Marriage of Dunmore, In re, C020588

• Decision Date: 30 May 1996
• Docket Number: No. C020588,C020588
• Citation: 53 Cal.Rptr.2d 450,45 Cal.App.4th 1372
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3879, 96 Daily Journal D.A.R. 6260 In re the MARRIAGE OF Kathleen and Sidney B. DUNMORE. Kathleen DUNMORE, Appellant, v. Sidney B. DUNMORE, Respondent.

Page 450

53 Cal.Rptr.2d 450

45 Cal.App.4th 1372, 96 Cal. Daily Op. Serv. 3879,

96 Daily Journal D.A.R. 6260

In re the MARRIAGE OF Kathleen and Sidney B. DUNMORE Kathleen DUNMORE, Appellant, v. Sidney B. DUNMORE, Respondent.

No. C020588.

Court of Appeal, Third District, California.

May 30, 1996.

Review Denied Aug. 28, 1996.

[45 Cal.App.4th 1374] Judith A. Wiswell, Folsom, for Appellant.

Eisen and Johnston, Jay-Allen Eisen, Marian M. Johnston, Dick, Hemmer & Wagner, Anthony S. Dick, Sacramento, for Respondent.

BLEASE, Acting Presiding Justice.

Kathleen Dunmore (Kathleen) appeals from an order of dismissal, under Code of Civil Procedure sections 583.310-583.360, ¹ for failure to bring to trial within five years after A judgment dissolving the status of the marriage was entered prior to the expiration of five years from commencement of the action. The judgment followed an uncontested, bifurcated proceeding, as authorized by Family Code section 2337. There remained to be resolved issues of child support, spousal support and property. ²

the action was commenced the issues remaining after dissolution of her marriage to Sidney Dunmore (Sidney).

The trial court ruled that the bifurcated proceeding did not constitute a "trial" within the meaning of the dismissal statutes because it was uncontested. Kathleen claims that dismissal is barred under section 583.161, subdivision (c), which provides that a petition for dissolution of the marriage shall not be dismissed if "a separate trial on the issue of the status of the marriage has been conducted pursuant to Section 2337 of the Family Code."

We agree. We will conclude that "trial", as used in section 583.161, includes an adjudication of the status of the marriage in a judgment, whether the proceeding for dissolution of the status of the marriage is contested or uncontested.

We will reverse the judgment (order of dismissal).

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Kathleen filed the petition to dissolve the 16-year marriage on November 18, 1988, on the ground of irreconcilable differences. On May 11, 1990, Sidney filed a response, also requesting dissolution of the marriage on this ground. On July 12, 1991, the court approved a stipulation bifurcating the issue of status of the marriage to be set for an uncontested hearing upon the request of either party.

The issue of the dissolution of the status of the marriage was heard in an uncontested proceeding on October 18, 1991. Sidney testified that the differences were irreconcilable and the court rendered a judgment of dissolution terminating the marital status on that date. A judgment of dissolution of marriage was entered the same day.

On October 20, 1994, Sidney requested that the court dismiss the matter on its own motion under section 583.360. The court issued an order to show cause why it should not dismiss the matter. The matter was continued and eventually came on for hearing on January 27, 1995.

Kathleen argued that the trial court should not dismiss the matter because she accepted what Sidney said he could afford to pay in child and spousal support and agreed to delay action in the case until Sidney could afford to fund the litigation. ³ In the alternative she argued that the case should not be dismissed under section 583.161, subdivision (c), because there was a "bifurcation trial in this case."

The trial court decided that section 583.161, subdivision (c), is inapplicable to prevent dismissal because the issue of termination of the status of the marriage was uncontested, hence, there was no "trial." It ordered that the proceeding be dismissed.

DISCUSSION

I

Section 583.310 provides that: "An action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.360, subdivision (a) implements this provision in directing that the action must be dismissed upon notice to the parties if it is not brought to trial within this time limit. ⁴ A similar provision has been Once a "trial" has commenced the rule is satisfied. The term "trial" has different meanings in different contexts. (See, e.g., McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 530, 105 Cal.Rptr. 330, 503 P.2d 1338, ["trial" as defined in the new trial statute does not mean the same as "trial" as used in the five year dismissal statute].) Whether a "partial trial" counts as a "trial" for purposes of the dismissal statutes has given rise to numerous appellate opinions. (See, e.g., 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, §§ 150-156, and cases cited therein.)

part of the statutory law since Statutes of 1905, chapter 271, page 244.

We briefly set out the lines of definition traced by the case law. The archetypal "trial" occurs when all of the issues tendered by the pleadings are heard before a trier of fact resulting in a decision upon which is entered one final judgment. Once such a trial is commenced, the five-year statute is satisfied regardless whether the trial proceeds immediately and continuously to such a resolution. (See, e.g., City of Los Angeles v. Superior Court (1940) 15 Cal.2d 16, 19-22, 98 P.2d 207.)

