Lauriton v. Carnation Co.

• Decision Date: 31 October 1989
• Docket Number: No. F011868,F011868
• Citation: 263 Cal.Rptr. 476,215 Cal.App.3d 161
• Court: California Court of Appeals Court of Appeals
• Parties: Paul LAURITON, Plaintiff and Appellant, v. CARNATION COMPANY, Defendant and Respondent.

Page 476

263 Cal.Rptr. 476

215 Cal.App.3d 161

Paul LAURITON, Plaintiff and Appellant, v. CARNATION COMPANY, Defendant and Respondent.

No. F011868.

Court of Appeal, Fifth District, California.

Oct. 31, 1989.

LaCoste, Keller, Mello & Land, Kenneth Mello, Modesto, for plaintiff and appellant.

Brown, Hall, Spatola & Clair, Charles R. Spatola, Stockton, for defendant and respondent.

OPINION

FRANSON, Presiding Justice.

STATEMENT OF THE CASE

This is an appeal from an order dismissing appellant's complaint for failure to bring the action to trial within five years as required by Code of Civil Procedure section 583.310. ¹

Appellant filed a complaint against respondent on December 8, 1983. On October 16, 1987, appellant filed a voluntary petition for relief under chapter 7 of the Bankruptcy Act. Appellant received a discharge in bankruptcy on August 18, 1988. On September 30, 1988, appellant filed an at-issue memorandum in this case, and trial was scheduled for February 27, 1989. The case was dismissed for failure to prosecute on February 10, 1989.

Appellant contends the time during which he was in bankruptcy should have been excluded in computing the five-year period. Appellant argues it was impossible or impractical for him to prosecute this action during the bankruptcy. We conclude the trial court properly dismissed the action and affirm the judgment.

DISCUSSION

An action must be brought to trial within five years after it is commenced against the defendant. (§ 583.310.) Dismissal is mandatory subject only to extension, excuse, or exception provided by statute. (§ 583.360.) In computing the five-year period, the time during which (1) the jurisdiction of the court to try the action was suspended, (2) prosecution or trial of the action was stayed or enjoined, or (3) bringing the action to trial was "impossible, impracticable, or futile", is excluded. (§ 583.340.) A trial court's ruling on a motion to dismiss pursuant to these sections will be disturbed only upon a showing of a manifest abuse of discretion. (Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 1567, 234 Cal.Rptr. 161.)

Appellant contends his bankruptcy suspended the superior court's jurisdiction over the case. Although generally all causes of action possessed by a bankrupt vest in the trustee (Wood v. Lowe (1974) 39 Cal.App.3d 296, 299, 114 Cal.Rptr. 69), the bankruptcy itself does not divest the superior court of jurisdiction. The trustee is not stayed from prosecuting actions. (Danielson v. ITT Industrial Credit Co. (1988) 199 Cal.App.3d 645, 653, 114 Cal.Rptr. 69, see 2 Collier, Bankruptcy Manual (3d ed. 1989) ch. 1106, p 1106.02.) The trustee "may intervene in the action or may move to be substituted as party plaintiff." (Wood v. Lowe, supra, 39 Cal.App.3d 296, 301, 114 Cal.Rptr. 69.) Although appellant was not authorized to personally prosecute the action without authorization from the bankruptcy court (Danielson v. ITT Industrial Credit Co., supra, 199 Cal.App.3d at p. 656, 245 Cal.Rptr. 126), the superior court retained jurisdiction.

Similarly, this action was not stayed during the bankruptcy. "The Bankruptcy Act provides that the commencement or continuation of any legal proceeding against the debtor is automatically stayed by the filing of a petition in bankruptcy, until adjudication or dismissal of the petition." (Danielson v. ITT Industrial Credit Co., supra, 199 Cal.App.3d 645, 652, 245 Cal.Rptr. 126.) However, a debtor's cause of action is not tolled by the filing of a bankruptcy petition. (Ibid.) As noted above, the trustee may prosecute actions on behalf of the debtor.

Finally, appellant contends that during his bankruptcy it was impossible, impracticable or futile for him to prosecute this action. What is impossible 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. (Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216.) The critical factor in applying this exception to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting the case. (Ibid.) To establish reasonable diligence, the plaintiff must be able to demonstrate diligence in pursuit of his duty to expedite the resolution of the case at all stages of the proceedings, including the specific duty to use every reasonable effort to bring the matter to trial within the five-year period. (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340, 242 Cal.Rptr. 538.) The plaintiff has the burden of proving it was impossible to bring the action to trial within five years. (Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1013, 246 Cal.Rptr. 521.)

As noted above, the bankruptcy trustee, not appellant, had the legal capacity to prosecute this action during the bankruptcy. (Danielson v. ITT Industrial Credit Co., supra, 199 Cal.App.3d 645, 655, 245 Cal.Rptr. 126.) However, the situation was not totally out of appellant's control. Appellant could have sought relief...