Martin v. Cook

• Decision Date: 31 March 1977
• Citation: 68 Cal.App.3d 799,137 Cal.Rptr. 434
• Parties: Donald L. MARTIN, Plaintiff and Respondent, v. Orrin S. COOK, M.D., Defendant and Appellant. Civ. 16022.
• Court: California Court of Appeals Court of Appeals

Page 434

137 Cal.Rptr. 434

68 Cal.App.3d 799

Donald L. MARTIN, Plaintiff and Respondent, v. Orrin S. COOK, M.D., Defendant and Appellant.

Civ. 16022.

Court of Appeal, Third District, California.

March 31, 1977.

Rehearing Denied April 15, 1977.

Hearing Denied June 2, 1977.

Bostwick & Rowe, San Jose, for plaintiff-respondent.

Wilke, Fleury, Hoffelt & Gray, Sacramento, for defendant-appellant.

EVANS, Associate Justice.

In this medical malpractice proceeding, defendant physician appeals from a jury verdict and judgment awarding $100,000 in damages to the plaintiff. Defendant does not appeal the propriety of the damage award based upon the facts presented. He confines his attack to the trial court's denial of his motion to dismiss for plaintiff's failure to bring the case to trial within five years (Code Civ.Proc., § 583, subd. (b)). ¹

Contemporaneous with the defense motion to dismiss, plaintiff filed a motion for relief under Code of Civil Procedure section 473. ²

Following hearing on each of the motions, the court made its order in part as follows: 'The motion of defendant ORRIN COOK, M.D. entitled 'Motion to Dismiss Action--Failure to Bring to Trial Within Five Years (CCP Section 583(b))' and the motion of plaintiff DONALD MARTIN entitled 'Motion for Application for Relief from Dismissal under CCP Section 473' came on regularly for hearing on June 27, 1975, . . .

'. . . DO

'The Court finds that plaintiff through inadvertence and mistake failed to comply with the provisions of California (Code of) Civil Procedure Section 583(b) in failing to bring the within action to trial within five years of the filing of the complaint. It is, therefore, unnecessary to make any finding with respect to the disputed oral waiver of the provisions of Code of Civil Procedure Section 583(b) claimed by counsel for plaintiff and denied by counsel for defendant.

'IT IS HEREBY ORDERED that Plaintiff's Motion for Relief Pursuant to Code of Civil Procedure Section 473 is granted and Defendant's Motion to Dismiss for Failure to Bring the Action to Trial Within Five Years is denied.'

The following sequential factual summary details the circumstantial prelude to the court's order. The original complaint was filed on May 25, 1970, followed by a first amended complaint on August 10, 1970, which defendant answered on August 20, 1970. On October 19, 1971, defendant noticed the taking of plaintiff's deposition for November 3, 1971, and on the following day, filed a notice of motion for an order requiring plaintiff to permit inspection of the teflon implant utilized in the surgery performed on the plaintiff. On the date of hearing the motion to permit inspection, the matter was dropped from the calendar. A trial setting conference was then held November 16, 1971, and the matter set for jury trial on February 7, 1972. On December 22, 1971, defendant's counsel Philip R. Birney of the firm of Wilke, Fleury, Sapunor & Hoffelt, and representing Hassard, Bonnington, Rogers & Huber, prepared a stipulation executed by plaintiff's counsel Everett Rowe of Bostwick & Rowe, and counsel for defendant. That stipulation filed December 22, 1971, reads as follows:

'IT IS HEREBY STIPULATED by and between the above entitled parties, through their respective counsel, that the trial in the above action presently set for February 7, 1972, may be dropped from the calendar; that the matter may be restored to the trial calendar upon the written request of either of the parties.

'IT IS FURTHER STIPULATED by and between the parties hereto, through their respective counsel, that the provisions of California Code of Civil Procedure Section 583(a) may be and the same are waived in this action.'

