Hartman v. Santamarina

Citation118 Cal.App.3d 87,173 Cal.Rptr. 236
CourtCalifornia Court of Appeals Court of Appeals
Decision Date15 April 1981
PartiesMaxine HARTMAN, Plaintiff and Appellant, v. Fernando SANTAMARINA, M. D., Defendant and Respondent. Civ. 23021.
OPINION

KAUFMAN, Acting Presiding Justice.

Plaintiff Maxine Hartman appeals from a judgment dismissing her medical malpractice action because it was not brought to trial within five years of its commencement as required by subdivision (b) of Code of Civil Procedure section 583. All statutory references will be to the Code of Civil Procedure unless otherwise specified.

The action was filed on February 7, 1974. The initial trial setting conference was scheduled to be held on August 9, 1974, but plaintiff's attorney did not appear and her at-issue memorandum was stricken. Subsequently, trial was set for October 20, 1975. Four days before the assigned trial date, plaintiff moved for a continuance. Her motion was granted, and the trial date was vacated.

Trial was again set, this time for February 28, 1977. Because of the unavailability of courtrooms on that date, the trial date was again continued. The date selected was October 11, 1977. On that date defendant moved for and was granted a continuance because counsel was engaged in another trial, and a new trial date was selected, February 14, 1978. On February 14 the case was assigned for trial but defendant filed an affidavit of prejudice against the judge. The case was then assigned to another department, and plaintiff filed an affidavit of prejudice against the judge. Because there were no other courtrooms available on that date, trial was continued. The date selected was January 15, 1979.

On January 15, 1979, 25 days before the expiration of the five-year period, counsel for both plaintiff and defendant appeared in court. Plaintiff's attorney 1 announced that he was presently engaged in a trial in the Ventura Superior Court which had not been expected to take nearly as long to try as it now appeared it would and that he was, therefore, "not able to go forward today in this matter," that it was "impossible for me to go forward at this time."

Noting the impending expiration of the five-year period, plaintiff's attorney suggested as one possibility that the case be continued for trial until February 5, three days before the five-year statute was to run, stating: "We are not going to be holding trial in Ventura that week. I could come down here, pick a jury, and then continue the matter over to a time convenient to the court and the parties when my Ventura case would be finished."

The trial court asked: "Do you have anyone that could work on the selection of a jury today?" Plaintiff's counsel replied: "No. I could start it today, but I could never finish it." The court then stated: "Well, I don't know what to tell you. We probably will have a department open today that could take it and try it because of the running on the five-year statute. We have some other cases that will probably fill that department if you do not. But I really can't tell you what it will be like if you want it continued to the February 5th date. I can't tell you whether you will get out then or not."

Apparently the case was assigned to a department for a settlement conference which proved unsuccessful. In any event, later that same day, counsel for both parties appeared in another department where the proceedings were had around which the present controversy turns.

The court explained to the jury panel that this was likely to be the shortest jury service they would ever experience. The prospective jurors were sworn; 12 jurors were seated; both sides passed for cause; 2 and the oath was administered to the jury. Immediately thereafter the court asked plaintiff's counsel whether he had a motion to make, whereupon he moved for a continuance "because I am presently engaged in the case of Collier versus Nickel, et al., in the ... Ventura Superior Court, ..." The objection of counsel for the defendant to the motion for continuance was noted for the record, and the motion for the continuance was granted. The court then discharged the jury, as was contemplated from the beginning. 3

On July 13, 1979, after expiration of the five-year period, defendant moved to dismiss the action pursuant to subdivision (b) of section 583. 4 The motion to dismiss was heard and granted on July 30, and judgment of dismissal was entered in due course.

Plaintiff advances three principal contentions on appeal: first, that the time during which no courtroom was available for trial and the period of delay caused by the parties' exercise of their right to peremptorily challenge one judge each under section 170.6 should be excluded in computing the five-year period; second, that by virtue of the proceedings on January 15, 1979, in which a jury was selected and sworn, the action was in fact brought to "trial" within the contemplation of section 583, subdivision (b); and third, that the judgment of dismissal should be reversed by application of the principles announced by the Supreme Court in Hocharian v. Superior Court, 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829, decided January 19, 1981. Amicus supports plaintiff in respect to the second and apparently the third contentions. We have concluded that none of these contentions are meritorious.

