Lazelle v. Lovelady

• Decision Date: 12 August 1985
• Court: California Court of Appeals Court of Appeals
• Parties: Susan P. LAZELLE, et al., Plaintiffs and Appellants, v. Clyde Wallace LOVELADY, et al., Defendants and Respondents. Civ. F004228.

Page 145

217 Cal.Rptr. 145

171 Cal.App.3d 34

Susan P. LAZELLE, et al., Plaintiffs and Appellants, v. Clyde Wallace LOVELADY, et al., Defendants and Respondents.

Civ. F004228.

Court of Appeal, Fifth District, California.

Aug. 12, 1985.

[171 Cal.App.3d 36] Young, Wooldridge, Paulden, Self, Farr & Griffin and G. Neil Farr and Larry R. Cox, Bakersfield, for plaintiffs and appellants.

[171 Cal.App.3d 37] Clifford, Jenkins & Brown and Patrick J. Osborn, Bakersfield, for defendants and respondents.

OPINION

IVEY, Associate Justice. ^*

In this appeal from a judgment of dismissal, we are called on to decide whether the five-year period within which the action was required to be brought to trial was tolled while the case trailed on the civil active list and which version of Code of Civil Procedure section 1141.17 ¹ applies.

Susan P. Lazelle and Frank Mitchell (appellants) appeal from a judgment of dismissal entered against them and in favor of Clyde Wallace Lovelady and Five Star Trucking (respondents), as a result of appellants' failure to bring the case to trial within five years from the date of the filing of the complaint, and from the denial of various postdismissal motions. Appellants contend the trial court abused its discretion in dismissing the action and in denying their motions.

We conclude the trial court did abuse its discretion in granting the motion to dismiss and in entering the judgment of dismissal this finding obviates the need to discuss appellants' other contentions.

FACTS

On November 27, 1978, appellants filed a complaint against respondents and others ² alleging personal injuries and property damage suffered in an automobile accident in June 1978. Respondents answered on January 6, 1982. Pursuant to an "Order to Specially Set Case for Trial" (granted on July 6, 1983), the trial was set for September 14, 1983. On that date there were no courts available and the case began trailing on a day-to-day basis. On November 22, 1983, five days before the running of the five-year limitation period, appellants filed an "Election of Arbitration" pursuant to California Rules of Court, rule 1600 et seq.

After appellants' election to arbitrate, the case was taken off the civil active list and placed on the arbitration list. On November 27, 1983, the five-year period expired. On December 29, 1983, respondents filed a motion to dismiss for lack of prosecution pursuant to section 583, subdivision (b). ³ The motion was heard on January 19, 1984, and granted on February 22, 1984. The arbitration hearing was held on February 14, 1984, and the award was filed on April 5, 1984.

On February 24, 1984, appellants filed various motions including (1) motion to set aside and vacate judgment pursuant to sections 663a, and 663; (2) motion for reconsideration of motion to dismiss pursuant to section 1008; and (3) motion to set aside order of dismissal pursuant to section 473. On February 27, 1984, appellants filed a motion for new trial. The motions were denied on May 7, 1984.

DISCUSSION

I.

THE FIVE-YEAR LIMITATION PERIOD FOR BRINGING THE CASE TO TRIAL WAS TOLLED WHILE THE CASE WAS TRAILING ON THE CIVIL ACTIVE LIST.

At all times relevant hereto, section 583, subdivision (b) provided, in part, "[a]ny action ... shall be dismissed by the court in which the same shall have been commenced ... unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended."

Operation of section 583(b) is mandatory unless appellants can bring their case within one of the statutory exceptions or within an implied exception recognized by the court. (Camille's Corp. v. Superior Court (1969) 270 Cal.App.2d 625, 626, 75 Cal.Rptr. 868.) The burden of proving such exception rests with appellants. (Muller v. Muller (1960) 179 Cal.App.2d 815, 819, 4 Cal.Rptr. 419.)

When it is impossible, impracticable, or futile to bring the action to trial within the limitation period, the period is tolled. (Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 546, 105 Cal.Rptr. 339, 503 P.2d 1347, superseded by § 583.340.) "What is impossible, impracticable or futile 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. [Citation.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case." (Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216.) "A determination of due diligence requires an examination of the circumstances existing throughout the five-year period. [Citations.]" Cannon v. City of Novato (1985) 167 Cal.App.3d 216, 223, 213 Cal.Rptr. 132.

