Hiroko Kawakita Hayashi v. Lorenz

• Decision Date: 28 May 1954
• Citation: 271 P.2d 18,42 Cal.2d 848
• Court: California Supreme Court
• Parties: HIROKO KAWAKITA HAYASHI et al. v. LORENZ et al. L. A. 22493.

Page 18

271 P.2d 18

42 Cal.2d 848

HIROKO KAWAKITA HAYASHI et al. v. LORENZ et al.

L. A. 22493.

Supreme Court of California, In Bank.

May 28, 1954.

Rehearing Denied June 23, 1954.

Morris Lavine, Los Angeles, for appellant.

Horton & Knox, Harry W. Horton and R. L. Knox, Jr., El Centro, for respondents.

TRAYNOR, Justice.

Plaintiffs appeal from an order of dismissal entered on defendants' motion to dismiss for failure to prosecute. Code Civ.Proc. § 583.

Plaintiffs' complaint was filed on March 4, 1947. An amended complaint, filed on December 11, 1947, alleged that defendants had entered into a conspiracy to defraud plaintiffs of certain real property, and that in pursuit of this conspiracy defendant Lorenz procured his appointment as guardian of the estates of plaintiffs Hiroko and Tomoya, and, as guardian, subsequently sold the property constituting the guardianship estate to defendant Rashid for much less than its market value. It was also alleged that defendants fraudulently procured the sale to defendant Rashid of certain property belonging to plaintiff Yasabura. For a statement of the circumstances surrounding these events, see Guardianship of Hiroko Kawakita, Cal.Supp., 271 P.2d 13. Plaintiffs' amended complaint ended with a prayer for compensatory and exemplary damages, or, alternatively, for damages and for an order declaring the guardian's deed null and void and directing defendant Rashid to convey the property to plaintiffs Hiroko and Tomoya.

Defendants answered plaintiffs' amended complaint denying the alleged conspiracy to defraud, denying that each of the orders in the guardianship proceedings was void on its face as plaintiffs claimed, and asserting that plaintiff Tomoya had no standing in court either because he was a citizen of Japan (with which the United States was then still at war) or because he was civilly dead as a result of his conviction of treason and sentence to death.

On February 18, 1952, plaintiffs noticed a motion to set the cause for trial before March 4, 1952. Defendants filed a motion to dismiss the action for failure to prosecute on February 26. Both motions were heard on February 28, and, on the following day, an order was made granting the motion to dismiss. This appeal followed.

Section 583 of the Code of Civil Procedure provides, in part, 'The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial * * *.' The discretion is that of the trial court, and it will be disturbed only in cases of manifest abuse. Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343, and cases there cited. Plaintiffs have not shown any such abuse of discretion.

Plaintiffs contend that because defendants, in their answer, raised certain issues as to the validity of the orders in the guardianship proceeding, Guardianship of Hiroko Kawakita, 271 P.2d 13, and as to Tomoya's standing in court, they could not go to trial until there was a final determination in the guardianship proceedings and in the case of United States v. Tomoya Kawakita, D.C., 96 F.Supp. 824. Subsequently affirmed on appeal, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, rehearing denied 344 U.S. 850, 73 S.Ct. 5, 97 L.Ed. 660, motion to modify death sentence denied, D.C., 108 F.Supp. 627. Both in their amended complaint and in their motion to vacate the orders in the guardianship proceeding, plaintiffs took the position that each of the orders therein was void on its face. In such a case they could be attacked and their invalidity shown at any time. 'It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. (Citations.)' In re Dahnke, 64 Cal.App. 555, 560, 222 P. 381, 384; see also Olivera v. Grace, 19 Cal.2d 570, 573-574, 122 P.2d 564, 140 A.L.R. 1328; Estate of Estrem, 16 Cal.2d 563, 571, 107 P.2d 36; Luckenbach v. Krempel, 188 Cal. 175, 177, 204 P. 591; People v. Davis, 143 Cal. 673, 675-676, 77 P. 651; Winrod v. Wolters, 141 Cal. 399, 402-403, 74 P. 1037; Kreiss v. Hotaling, 96 Cal. 617, 622-623, 31 P. 740; People ex rel. Bray v. City of Barnes City, 105 Cal.App. 618, 622-623, 288 P. 442. The proceedings instituted by Hiroko's and Tomoya's motions to vacate the orders in the guardianship matter therefore provide no excuse for plaintiffs' failure to bring this action to trial.

