Kowalski v. Cohen

• Decision Date: 27 July 1967
• Citation: 252 Cal.App.2d 977,60 Cal.Rptr. 874
• Court: California Court of Appeals Court of Appeals
• Parties: Paul KOWALSKI, individually and as a partner of the firm doing business under the name of Metro Rug Washing Co., Plaintiff and Appellant, v. Simon J. COHEN, individually and as a partner of the firm doing business under the name of Metro Rug Washing Co., First Pioneer Company and Home Mutual Savings and Loan Association, Defendants and Respondents. Civ. 23219.

Page 874

60 Cal.Rptr. 874

252 Cal.App.2d 977

Paul KOWALSKI, individually and as a partner of the firm doing business under the name of Metro Rug Washing Co., Plaintiff and Appellant, v. Simon J. COHEN, individually and as a partner of the firm doing business under the name of Metro Rug Washing Co., First Pioneer Company and Home Mutual Savings and Loan Association, Defendants and Respondents.

Civ. 23219.

Court of Appeal, First District, Division 2, California.

July 27, 1967.

Rehearing Denied Aug. 28, 1967.

Hearing Denied Sept. 21, 1967.

Paul E. Sloane, San Francisco, for appellant.

Cyril N. Volk, San Francisco, for respondents.

TAYLOR, Associate Justice.

Plaintiff appeals from an order dated March 5, 1965, dismissing his action for failure to bring the matter to trial within the time required by section 583 of the Code of Civil Procedure. Plaintiff argues that: (1) the court was without jurisdiction to grant defendants' motion for dismissal as the proper notice was not given; (2) the 5-year statutory limitation provided for in said section ran from the time of the filing of the amendment to the original complaint; (3) defendants' claim for separate affirmative relief and damages prevented a dismissal; and (4) defendants produced no evidence that they were prejudiced or damaged because of plaintiff's delay. We have concluded that there is no merit in any of these contentions.

The facts are not in dispute. On October 10, 1959, the parties entered into a partnership agreement, whereby plaintiff agreed to purchase for $4,500 a one-half interest in defendants' Metro Rug Washing Company in San Francisco. On November 25, 1959, plaintiff filed his complaint in this action, alleging that defendants had failed to convey to him a one-half interest in the partnership. On February 17, 1960, plaintiff recorded a lis pendens. On March 24, 1960, plaintiff amended his complaint by changing the cause of action to one for fraud seeking a constructive trust. On June 1, 1960, defendants filed an answer denying the allegations of the amended complaint, and a counterclaim for $3,000 damages allegedly sustained by defendants because of plaintiff's refusal to devote any of his time and efforts to the partnership. After pre-trial had been set for December 1, 1960, the matter was ordered off calendar on the motion of plaintiff in order that additional necessary parties be identified and brought into the action and to commence additional discovery proceedings. Plaintiff apparently believed he was protected by the lis pendens and obtained the consent of his counsel to a substitution of attorneys.

On February 4, 1965, defendants noticed for February 10 a motion to dismiss based on plaintiff's failure to bring the matter to trial within the mandatory statutory period of 5 years. On February 8, 1965, plaintiff filed a memorandum to set and on the following day (February 9, 1965) moved for an extension of time to bring the matter to trial. At the February 10 hearing on the motion, the court granted defendants' motion to dismiss the action on the basis of the discretionary 2-year period of the statute. On March 1, 1965, the court granted plaintiff's motion to reconsider. After an extensive discussion of both the discretionary (2-year) and mandatory (5-year) statutes of limitations provided by section 583 of the Code of Civil Procedure, ¹ and the effect of defendants' counterclaim on plaintiff's motion, the court entered its order dismissing the action on both grounds.

Plaintiff first argues that defendants failed to give proper notice of the motion to dismiss the complaint on the basis of the discretionary 2-year provision of the statute. The record indicates that the notice filed mentioned only the 5-year provision of section 583. However, both the 2 and 5-year periods of limitation were argued and no objections made by plaintiff's counsel either at the hearing of February 10 or the subsequent hearing of March 1. Plaintiff's appearance and participation at the hearings operated as a waiver of any objections he may have had predicated upon an asserted lack of notice (Estate of Pailhe, 114 Cal.App.2d 658, 661--662, 251 P.2d 76).

Plaintiff, without citation of any authority, argues that the mandatory 5-year period is not measured from the filing of his original complaint (November 25, 1959), but from the filing of his amended complaint alleging the new cause of action for a constructive trust (March 24, 1960). This argument was settled in the first case upholding the retroactive application of the present form of the statute (Rosefield Packing Co. v. Superior Court, 4 Cal.2d 120, 124, 47 P.2d 716). In Rosefield, the court held that the statutory period commences to run from the filing of the original complaint and not from the filing of any subsequent amended complaint. The court pointed out, at page 124, 47 P.2d 716, that to construe the statute, as here urged by plaintiff, would require a revision of the phrase, Within 5 years after the plaintiff has filed his action, to, Within 5 years after the plaintiff has filed his last amended complaint (Douglas v. Superior Court, 94 Cal.App.2d 395, 398, 210 P.2d 853; Anderson v. City of San Diego, 118 Cal.App.2d 726, 258 P.2d 842).

The major contention on appeal is that the action cannot be dismissed because the 5-year period was extended to June 1, 1965, by defendants' separate and affirmative claim for relief. As indicated above, on June 1, 1960, defendants filed an answer and a pleading, denominated a counterclaim, seeking damages for $3,000 for plaintiff's failure to devote himself to the business of the partnership. Plaintiff now asserts that defendants' pleading extends the 5-year period on the complaint and that, in any event, the complaint cannot be dismissed before the dismissal of...