Certain proceedings may not qualify. Preliminary law and motion hearings, even though contested and involving the resolution of disputed issues of fact, may not qualify. (See, e.g., Superior Oil Co. v. Superior Court (1936) 6 Cal.2d 113, 56 P.2d 950, preliminary injunction.) An uncontested hearing to prove up damages for a default judgment, while subject to a new trial motion (see Don v. Cruz (1982) 131 Cal.App.3d 695, 704-705, 182 Cal.Rptr. 581), is not a "trial" for purposes of the dismissal statute. (Langan v. McCorkle (1969) 276 Cal.App.2d 805, 81 Cal.Rptr. 535.) However, an uncontested hearing on the facts held after the defendant files an answer but fails to appear at the time set for trial, is a "trial" within the meaning of the dismissal statutes. (Briley v. Sukoff (1979) 98 Cal.App.3d 405, 410, 159 Cal.Rptr. 452.)

In some situations a hearing may count as a trial for purposes of the dismissal statutes even though no issues of fact are determined. Generally speaking, a trial is the (final) determination of an issue of law or fact. (See Berri v. Superior Court (1955) 43 Cal.2d 856, 859, 279 P.2d 8.) Hence, an order sustaining a demurrer without leave to amend is viewed as a "trial" for purposes of the dismissal statutes where a judgment of dismissal ordinarily would follow as a matter of course. (Id. at pp. 860-861, 279 P.2d 8.) However, where leave to amend is granted following an order sustaining a demurrer, the order does not constitute a "trial" because it is not a "final determination of the rights of the parties." (E.g., Ross v. George Pepperdine Foundation (1959) 174 Cal.App.2d 135, 139, 344 P.2d 368.)

The grant of a motion for summary judgment on the law for lack of a triable issue of fact, like an order sustaining a demurrer without leave to amend, is a "trial" for purposes of the dismissal statutes. (Southern Pacific Co. v. Seaboard Mills (1962) 207 Cal.App.2d 97, 104, 24 Cal.Rptr. 236.) However, (at least under the 1965 amendment of the summary judgment statute) an order granting the defendant's motion for partial summary judgment is not a "trial" because it is not a "final disposition" of the action. (King v. State of California (1970) 11 Cal.App.3d 307, 311-312, 89 Cal.Rptr. 715; summary judgment statute then in effect "by implication, permits an appeal only after the trial court enters a judgment disposing of the entire lawsuit.")

The application of this case law on partial trials to an interlocutory judgment of dissolution of marriage was tendered in Lakkees v. Superior Court (1990) 222 Cal.App.3d 531, 271 Cal.Rptr. 845. The husband in a marital dissolution proceeding petitioned for a writ of mandate to compel the lower court to dismiss the wife's petition for failure to bring the matter to trial within five years. The Court of Appeal denied the writ on the ground there was an outstanding order for child support which precluded dismissal under section 583.161. (Id. at pp. 538-539, 271 Cal.Rptr. 845.) Before reaching that ground the court rejected the wife's claim that an interlocutory judgment dissolving the status of the marriage barred dismissal under the partial trial doctrine. It did so on two grounds.

It first noted that the bifurcated hearing on marital status was uncontested. Lakkees analogized this proceeding to a prove-up hearing following the entry of default in an ordinary civil action, which, as noted, was held not to be a "trial" for purposes of the dismissal statute in Langan v. McCorkle, supra. (Lakkees v. Superior Court, supra, 222 Cal.App.3d at pp. 536-537, 271 Cal.Rptr. 845.) Lakkees also analogized this proceeding to a motion for partial summary judgment or summary adjudication of issues, citing Lemaire, Faunce & Katznelson v. Cox (1985) 171 Cal.App.3d 297, 301, 217 Cal.Rptr. 281, a case following King, supra. (Lakkees, supra, 222 Cal.App.3d at pp. 537-538, 271 Cal.Rptr. 845.) In Lemaire, like King, the partial summary judgment was granted the defendant and could not result in a final judgment prior to the entry of a final judgment.

Lakkees is the focal point of the parties' arguments in this case.

II

Kathleen contends that section 583.161, subdivision (c), bars dismissal for failure to prosecute this proceeding.

Sidney, relying on Lakkees, contends the section is inapplicable because an uncontested proceeding regarding the status of the marriage is not a "trial". Kathleen replies that Lakkees' views on the meaning of "trial" are dicta (see In re Marriage of Macfarlane and Lang (1992) 8 Cal.App.4th 247, 256, 10 Cal.Rptr.2d 157) and incorrect.

We need not resolve these latter claims for they do not address the pertinent statute. Lakkees' views on the meaning of the word "trial," correct or not, are addressed to the meaning of the term in different statutes (§§ 583.310-583.360)...