Hughes v. Kimble
| Decision Date | 02 April 1992 |
| Docket Number | No. B055581,B055581 |
| Citation | 5 Cal.App.4th 59,6 Cal.Rptr.2d 616 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Corene HUGHES, Plaintiff and Appellant, v. Roy KIMBLE, et al., Defendants and Respondents. |
Earl L. Williams, Los Angeles, for defendants and respondents.
DeWitt W. Clinton, County Counsel, Frederick R. Bennett, Asst. County Counsel as amicus curiae.
Corene Hughes appeals from an order of dismissal made under sections 583.310 and 583.360 of the Code of Civil Procedure for failure to bring the case to trial within five years. 1 The dismissal order was entered on the court's own motion in favor of the defendant Kimble. 2
We hold that section 583.340 3 does not require the court to exclude time during which Kimble was in default from the five years allowed to bring the case to trial, and that the allowed time passed without the case being brought to trial or otherwise concluded. We therefore affirm.
Hughes filed her original complaint for breach of contract, possession of personal property, and conversion on March 27, 1985. Kimble answered in late May or early June of 1985.
On October 30, 1986, Hughes filed an amended complaint, which was not answered. On March 17, 1987, Hughes's request for clerk's entry of default was filed, and the default was entered the same date.
After the clerk's entry of default, the matter lay dormant until February 10, 1989, when Hughes was notified that the case had been calendared for a trial setting conference, or alternatively, for dismissal under section 583.420, subdivision (a)(2)(B). 4 Hughes's attorney appeared at the trial setting conference on April 10, 1989, advised the court that Kimble's default had been entered, and presented the court with the original notice of entry of default in the court's file. The court thereupon took the trial setting conference and the hearing regarding discretionary dismissal off calendar, based upon the entry On September 21, 1990, the court served Hughes with a second notice of intention to dismiss on the court's own motion. This second notice indicated near the bottom of the sheet, below the signature of the presiding judge and next to the heading, "Order of Dismissal," that mandatory dismissal for failure to comply with section 583.310 was now being considered.
of the default. Counsel apparently interpreted this action by the court as indicating the court would never dismiss the case prior to the entry of a default judgment.
Hughes argued that the action could not be dismissed under section 583.410, because she had a meritorious claim and a reasonable excuse--serious health problems--for her delay in prosecuting the case, and because Kimble had suffered no prejudice from the delay; that the interests of justice would not be served by dismissing the action; and that the action could not be dismissed under sections 583.310 and 583.360, because the time to bring the case to trial had been tolled since March 17, 1987, the date of entry of Kimble's default.
The case was ordered dismissed on November 7, 1990. A motion for reconsideration was heard and denied on December 12, 1990. This timely appeal followed.
Hughes's primary contention is that the action could not be dismissed under sections 583.310 and 583.360, first, because the court's motion was brought under section 583.420, and Hughes consequently had no notice that dismissal under the former sections would be considered; and secondly, because the trial court had a mandatory duty to exclude from the time to bring the case to trial a period of three years during which Kimble was in default.
Hughes additionally contends that: (1) the action could not be dismissed under section 583.420, because Hughes had a meritorious claim and a reasonable excuse for her delay in prosecution, and Kimble had not been prejudiced by the delay; (2) the trial court could have deferred dismissal of the action, pending Hughes's prompt application for a default judgment; (3) the trial court had the authority to reconsider its decision to dismiss; (4) this court has authority under section 473 to vacate the dismissal on the ground that Hughes's delay in prosecuting the action was owing to excusable neglect.
Appearing in this appeal as amicus curiae, the Superior Court contends, first, that section 583.340 does not require in every case that time during which a defendant is in default be excluded from the five-year time to bring the case to trial, and secondly, that if such a requirement were imposed, the courts' ability to eliminate delay and maintain a current docket would be seriously impaired.
