Gray v. Firthe

• Court: California Court of Appeals
• Writing for the Court: CARR; BLEASE, Acting P.J., and SPARKS
• Citation: Gray v. Firthe, 239 Cal.Rptr. 389, 194 Cal.App.3d 202 (Cal. App. 1987)
• Decision Date: 19 August 1987
• Parties: Robert F. GRAY et al., Plaintiffs and Appellants, v. Roger FIRTHE et al., Defendants and Respondents. Civ.C001995.

Page 389

239 Cal.Rptr. 389

194 Cal.App.3d 202

Robert F. GRAY et al., Plaintiffs and Appellants, v. Roger FIRTHE et al., Defendants and Respondents.

Civ.C001995.

Court of Appeal, Third District, California.

Aug. 19, 1987.

Melvin E. Beverly, South Lake Tahoe, for plaintiffs and appellants.

Gregory C. Corn, Reno, Nev., and Iris Malsman, South Lake Tahoe, John C. Hope, Jr., Hardesty, Moss & Michaels, James W. Hardesty and Erica Michaels, Reno, Nev., for defendants and respondents.

CARR, Associate Justice.

In this appeal from orders (judgments) of dismissal for the failure of plaintiffs Robert F. and Patricia W. Gray (the Grays) to bring their action to trial within the statutory five-year period, we are asked to determine on what date the five-year period prescribed by the 1984-enacted Code of Civil Procedure sections 583.310 ¹ and 583.360 starts to run when the action is originally filed, or when the action is "commenced" against individual defendants. The trial court determined dismissal was mandated if the action was not brought to trial within five years of its original commencement. We conclude this determination under the new five-year dismissal statute was erroneous and shall reverse.

FACTUAL AND PROCEDURAL HISTORY

On November 19, 1981, the Grays filed a complaint to rescind certain contracts entered into between themselves and defendants Gary Dale Plowman (Plowman) and Resort Development, Inc. (Resort Development). Plowman and Resort Development answered.

On February 4, 1983, pursuant to a stipulation with Plowman and Resort Development, the Grays filed a first amended complaint again naming as defendants Plowman and Resort Development and seeking in the causes of action against those defendants to rescind the contracts entered into between them and the Grays. The amended complaint named for the first time defendants Porfirio, Donna and Anthony Medina, (Medinas), Roger and Kathee Firthe (Firthes), James Keller (Keller), Washoe Title Guaranty Company (Washoe), Truckee Meadows Mortgage Company (Truckee Meadows) and First American Title Company, Inc. (First American) and set forth entirely new causes of action against these additional defendants.

Keller, Truckee Meadows, the Medinas, and the Firthes answered on March 11, 1983, and cross-claimed against Plowman and Resort Development. Washoe answered on June 17, 1983.

Thereafter there was no activity by the Grays until June 1985 when they submitted an at-issue memorandum to the court to have the matter set for trial. It was rejected for filing by the clerk as the first amended complaint had not been answered by First American, Plowman, and Resort Development and the cross-claim had not been answered by the cross-defendants. First American subsequently answered on August 8, 1985.

In December 1985 Gray made an abortive attempt to sever the cross-claim from the main action. ² Failing this, the defaults of Plowman and Resort Development were entered on the cross-claim on March 3, 1986.

On March 18, 1986, a second at-issue memorandum was returned unfiled to the Grays, this time because Plowman and Resort Development had still not answered the first amended complaint and their default had not been taken.

The Grays entered into a stipulation with Plowman and Resort Development to permit their answer to the original complaint to serve as their answer to the first amended complaint.

On March 25, 1986, the Grays filed an at-issue memorandum and certificate of readiness and arbitration determination statement. On April 8, 1986, a mandatory settlement conference was set for September 19, 1986, with a trial date to commence on October 14, 1986. At the mandatory settlement conference no settlement was reached and the court ordered the trial to proceed on the previously scheduled date of October 14, 1986.

On October 9, 1986, counsel for the Grays was informed the matter could not proceed to trial on October 14, 1986, because of court congestion. The Grays then moved for an accelerated trial setting. The motion was denied and the case set for trial on January 5, 1987.