As this court has noted, reasonable diligence alone is not sufficient to protect a party from the operation of section 583, subdivision (b). Rather, "reasonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability or futility." (Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 105, 191 Cal.Rptr. 549, cited with approval in Moran v. Superior Court, supra, 35 Cal.3d at p. 238, 197 Cal.Rptr. 546, 673 P.2d 216.)

Appellants contend that, because their case was trailing for 69 days (from September 14, 1983, the date set for trial, to November 22, 1983, the date they elected arbitration) due to the unavailability of a judge and courtroom, it was impossible to bring the case to trial within the five-year limitation period, and the five-year period should be tolled for a minimum of 69 days.

Initially, it must be noted that appellants are responsible in large part for the situation in which they find themselves. While appellants--at least after obtaining the order specially setting the case--exercised reasonable diligence in attempting to bring it to trial, ⁴ their diligence in the earlier stages of the case is questionable. There is no explanation in the record for the delay of almost three years in serving the summons and complaint.

A comparison of the facts here and in Westinghouse Electric Corp. v. Superior Court, supra, 143 Cal.App.3d 95, 191 Cal.Rptr. 549 is instructive. In Westinghouse, the summons and complaint must have been served immediately--the answer was filed only 67 days after the complaint. One year and two days later, the plaintiff filed its first at-issue memorandum and the first settlement conference was set only four and a half months after that, or only 17 and one-half months after the filing of the complaint. Before the running of the statutory period, the plaintiff filed three more at-issue memoranda. The trial court found "that nearly all the delay in the case was either at the request of ... or for the benefit of the defendants; [and] that the delay was not due to the unreasonable conduct of [the plaintiff]." (Id., at p. 102, 191 Cal.Rptr. 549.) The trial court denied the defendant's motion to dismiss and this court denied the latter's petition for writ of mandate.

By comparison, in the case at bench nothing in the record suggests that respondents were dilatory at any stage of the proceedings below and, as noted above, nothing explains appellants' failure to serve respondents for almost three years.

Furthermore, appellants' delay in submitting the case to arbitration until five days before the running of the five years tends to undermine the purpose of arbitration, i.e., simple, economical and prompt resolution of disputes. ( § 1141.10.) As noted by the California Supreme Court in Moran v. Superior Court, supra:

" '... [Since] a major purpose of arbitration is to avoid ... labor and expense ..., it would seem unwise policy to encourage a delay in commencement of arbitration by permitting plaintiff ... to wait until the eleventh hour in the statutory life of an action before instituting arbitration by unilateral election while enjoying the protection of the tolling of the diligent prosecution statute [ § 583].' (Davenport [v. Vido Artukovich & Son, Inc. (1983) ] 141 Cal.App.3d at pp. 64-65 ....)" (Moran v. Superior Court, supra, 35 Cal.3d at p. 235, fn. 5, 197 Cal.Rptr. 546, 673 P.2d 216.)

"... The aim of section 583 is to 'promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed ... [and] to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time.' [Citations.]" (Id., at p. 237, 197 Cal.Rptr. 546, 673 P.2d 216.)

Tempering all of the foregoing, however, is a clear legislative and judicial preference for resolution of claims by arbitration, and for disposing of litigation on the merits rather than on procedural grounds.

In any event, notwithstanding appellants' questionable diligence, we conclude that the section 583(b) period was tolled for the 69 days the case trailed on the civil active list due to the unavailability of a judge and courtroom. Furthermore, we find no authority which even suggests that appellants may be deprived of that additional period within which to bring the case to trial, even though by electing to arbitrate they voluntarily withdrew the case from the civil active list. ⁵

Section 583, subdivision (b) is a procedural, not a jurisdictional, statute. "Its purpose is to 'prevent avoidable delay for too long a period ... not ... arbitrarily to close the proceedings at all events in five years ....' [Citation.] ...." (Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686, 91 Cal.Rptr. 908.)

A number of cases are instructive in the determination of what constitutes avoidable delay. In Nail v. Osterholm, supra, the complaint was filed on October 23, 1963, and a pretrial conference was held on February 9, 1967. A "few months later" on the day of trial the judge to whom the case was...