Lopez v. Larson

• Decision Date: 30 March 1979
• Citation: 153 Cal.Rptr. 912,91 Cal.App.3d 383
• Court: California Court of Appeals Court of Appeals
• Parties: Alfredo LOPEZ, Plaintiff and Appellant, v. Kelvin K. LARSON, Defendant and Respondent. Civ. 19662.

Page 912

153 Cal.Rptr. 912

91 Cal.App.3d 383

Alfredo LOPEZ, Plaintiff and Appellant, v. Kelvin K. LARSON, Defendant and Respondent.

Civ. 19662.

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

March 30, 1979.

Hearing Denied June 7, 1979.

Jerome Cohen, George C. Lazar, Mary H. Mocine and William W. Monning, Salinas, for plaintiff and appellant

Best, Best & Krieger, Charles D. Field and Richard S. Ruben, Riverside, for defendant and respondent.

OPINION

KAUFMAN, Acting Presiding Justice.

Plaintiff appeals from a judgment dismissing the action because of his failure to prosecute it to trial within two years (Code Civ.Proc., § 583(a)). ¹

The complaint in this action was filed and summons issued on May 28, 1974. Named as defendant was Kelvin K. Larson (defendant), a grower of table grapes in Coachella. The plaintiffs were Alfredo Lopez and Jose David Perez. It was alleged as to each plaintiff that he was a United Farm Workers Union steward and a farm worker employed by defendant, earning $50 a day; that in March and April 1974, defendant commenced a campaign to coerce his employees to withdraw from the UFW and to join the Western Conference of Teamsters; that on April 10, 1974, defendant wrongfully discharged each plaintiff ² because of his refusal to withdraw from the UFW and to join the Teamsters. Each plaintiff sought an injunction requiring defendant to reinstate him, $50 per day in damages for loss of wages from the date of wrongful discharge to the date of reinstatement and $100,000 punitive damages. Named as attorneys for plaintiffs on the complaint were "COHEN, CARDER & ENGELHARDT" at a post office address in Indio. The complaint was dated April 13, 1974, and signed: "COHEN, CARDER & ENGELHARDT By Sanford N. Nathan." These attorneys were also members of the legal staff of UFW.

Nothing whatever was done by plaintiffs' attorneys in the prosecution of the case for two full years. In May 1976 Mr. Nathan, who in the interim had moved to Salinas, asked attorney Mary Mocine, who by then had joined the UFW legal staff in Salinas, to assume responsibility for prosecution of the action. On June 12, 1976, Ms. Mocine addressed a memorandum to Ms. Laura Safer, a volunteer at the UFW field office in Coachella, informing her of the necessity of serving defendant Larson but indicating that Ms. Safer would have to have a new summons issued because the original summons was on an outdated form. Ms. Safer made several trips to the court clerk's office in an attempt to get a new summons issued but met with some complexities, which, combined with her excessive busyness with other matters, resulted in her being unable to effect service on defendant by the time she had to leave Coachella near the end of July. Ms. Nancie Jarvis, a volunteer paralegal worker for UFW, thereafter undertook to see that service was made and finally effected service on defendant on September 23, 1976, nearly two years and four months after the complaint was filed and the summons issued.

After serving defendant, plaintiffs took no further action in the case so far as the record discloses for more than two months more. On December 1, 1976, two years and six months after the complaint was filed, defendant filed a motion to dismiss the action for plaintiffs' failure to prosecute it to trial within two years. Amended notices of motion were thereafter filed. On January 26, 1977, plaintiffs' opposition to the motion to dismiss was filed. It was signed by attorney Mocine and listed Cohen, Carder, Engelhardt & Mocine with a post office box address in Salinas as attorneys for plaintiffs. Following the filing of supplemental points and authorities by defendant, a hearing was held on February 14 at which time the matter was submitted. On February 24 the motion to dismiss was denied by an unsigned minute order.

Approximately two weeks later on March 9, 1977, defendant filed a motion, denominated a motion for reconsideration, in which he sought not really reconsideration but a clarification as to the bases for the order and as to whether the court had intended the ruling to be with or without prejudice. At the hearing on the motion on March 31, 1977, the court orally stated its recollection of its reasons for denying the motion to dismiss and stated that the order denying the motion was intended to be without prejudice. At the conclusion of the hearing counsel for defendant stated to the court in the presence of plaintiffs' counsel: "Ultimately, given the guidelines that you just suggested we may at a further point wish to present additional factual consideration as to the issues you have addressed . . . ."