On November 24, 1986, Keller and Truckee Meadows filed a motion for mandatory dismissal pursuant to section 583.360. Keller and Truckee Meadows were joined in the motion by Washoe, the Medinas and Kathee Firthe. The Medinas and Kathee Firthe further urged the action could be dismissed in the court's discretion for failure to have brought the action to trial within three years of commencement. On December 17, 1986, the court granted the motion as to all moving defendants on the sole ground that the action had not been brought to trial within the five-year mandatory period. Roger Firthe then also moved to dismiss for failure to bring to trial within the mandatory five-year period. His motion was granted on January 9, 1987. This appeal is timely taken from both orders of dismissal.

DISCUSSION

In 1984 the Legislature repealed former section 583 and enacted a new comprehensive scheme governing dismissals for delay in prosecution (Code Civ.Proc., § 583.110 et seq.). (Stats.1984, ch. 1705, § 5.) ³

Application of the new provisions to actions commenced prior to January 1, 1985, is controlled by section 583.160, which provides the new enactments apply to motions for dismissal in actions commenced before, on, or after January 1, 1985. A motion for dismissal of such an action made pursuant to notice given before, on, or within one year after January 1, 1985, is governed by the applicable law in effect immediately before January 1, 1985. (§ 583.160, subd. (a).) ⁴ All motions to dismiss in this case were made in late 1986 and are therefore governed by the new statutory provisions. ⁵

Prior to the enactment of section 583.310, former subdivision (b) of section 583 provided in part: "Any action ... shall be dismissed ... unless such action is brought to trial within five years after the plaintiff has filed his action, ..." (Stats.1982, ch. 1402, § 3, p. 5355.)

In construing the language of subdivision (b) of former section 583 the courts consistently held that the mandatory five-year period within which to bring an action to trial commenced running with the filing of the original complaint. (6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 125, pp. 433-434.) This result obtained even when an amended complaint stated a new cause of action or brought in new parties. (Stults v. Thompson (1969) 274 Cal.App.2d 733, 735-736, 79 Cal.Rptr. 520.)

The Grays assert the Legislature abrogated the former rule by enacting the new section 583.310; that by the plain language of the new section as to a new non-Doe defendant added to an action by an amended complaint, the five-year period begins to run when the amended complaint is filed.

Section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.360 requires that an action not brought to trial within that time be dismissed. ⁶

It is a fundamental rule in the construction of statutes to so read them as to give force and effect to the intent of the Legislature. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Statutes are required to be given effect according to the usual, ordinary import of the language used in framing them. (Ibid.) An intention to change the law or the meaning of a statute will generally be inferred or presumed from a material change in the statutory language. (People v. Salazar (1983) 144 Cal.App.3d 799, 806-807, 193 Cal.Rptr. 1.) Such an intent is inferred when the existing law is amended by deletion of an express provision of the previous statute and the substitution of an alternative provision. (Ibid.) Moreover, though the court may properly rely on extrinsic aids to ascertain legislative intent the court turns first to the words of the statute to determine the Legislature's will. (Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d at pp. 230-231, 110 Cal.Rptr. 144, 514 P.2d 1224.)

We observe initially that changing the operative phrase from "within five years after the plaintiff has filed his action" (former § 583, subd. (b)) to "after the action is commenced against the defendant" (new § 583.310) manifests a clear intent to change the law.

The new statutory scheme uses the phrase "after the action is commenced against the defendant" throughout its provisions. New section 583.420 provides for the discretionary dismissal of actions not brought to trial within specified periods "after the action is commenced against the defendant." Section 583.210 provides that service of the summons and complaint shall be made upon a defendant within three years "after the action is commenced against the defendant." ⁷ In commenting on new section 583.210, the Law Revision Commission stated: "Section 583.210 applies to a defendant sued by a fictitious name from the time the complaint is filed and to a defendant added by amendment of the complaint from the time the amendment is made." ⁸ (17 Cal.Law Revision Com.Rep. (June 1983) p. 931.)

The repetition of the phrase, "after the action is commenced against the defendant" manifests an intent to standardize the mandatory and discretionary dismissal provisions of the new law as to the time when such dismissal begins to run. We presume the phrase was intended to have the same meaning wherever used in the new law. (People v. McCart (1982) 32 Cal.3d 338, 344, 185 Cal.Rptr. 284, 649 P.2d 926.)

As to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint. (Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 38, 96 Cal.Rptr. 317.) But when a new party is added to the action, the action commences as to that party on the date of the order adding him or her as a party or on the date of filing of the pleading naming him or...