Hill v. Bingham

Decision Date15 May 1986
Citation225 Cal.Rptr. 905,181 Cal.App.3d 1
CourtCalifornia Court of Appeals Court of Appeals
PartiesJoe HILL, Plaintiff and Respondent, v. Duke BINGHAM, Jr., Defendant and Appellant. Civ. B011912.
Todd & Siegel and John Sanford Todd, Lakewood, for defendant and appellant

Stump, Garner & Wright and James L. Wright, Long Beach, for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant and appellant Duke Bingham, Jr. (Bingham), appeals from a judgment in favor of plaintiff and respondent Joe Hill (Hill).

The trial court erred in granting Hill's motion for reconsideration because Hill's failure to act diligently to bring the action to trial within five years precludes him from benefiting from any exceptions which otherwise would have afforded relief from dismissal. Because the statutory period had run, the trial court was without jurisdiction thereafter to try the case. The judgment therefore is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

On December 20, 1978, Hill filed a complaint against Bingham and one Chris Voyatzis (Voyatzis), 1 doing business as Chris' Horseshoe Bar. In his complaint, Hill sought damages for an alleged assault and battery committed by Bingham.

Bingham filed an answer on February 5, 1979, denying Hill's allegations and raising self-defense as an affirmative defense. During 1979 and 1980, all parties undertook routine discovery. An at-issue memorandum was filed June 2, 1982.

On October 7, 1982, Hill gave Bingham notice of a mandatory settlement conference set for January 25, 1983, and a trial date of February 17, 1983.

At the mandatory settlement conference, the matter was referred to judicial arbitration. The arbitration hearing was held February 17, 1983, and a $10,000 award was entered in Hill's favor on February 24, 1983. Bingham filed a request for trial de novo on March 3, 1983. At that time, about nine months and seventeenth days remained before the five-year statute would run on December 20, 1983.

Hill filed a certificate of readiness on March 14, 1983, and an at-issue memorandum on June 20, 1983. On October 4, 1983 On January 31, 1984, Bingham filed a motion to dismiss pursuant to then Code of Civil Procedure section 583, subdivision (b) for failure to bring the action to trial within the statutory period. 2 , 3 The motion was heard on February 28, 1984, and the action was dismissed March 5, 1984.

Hill gave Bingham notice of a second mandatory settlement conference scheduled for March 13, 1984, and a new trial date of April 4, 1984, both beyond the five-year mark.

Hill filed a motion for reconsideration on April 6, 1984, which motion was granted May 14, 1984. In its minute order, the trial court indicated its decision was based on Moran v. Superior Court (1983) 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216. After Bingham failed in an attempt to obtain relief by way of a writ of mandate, the case proceeded to trial and a judgment of $20,963.70 was entered in Hill's favor on January 8, 1985.

CONTENTIONS

Bingham contends: neither Moran nor the tolling provisions of section 1141.17, subdivision (b) were available to Hill, and the trial court abused its discretion in granting the motion for reconsideration; the judgment granted Hill is a nullity in that the trial court was without jurisdiction to try the case but could only dismiss the action pursuant to section 583, subdivision (b).

DISCUSSION
1. Implied exceptions based on impossibility, impracticability or futility.

The purpose of the five-year rule is to " 'promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed ... [and] to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time.' " (Moran v. Superior Court, supra, 35 Cal.3d at p. 237, 197 Cal.Rptr. 546, 673 P.2d 216.)

"Implied exceptions to the rule have been recognized 'where, 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.' [Citations.] The reasoning underlying these implied exceptions has been repeatedly noted. 'The purpose of the statute is ... to prevent avoidable delay for too long a period. It is not designed arbitrarily to close the proceeding at all events in five years....' " (Id., at pp. 237-238, 197 Cal.Rptr. 546, 673 P.2d 216.)

"What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case." (Id., at p. 238, 197 Cal.Rptr. 546, 673 P.2d 216, italics added.)