1. Hughes Waived Any Lack of Notice of the Motion For Mandatory Dismissal.
The record does not support Hughes's contention that she had no notice that mandatory dismissal under sections 583.310 and 583.360 would be considered by the court. Although we agree that the court's notice of motion was regrettably cryptic, Hughes waived the obscurity by actually addressing in her written pleadings each potential basis for dismissal.
The court's notice of motion was entitled, clearly enough, "Notice of Intention to Dismiss on Court's Motion." However, the text of the motion was puzzling, if not actually misleading, as to the motion's basis, stating that cause was ordered to be shown why the case should not be dismissed "for lack of prosecution pursuant to Section ________ Code of Civil Procedure." Nothing was written into the underlined blank space in the foregoing text. In print, underneath the line, there appeared a reference to section 583.420, subdivision (a)(2)(B). A second reference to section 583.420(a)(2)(B) appeared in the unsigned "Order of Dismissal," below the Notice. This second reference was also in print, beneath an underlined blank space into which nothing was written. Next to the heading, "Order of Dismissal," there appeared the handwritten gloss, "583.310."
The above instances of careless drafting in the court's Notice indeed tend to raise doubt whether adequate notice of the basis of dismissal was afforded.
Enigmatic though the Notice may have been, however, Hughes was not ultimately deprived of a hearing on the issue of dismissal under sections 583.310 and 583.360, for Hughes's counsel addressed that issue in her opposition to the court's motion and in her motion for reconsideration. In both pleadings, Hughes argued that dismissal under section 583.360 was improper, because the five-year limitation of time provided in section 583.310 was tolled for three of the five years since the action was filed, owing to Kimble's default.
The circumstance that Hughes did argue the appropriateness of a mandatory dismissal distinguishes this case from Maguire v. Collier (1975) 49 Cal.App.3d 309, 122 Cal.Rptr. 510, cited by Hughes. That case was dismissed by the trial court under both the discretionary provisions of former section 583(a) and the mandatory provisions of former section 583(b). 5 The Court of Appeal found dismissal under the mandatory statute improper on the same basis as one being urged here--that the trial court improperly failed to exclude from the five-year period times when the defendant was in default. (49 Cal.App.3d at p. 313, 122 Cal.Rptr. 510.) Although mandatory dismissal was found improper, the dismissal might yet have been sustained as a proper exercise of the court's discretion under section 583(a). However, the defendant's dismissal motion addressed itself exclusively to subdivision (b), with no mention whatever of subdivision (a), the plaintiff's opposition was not directed to subdivision (a), there was no reporter's transcript from which it could be determined whether subdivision (a) was argued orally, and the parties made contradictory assertions as to whether it was or was not. Under these circumstances, the Court of Appeal found that the plaintiff did not have and did not waive notice of the discretionary basis of dismissal. (Id. at p. 314, 122 Cal.Rptr. 510.)
Here, by contrast, both in Hughes's opposition to the court's motion and in her motion for reconsideration, she argued the issue of mandatory dismissal, as well as the issue of discretionary dismissal. She thus waived any obscurity or ambiguity in the court's notice. Dismissal of the action was not improper on the ground of lack of notice.
2. Section 583.340(c) Did Not Preclude Dismissal of the Action. The Determination of Whether Prosecution of an Action Was "Impossible, Impracticable, or Futile" Within the Meaning of Section 583.340(c) is a Matter Within the Discretion of the Trial Court.
In support of her claim that the time in which Kimble was in default was required to be excluded from her time to bring the case to trial, Hughes relies upon the following language in Maguire v. Collier (1975) 49 Cal.App.3d 309, 122 Cal.Rptr. 510: (49 Cal.App.3d at p. 313, 122 Cal.Rptr. 510.)
The foregoing rule of mandatory exclusion has been accepted without extensive analysis in some subsequent appellate court decisions. (See, e.g., Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498-499, 255 Cal.Rptr. 8; Alvarado Community Hospital v. Superior Court (1985) 173 Cal.App.3d 476, 485, 219 Cal.Rptr. 52; Ippolito v. Municipal Court (1977) 67 Cal.App.3d Originally a judicially created exception to the five-year statute, the "imposs...
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