We discuss the third contention first. The decision in Hocharian v. Superior Court, supra, 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829 is of no precedential value to this court, as an intermediate appellate court, in deciding the case at bench. Hocharian dealt with a different statute, Code of Civil Procedure section 581a, subdivision (a), requiring dismissal of an action unless the summons has been served and returned within three years after the action was filed. The court there imported into the mandatory three-year statutory provision a concept of reasonable diligence. It held that the running of the three-year period without service and return of the summons creates only a rebuttable presumption that the case was not prosecuted with reasonable diligence (but cf. Woley v. Turkus (1958) 51 Cal.2d 402, 406, 334 P.2d 12, and cases there cited); that the presumption is subject to rebuttal by the plaintiff on an appropriate showing; and that, even if the plaintiff has been able to show reasonable diligence, dismissal may nevertheless be required if the defendant is able to demonstrate prejudice. (28 Cal.3d at pp. 722-724, 170 Cal.Rptr. 790, 621 P.2d 829.)

We do not perceive that this intermediate appellate court is authorized to entertain the question whether the concepts employed by the Hocharian majority are applicable to the mandatory five-year provision of section 583. Numerous Supreme Court decisions, not overruled in Hocharian, hold or state that dismissal under the five-year statute is mandatory unless facts are shown bringing the case within one of the statutory or recognized judicially created exceptions. (E. g., Tunis v. Superior Court (1963) 59 Cal.2d 465, 466-467, 30 Cal.Rptr. 135, 380 P.2d 823; Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 466; Andersen v. Superior Court (1921) 187 Cal. 95, 97, 200 P. 963; see Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 63, 168 P.2d 665; Christin v. Superior Court (1937) 9 Cal.2d 526, 529, 71 P.2d 205; see also Woley v. Turkus, supra, 51 Cal.2d at p. 406, 334 P.2d 12.) This court is bound by stare decisis to follow those decisions unless and until they are overruled by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

We are unable for several reasons to agree with the contention that the trial should have excluded from the computation of the five-year period the time consumed by the continuances that resulted on the several occasions when no courtroom was available for trial and the continuance that resulted from the parties' filing affidavits of prejudice against the judges presiding in the two departments to which the case was assigned for trial. It is true, of course, that periods during which it would have been impossible, impracticable or futile to have proceeded to trial are, in appropriate circumstances, excluded from the computation of the five-year period. (See J. C. Penney Co. v. Superior Court, (1959) 52 Cal.2d 666, 671, 343 P.2d 919, and cases there cited; see also Hocharian v. Superior Court, supra, 28 Cal.3d at p. 719, 170 Cal.Rptr. 790, 621 P.2d 829.) However, it is also well settled that the time consumed in the ordinary proceedings preliminary to trial including the "usual and reasonable time consumed in waiting for a place on the court's calendar," are not to be excluded from the computation of the five-year period. (J. C. Penny Co. v. Superior Court, supra, 52 Cal.2d at p. 670, 343 P.2d 919, quoting from Continental Pac. Lines v. Superior Court (1956) 142 Cal.App.2d 744, 750, 299 P.2d 417; Specht v. City of Los Angeles (1962) 201 Cal.App.2d 457, 461, 20 Cal.Rptr. 42, and case there cited.) Moreover, even were it otherwise, there was no showing in the trial court of the periods of time during which it was impossible to go to trial because of the unavailability of a courtroom or as a result of the exercise of the two peremptory judicial...

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  • Powers v. Commission On Professional Competence
    • United States
    • California Court of Appeals
    • June 7, 1984
    ...petitioner his right to a speedy hearing." In its original memorandum of intended decision, the court relied on Hartman v. Santamarina (1981) 118 Cal.App.3d 87, 173 Cal.Rptr. 236. In this case, 25 days before the expiration of the 5-year period for bringing a malpractice action to trial, pl......

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