In Moran, an arbitration award in plaintiff Riccardo's favor was filed with the superior court 41 days before the expiration of the 5-year period. Twenty-four days before the expiration of the five-year period, defendant Moran filed a request for a trial de novo. Upon receipt of a copy of Moran's request, Riccardo's attorneys contacted the superior court clerk's office by telephone, and requested the case be reset for trial and given the same position on the trial calendar it had prior to being referred to arbitration. The clerk's office assured the attorneys the matter would be reset within the five-year period. Follow-up calls by Riccardo's attorneys produced the same assurances. However, the clerk's office sent the case file to the basement for storage, and the five-year period elapsed. (Id at pp. 235-236, 197 Cal.Rptr. 546, 673 P.2d 216.)

The Moran court held the trial court properly refused to dismiss Riccardo's action under section 583, subdivision (b) for two independent reasons. The first reason advanced was that Riccardo's conduct was sufficiently diligent to warrant application of the impossibility exception to excuse her failure to bring the case to trial within the five-year limit (id., at p. 239, 197 Cal.Rptr. 546, 673 P.2d 216). Prior to the case being ordered to arbitration, Riccardo "participated actively in an ongoing and thorough discovery process" (ibid.); she participated in the six-day arbitration hearing; when Moran demanded a trial de novo, she promptly contacted the master calendar clerk's office and requested the matter be reset for trial to comply with the five-year rule; follow-up calls were made during the week of the request to ensure the resetting process was in motion; the deadline passed while Riccardo was waiting for the case to be reset for trial (ibid).

State of California v. Superior Court (1979) 98 Cal.App.3d 643, 159 Cal.Rptr. 650, decided prior to Moran, provides an illustration of a situation where a tolling because of impossibility, impracticability or futility is not warranted. In that case, a complaint was filed May 1, 1974; arbitration proceedings were concluded October 4, 1978. At the trial setting conference on January 22, 1979, plaintiffs' counsel neither made a motion to advance the case to trial under then California Rules of Court, rule 225 4 nor brought to the court's attention the approaching deadline, and permitted a trial date of May 14, 1979, to be assigned without objection, so that the action would not proceed to trial until five years and fourteen days after the filing of the complaint.

The court found there had been ample time, over 6 1/2 months prior to the expiration of the five-year period to have the case advanced, and cited Vogelsang v. Owl Trucking Co. (1974) 40 Cal.App.3d 1068, 115 Cal.Rptr. 666 and Weeks v. Roberts (1968) 68 Cal.2d 802, 69 Cal.Rptr. 305, 442 P.2d 361, which held 46 days and 28 days, respectively, as sufficient times within which to provide a courtroom for a plaintiff seeking to avoid the application of the five-year rule. (State of California v. Superior Court, supra 98 Cal.App.3d at p. 650, 159 Cal.Rptr. 650.)

The court concluded "inadvertence in selecting a trial date does not constitute the type of impracticability, impossibility or futility which tolls the five-year statute, ...: 'It is the plaintiff's duty to keep track of the pertinent dates which are crucial to maintenance of [the] lawsuit, and to see that the action is brought to trial within the five-year period.' " (Id., at pp. 649-650, 159 Cal.Rptr. 650.)

2. Moran's pronouncements on the trial court's sua sponte duty to recalendar.

The second independent ground in Moran for allowing the case to be tried on the merits was based on section 1141.20. 5 The court reasoned "[s]ince the trial court alone has the power to order a matter placed upon its trial calendar, section 1141.20 imposes a duty upon the court sua sponte to recalendar the trial in 'the same place ... it had prior to arbitration.' " (Moran v. Superior Court, supra, 35 Cal.3d at p. 241, 197 Cal.Rptr. 546, 673 P.2d 216.) A plaintiff is entitled to assume official duty would be performed. (Ibid.) Therefore, to comply with the statutory mandate and ensure that the plaintiff retains the benefit of the amount of time remaining in the five-year period when the case entered arbitration, the Moran court excluded from the computation of the five-year period the time between the date the arbitration award was filed and the date set for the new trial. (Ibid.)

The effect of the Moran holding was to render the five-year rule in such a fact situation meaningless, because the five-year period would be tolled until the new trial date, and therefore such a trial date would always be within the five-year period. Section 1141.17, 6 as amended effective January 1, 1984, does not supersede this rule. Notwithstanding the Legislative Committee Comment--Assembly 1984 Amendment which states: "Section 1141.17 supersedes the rule stated in Moran ..., that the...

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