The issue raised as to Tomoya's standing in court is likewise unavailing. His judgment of conviction was entered on October 5, 1948, less than two years after the present action was commenced. It determined the issue of citizenship. The civil disabilities attendant upon his conviction and sentence to death must be determined by the laws of the United States, under which he was convicted. Beck v. Downey, 9 Cir., 191 F.2d 150, 153, judgment vacated on other grounds, 343 U.S. 912, 72 S.Ct. 646, 96 L.Ed. 1328, and reinstated, 9 Cir., 198 F.2d 626; Panko v. Endicott Johnson Corp., D.C., 24 F.Supp. 678, 682. Tomoya was convicted and sentenced to death in the federal courts for a federal offense. There is no provision for civil death in the law of the United States, as there is in the law of California. Civil death statutes are penal, and are strictly construed. Sections 2599-2604 of the Penal Code define the 'civil death' of persons sentenced to death or life imprisonment, but these statutes are not applicable to Tomoya's conviction and sentence to death. It cannot be presumed that the Legislature intended sections 2599-2604 of the Penal Code to apply to every convict, regardless of where he was convicted and imprisoned. The statutes themselves rebut any such presumption. The power given to the Adult Authority to restore certain civil rights of persons declared civilly dead, and the provision of section 2601 of the Penal Code which states that a 'person sentenced to imprisonment in the state prinson for life is thereafter deemed civilly dead', (italics added) indicate that California's civil death statutes are intended to apply only to persons convicted in the courts of this state and imprisoned in the prisons of this state.

Moreover, the record shows that Tomoya was absent from the state at the time the alleged fraudulent conspiracy was formed and implemented. He had, therefore, no first-hand knowledge of the facts on which plaintiffs' causes of action were based. Plaintiffs have thus made no showing that Tomoya's presence was necessary at the trial, or that the trial could not have been had in his absence.

Plaintiffs also contend that the proceedings in the probate court and in the case of United States v. Tomoya Kawakita, supra, constituted a partial trial of this action and thus suspended the operation of section 583 of the Code of Civil Procedure. This countention is without merit. The issues involved in those proceedings either could have been determined, in so far as was necessary, in the present action or were of no consequence in relation to this action. The cases cited by plaintiffs in support of their argument, City of Los Angeles v. Superior Court, 15 Cal.2d 16, 98 P.2d 207; Mercantile Investment Co. v. Superior Court, 218 Cal. 770, 25 P.2d 12, were cases in which some proceeding had been conducted in the same action in which the dismissal was sought. Guardianship of Hiroko Kawakita, supra, and United States v. Tomoya Kawakita, supra, however, were entirely separate actions in different courts and the proceedings therein could not constitute a partial trial of the present action.

Plaintiffs' final contention, that the appeals in Guardianship of Hiroko Kawakita, Cal.Sup., 271 P.2d 13, and United States v. Tomoya Kawakita, supra, made it impossible to bring this action to trial and necessarily suspended the operation of section 583 of the Code of Civil Procedure during the time consumed on appeal, is predicated upon the validity of their contention that the proceedings in these cases constituted a partial trial of the present action, and therefore cannot be sustained.

The order appealed from is affirmed.

SHENK, EDMONDS, SCHAUER and SPENCE, JJ., concur.

CARTER, Justice.

I dissent.

When the trial court based its dismissal of plaintiffs' action on the provisions of section 583 of the Code of Civil Procedure, it was guilty of a gross abuse of discretion which should not in fairness and justice be upheld by this court. Section 583 provides, in part, that 'The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff whenever plaintiff has failed for two years after action is filed to bring such action to trial'. The wording of this section makes clerk that it was meant to apply only to those actions which a plaintiff could and should have prosecuted without delay.

Where there is good reason for an extended delay, where a party is unable for good reason to proceed to trial or where it would be futile or impracticable to prosecute the action promptly, an exception to the dismissal provisions of section 583 is recognized. Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153; Judson v. Superior Court, 21 Cal.2d 11, 129 P.2d 361; Bank of America v. Superior Court, 84 Cal.App.2d 34, 189 P.2d 799. It is equally well recognized in California that the time, during which for all practical purposes going to trial would be impossible due to impracticability or otherwise, is to be excluded in determining whether an action has been brought to trial within the time limit provisions of section 583 of the Code of Civil Procedure. Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665; Westphal v. Westphal, 61 Cal.App.2d...