1153) is excluded from the five year period. (J. C. Penney Co. v. Superior Court, supra, 52 Cal.2d 666, 671, 343 P.2d 919, and cases cited; Ellsworth v. United States Metals Corp., supra, 110 Cal.App.2d 727, 728, fn. 1, 243 P.2d 575, and cases cited.)

Appellant first argues that the period of time during which respondent Hyman-Michaels' motion to quash service of summons was pending should be excluded from the five year period because during that time the court lost jurisdiction of the case and hence trial was impossible. This argument is unsupported by authority. It seems plain that time consumed in disposition of the motion to quash service of process, like that necessarily consumed in the disposition of a demurrer, a motion to strike, or an amendment to the pleadings, or while waiting for a place on the court's calendar must be included in the five year period. (J. C. Penney Co. v. Superior Court, supra, 52 Cal.2d 666, 670, 343 P.2d 919.) The mere fact that such a motion was made had no effect upon the court's jurisdiction.

Next it is urged that the period of time following the date originally set for pretial must be excluded. But, as stated in J. C. Penney Co. v. Superior Court, supra, 52 Cal.2d...