On May 24, 1977, defendant filed a motion for reconsideration of his original motion to dismiss. On June 10, plaintiffs filed a request for voluntary dismissal of the action as to plaintiff Perez only and filed declarations and points and authorities in opposition to defendant's motion for reconsideration. The motion for reconsideration was argued that same day and submitted. By unsigned minute order dated July 21, 1977, the motion for reconsideration was granted and the motion to dismiss for lack of prosecution was set for hearing. On September 23, 1977, the matter was heard and submitted. The motion to dismiss was granted by an unsigned minute order dated September 28, 1977. On October 6, the court signed the judgment (denominated an order) dismissing the action. On October 26, plaintiff ³ moved for reconsideration of the judgment of dismissal. Plaintiff's motion was denied November 17, 1977.

Plaintiff contends that the trial court erroneously granted defendant's motion for reconsideration and, if not, that the court abused its discretion in dismissing the action or, alternatively, that in exercising its discretion, it employed an erroneous legal standard, considered and gave weight to several irrelevant factors, and failed to consider one or more factors required to be considered by rule 203.5(e) of the California Rules of Court. We have concluded that plaintiff's contentions are essentially without merit and that no abuse of discretion or erroneous exercise of discretion is demonstrated.

Propriety of Reconsideration

Plaintiff asserts that the facts upon which defendant sought reconsideration of the motion to dismiss were the same as those disclosed to the trial court in connection with the original motion to dismiss and that there is no authority for a motion to reconsider based on the same factual showing as that originally made. Although we are quite certain that, properly analyzed, they are reconcilable, the cases do evince some confusion about motions for reconsideration, particularly when the ruling on the original motion was granted and resulted in an immediately appealable order or judgment. (See, e. g., Lavrischeff v. Blumer, 77 Cal.App.3d 406, 409-410, 411, 143 Cal.Rptr. 567; Farrar v. McCormick, 25 Cal.App.3d 701, 705-706, 102 Cal.Rptr. 190; ⁴ cf. Daley v. County of Butte, 227 Cal.App.2d 380, 388, 38 Cal.Rptr. 693; see Max A. Goodman, The Power of the Trial Judge to Change a Prior Ruling on a Motion, 45 State Bar J. 483.) It is clear, however, that where a motion has been denied and the resulting order is nonappealable, a court may in its discretion permit a renewal of the motion and reconsider its original ruling even if the factual basis for the motion to renew or reconsider is the same as that supporting the original motion. (Kenney v. Kelleher, 63 Cal. 442, 444; Big Bear Mun. Water Dist. v. Superior Court, 269 Cal.App.2d 919, 928, 75 Cal.Rptr. 580; Josephson v. Superior Court, 219 Cal.App.2d 354, 358-359, 33 Cal.Rptr. 196; City & County of S. F. v. Muller, 177 Cal.App.2d 600, 603, 2 Cal.Rptr. 383; see Dunas v. Superior Court, supra, 9 Cal.App.3d at p. 239, 87 Cal.Rptr. 719 (quoted in fn. 4, Ante ); cf. Harth v. Ten Eyck, 16 Cal.2d 829, 832-834, 108 P.2d 675.)

In Harth v. Ten Eyck, supra, the California Supreme Court upheld the ruling on a motion for reconsideration, construing it as a motion to renew, notwithstanding that the original ruling on the motion resulted in what was probably an appealable order. (See 16 Cal.2d at p. 832, 108 P.2d 675.) Said the court: "When the motion to vacate was before the court on the conflicting affidavits already on file, the court's power then to weigh the conflicts was the same as upon first consideration thereof. In other words, the power of the court to resolve the conflicts was not exhausted by its conclusions on the order of denial, but it had the power to reexamine the evidence and arrive at a different conclusion, if it thought the ends of justice would best be served thereby. Unless an abuse of discretion was committed, the final order of the court should be permitted to stand." (16 Cal.2d at pp. 833-834, 108 P.2d at pp. 677-678.)

As this court stated in Big Bear Mun. Water Dist. v. Superior Court, supra: "It is settled that a court has jurisdiction to reconsider its ruling on a motion after having once denied it. (Citations.) It is true that where no new grounds are shown a court is not obliged to grant a motion for reconsideration (citations), but this is not the equivalent of saying that a court has no jurisdiction to reconsider where no new grounds are shown. In the case under review, the record reveals that the judge was of the view that his original ruling was intended to be without prejudice to a motion to reconsider." (269 Cal.App.2d at p. 928, 75 Cal.Rptr. at p. 586.) Similarly, in the case at bench, the court expressly clarified its original order of denial by stating that it was intended to be without prejudice.

Plaintiff's reliance on Code of Civil Procedure section 1008 is misplaced. As it read at the time of the proceedings below ⁵ section 1008 did not purport to be an authorization statute, nor did it purport to prescribe the requirements for a motion to renew. It simply provided that when a subsequent application for the same order upon an alleged...