Lakkees v. Superior Court
| Decision Date | 25 July 1990 |
| Docket Number | No. E007655,E007655 |
| Citation | 271 Cal.Rptr. 845,222 Cal.App.3d 531 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Adeeb LAKKEES, Petitioner, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent. Nancy J. LAKKEES, Real Party in Interest. |
No appearance for respondent.
Tuckerman, Thompson & Sackey, Ontario, and Richard P. Langevin, Ontario, for real party in interest.
In this original proceeding brought before this court via a petition for writ of prohibition or mandate, petitioner Adeeb Lakkees seeks to have the trial court compelled to dismiss real party Nancy Lakkees' petition for dissolution of marriage insofar as she seeks judgment on reserved issues. We issued the alternative writ and set the matter for hearing, but now deny relief, holding that the five-year statute is tolled during the period in which a child support order is in effect with respect to a child of the marriage under the age of eighteen years. 1
Due to the narrow issue presented here, we need not recite the procedural or factual history of the case in detail. The petition for dissolution of marriage was filed by Nancy on March 3, 1983. 2
There were four minor children of the marriage, the youngest of whom was born on September 25, 1971.
In his response to the petition, Adeeb agreed that the marriage should be dissolved. Presumably his request for an adjudication of property rights also mirrored that in Nancy's petition.
On October 14, 1983, Nancy moved to bifurcate the issue of status from the remaining issues, and to have status adjudicated. The minute order indicates that the motion to bifurcate was granted; Nancy was sworn and gave testimony, and the court granted an interlocutory judgment of dissolution. A judgment was signed by the court on the same date and entered October 17, 1983, indicating that neither Adeeb nor his counsel appeared at the hearing and also that the determination of status was a "default or uncontested" matter.
Nancy asserts that "the parties have vigorously prosecuted this case" by reference to a docket entry attached to her answer. While that docket does reflect that the parties have been almost constantly in court from September, 1987 on, it does not fill in the four year gap preceding that date. The record does, however, also include a lengthy custody and support order entered in 1985. In any event, as the motion was brought under the provisions for mandatory dismissal, not the discretionary provisions, the parties' diligence is not strictly relevant. (Cf.Code Civ.Proc., §§ 583.310, 583.410-420.)
On January 5, 1990, Adeeb filed a motion to dismiss for failure to bring to trial within five years under the mandatory dismissal statute. (Code Civ.Proc., § 583.310.) The trial court denied the motion, finding that there had been a "partial trial" of the case and citing City of Los Angeles v. Superior Court (1940) 15 Cal.2d 16, 98 P.2d 207.
Adeeb filed a petition for mandate or prohibition with this court; however, we summarily denied the petition due to the unexplained failure to submit an adequate record. (Cal.Rules of Court, rule 56, subd. (c).) At that time trial was pending immediately, but it was continued until February 16, 1990, and this gave Adeeb the opportunity to file the instant petition on February 7, 1990, submitting at the same time a record adequate to permit intelligent review. Adeeb also obtained from the trial court a document entitled "Certification" in which the trial court explicitly stated that, in making its ruling, it relied on the determination of status in finding a "partial trial," and not the hearings in which pendente lite relief was sought. 3
On this second application we issued the alternative writ.
Our original concern, and the focus of the inquiry as presented to the trial court, was whether the determination of status constituted a "partial trial" so as to satisfy the requirements of the five-year statute. In her answering brief, however, Nancy raised for the first time the question of the tolling or extending provisions of Code of Civil Procedure section 583.350, read in conjunction with section 583.161. We now consider the case as presenting two separate issues, and consider them in sequence.
As the parties and the trial court recognized, where there has been a "partial trial", the five-year statute does not apply. (See City of Los Angeles v. Superior Court, supra, 15 Cal.2d 16, 20-22, 98 P.2d 207.) In a case tried to a jury, it is sufficient that the jury be impanelled and sworn, even if it is subsequently discharged. (Hartman v. Santamarina (1982) 30 Cal.3d 762, 765-767, 180 Cal.Rptr. 337, 639 P.2d 979.) Where a case is tried to the court, "trial" commences where one witness is sworn. (Miller & Lux v. Superior Court (1923) 192 Cal. 333, 342, 219 P. 1006.) In this case, Nancy was not only sworn, but also testified in the bifurcated status proceedings.