The appeal record does not reflect any further activity on the case until October 10, 1974, when plaintiff filed a supplemental at-issue memorandum. On that date, defendant filed a demand for trial by jury. On April 15, 1975, the parties were advised by the court that a trial date of June 8, 1975, had been assigned. Thereafter, on June 2, 1975, a motion to dismiss was filed by defendant alleging that more than five years had elapsed since the commencement of the action (Code Civ.Proc., § 583, subd. (b)). Within a week, plaintiff filed a contemporaneous motion seeking relief from the threatened dismissal pursuant to Code of Civil Procedure section 473. ³

The motion for relief was supported by a declaration of plaintiff's counsel which referred to the previously filed stipulation and provided in part, 'That plaintiff, relying on said stipulation, presumed that the requirements of California Code of Civil Procedure, Section 583 as to a mandatory dismissal had been waived and proceeded Normally to prepare this case for trial.' (Emphasis added.) Counsel argued that the stipulation signed by respective counsel for the parties was meant to refer to subdivision (b) of section 583 rather than subdivision (a), and that relief from a stipulation improperly formed may be granted within the discretion of the court where mistake of fact or other special circumstances render its enforcement unjust. Plaintiff's counsel does not argue that fraud was perpetrated but rather than a mistake of fact occurred and that plaintiff prepared for trial presuming the five-year statute had been waived by the parties. Defendant's counsel, Philip Birney, in a counter-declaration, stated that on October 19, 1971, he served notice of taking deposition of plaintiff and that two days later, plaintiff's counsel requested a stipulation that the deposition be continued from November 3 to December 1. That on November 16, 1971, a trial setting conference was held and the matter set for trial on February 7, 1972. The trial setting order directed that discovery be completed 30 days prior to trial. The declaration further alleged that on December 1, 1971, plaintiff's counsel, Mr. Rowe, telephoned Birney's office and advised that he would be unable to attend plaintiff's deposition and requested it be cancelled to be reset. Thereafter, on December 3, Birney attempted to contact plaintiff's counsel to reschedule the deposition. During a conversation with Rowe's secretary, Birney's office was advised that the deposition could not be taken before January 3, 1972. Birney advised the secretary that since discovery closed January 7, plaintiff's deposition would have to be taken in December and that if it was impossible to have the deposition prior to January 3, the trial date would have to be vacated. On December 9, Birney again contacted Mr. Rowe's secretary to advise her the trial date would have to be vacated. The secretary apologized for the delay and advised Birney that Rowe had agreed the matter be dropped from the calendar. Birney stated in his declaration, 'There was no discussion that I recall at any time in which I discussed with or represented to counsel for the plaintiff that the provisions of Code of Civil Procedure Section 583(b) . . . would be waived.' Birney acknowledged preparation of the stipulation which was ultimately filed. The declaration concluded by stating, 'As a courtesy to counsel . . . in light of their Stipulation that the matter be taken off calendar without the necessity of the defendant filing a motion to continue and further as a part of the customary practice of this office when a plaintiff (so) stipulated . . . the additional clause with respect to waiving the provisions of . . . Section 583(a) was included within this Stipulation. There was never to my knowledge any intention to waive the provisions of . . . Section 583(b) . . ..'

Plaintiff's counsel Everett Rowe filed a counter declaration controverting the declaration of Birney in which he stated he requested that Birney's firm 'prepare a stipulation waiving the rights of his client to a dismissal under the 5 year statute . . . before declarant (Rowe) would agree to vacating the trial date of February 7, 1972.' Rowe alleged that Birney agreed and that Rowe, 'relying on the representations made by Mr. Birney that the defendant was waiving his rights under Section 583 relating to the 5 year period, signed the stipulation . . ..' The motions were scheduled for hearing on June 27, 1975, and on the day prior to hearing, defense counsel filed a supplemental memorandum of points and authorities opposing plaintiff's motion for relief under section 473. The court took the matter under submission and allowed each party time to file additional affidavits in support of their respective positions. Birney, on behalf of the defendant, filed an additional declaration which attacked the veracity of the statements made by Rowe. It provided in part, 'I wish to re-emphasize that each and every conversation that I had with the office for counsel for the plaintiff was with a person who represented that she was Mr. Rowe's secretary. Never did I discuss dropping this matter from the trial calendar directly with Mr. Rowe. At no time did I discuss with Mr. Rowe or anyone from his office anything relating to the waiver of the 5 year provision of Code of Civil Procedure Section 583(b). My original declaration indicated that I did not recall any such conversation which is true. The alleged conversation with respect to waiving the 5 year statute is the type that I would recall if it had occurred. I am sure that it did not occur because I never had authority to waive the 5 year statute and the waiving of the 5 year statute is an act which is seldom done by my firm.

'I have read the Declaration in Opposition to the Motion to Dismiss and in support of Application For Relief From Dismissal Under C.C.P. Section 473, executed by Mr. Rowe as counsel for the plaintiff on or about June 18, 1975. If Mr. Rowe is inferring that I at any time represented to him that I would waive on behalf of my office or on behalf of my client the 5 year statute provision of Code of Civil Procedure Section 583(b), such implication is false. I never represented to Mr. Rowe or to...