However, the question is not so easily resolved. Adeeb did not contest the dissolution itself and in fact concurred in Nancy's request. A default judgment is not a trial for the purposes of the five-year statute, and this is so even though there is a hearing involving evidence with respect to the judgment. (Langan v. McCorkle (1969) 276 Cal.App.2d 805, 809, 81 Cal.Rptr. 535.) As that court noted, "A trial is generally considered an adversary proceeding for the determination of a contested issue arising out of pleadings in which a fact or conclusion of law is maintained by one party and controverted by the other." (At page 808, 81 Cal.Rptr. 535; see also Hendrix v. Hendrix (1985) 171 Cal.App.3d 859, 862, 217 Cal.Rptr. 609.) In this context, it is apparent that Nancy's testimony (which is not part of the record) in support of the joint request for dissolution did not constitute a trial. Nothing with respect to the dissolution had been put in issue by the pleadings and nothing was controverted; whether labelled "default" or "uncontested," the judgment did not result from a trial. 4
We recognize that Civil Code section 4511 prohibits an automatic judgment of dissolution by default, and requires the presentation of evidence in support of the claimed grounds for dissolving the marriage. This provision is not unique in the law; in actions for damages a "prove-up" evidentiary hearing is commonly required before judgment may be entered (Code Civ.Proc., § 585, subd. (b)). As in Langan v. McCorkle, supra, if the opposing party has either defaulted or failed to dispute the essential allegations of the complaint, the fact that the law requires that some proof be made of the right to relief does not convert a hearing into a trial.
Another reason exists for rejecting this basis for the ruling below. As the Supreme Court has explained, in determining whether court activity constitutes a "partial trial," "[t]he essential thing is that the action be brought to a stage where final disposition is to be made of it." (Berri v. Superior Court (1955) 43 Cal.2d 856, 860, 279 P.2d 8.) Although it is immaterial that the prospective disposition of the action unravels, or even that the creation of a "partial trial" is a formality not realistically intended to lead to judgment (Hartman, supra, 30 Cal.3d 762, 180 Cal.Rptr. 337, 639 P.2d 979), it is essential that the proceedings which are urged as taking the case out of the five year statute be capable of leading to a final disposition. (Hendrix v. Hendrix, supra, 171 Cal.App.3d at p. 862-863, 217 Cal.Rptr. 609.)
In the cases finding a sufficient trial, the entire case was calendared and set for hearing. Here, Nancy specifically sought to have the issue of status bifurcated. No trial date had been set for the reserved issues. Although the cases do not require that the plaintiff establish, as a matter of fact, that he is prepared to try the case to completion at the time of the partial trial (it is clear from the details of several of the cases that plaintiff was not so prepared), here the bifurcation made the legal fiction that the entire case was ready for disposition unsustainable.
Analogous is the determination of a motion for partial summary judgment or summary adjudication of issues. The determination of such a motion is not a "partial trial" for our purposes. (Lemaire, Faunce & Katznelson v. Cox (1985) 171 Cal.App.3d 297, 301, 217 Cal.Rptr. 281.) Where the petitioner in an action for dissolution specifically requests bifurcation so that the marriage may be dissolved immediately, it cannot be said that the case has been "brought to a stage where final disposition is to be made of it."
Nancy's argument depends on the interrelation of Code of Civil Procedure sections 583.161 and 583.350. The former reads "No petition filed pursuant to Section 4503 of the Civil Code shall be dismissed pursuant to this chapter [i.e. Chapter 1.5 of Title 8 of Part 2, entitled "Dismissal for Delay in Prosecution"] if an order for child support has been issued in connection with the proceeding and the order has not been revoked by the court or has not terminated pursuant to sections 196, 196.5, and 4700 of the Civil Code." Section 583.350 provides that "[i]f the time within which an action must be brought to trial pursuant to this article is tolled or otherwise extended pursuant to statute with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial, the action shall not be dismissed pursuant to this article if the action is brought to trial within six months after the end of the period of tolling or extension."
As noted above, the trial court entered an order for child support in 1985. Nancy asserts, and Adeeb does not deny, that it remained...
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...minority. Any other conclusion would nullify what it expressly says about pendente lite orders. (See Lakkees v. Superior Court (1990) 222 Cal. App.3d 531, 538-539, 271 Cal.Rptr. 845.) And, as between two sets of inconsistent statutes, the more specific controls over the more general. (Code ......
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