McDonough Power Equipment Co. v. Superior Court

• Decision Date: 22 December 1972
• Court: California Supreme Court
• Parties: , 503 P.2d 1338 McDONOUGH POWER EQUIPMENT CO., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Mary GRASSO, Real Party in Interest. L.A. 29992. In Bank

Page 330

105 Cal.Rptr. 330

8 Cal.3d 527, 503 P.2d 1338

McDONOUGH POWER EQUIPMENT CO., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Mary GRASSO, Real Party in Interest.

L.A. 29992.

Supreme Court of California,

In Bank.

Dec. 22, 1972.

Dryden, Harrington & Swartz and Peter Abrahams, Los Angeles, for petitioner.

No appearance for respondent.

Olney, Levy, Kaplan, Ormes & Tenner, Jack Tenner, Richard Devirian and Hugh R. Manes, Los Angeles, for real party in interest.

Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Joseph W. Cotchett, San Mateo, Herbert Hafif, Claremont, and Leonard Sacks, Pico Rivera, as amici curiae on behalf of real party in interest.

SULLIVAN, Justice.

Petitioner McDonough Power Equipment Co. seeks a writ of mandate to compel respondent superior court to dismiss a pending action for lack of prosecution pursuant to Code of Civil Procedure ¹ section 583, subdivision (b), because it was not brought to trial within three years after the filing of the remittitur on a previous appeal. We have concluded that the writ should issue.

Following is a chronology of the pertinent procedural events: On June 4, 1965, real party in interest Mary Grasso (hereafter plaintiff) commenced against petitioner McDonough Power Equipment Co. (hereafter defendant) the underlying action for damages for personal injuries. On November 10, 1965, the trial court sustained without leave to amend defendant's demurrer to the complaint on the grounds of the statute of limitations and on December 2, 1965, entered a judgment of dismissal. Plaintiff appealed and, on August 2, 1968, the Court of Appeal reversed the judgment with directions to overrule the demurrer. (Grasso v. McDonough Power Equipment, Inc. (1968) 264 Cal.App.2d 597, 70 Cal.Rptr. 458.)

On October 7, 1968, the remittitur was filed in respondent superior court. On January 17, 1969, defendant answered the complaint. The cause came on for trial in July 1971, but was continued to November 2, 1971, at which time defendant moved for dismissal under section 583, subdivision (b), on the ground that the action had not been brought to trial within three years from the filing of the remittitur. On November 4, 1971, respondent court denied defendant's motion ² and reset the case for trial. Defendant thereupon filed the instant petition for a writ of mandate.

Preliminarily we note that since no direct appeal lies from the denial of a motion to dismiss, an appeal from the judgment after a trial is an inadequate remedy when the motion is meritorious. Either a writ of mandate to compel dismissal or a writ of prohibition to restrain the trial is a proper remedy to enforce the trial court's duty to dismiss pursuant to section 583, subdivision (b). (J.C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 669, 343 P.2d 919; Tomales Bay Etc. Corp. v. Superior Court (1950) 35 Cal.2d 389, 392, 217 P.2d 968; 4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 93, p. 2755.)

Subdivision (b) of section 583 provides in relevant part: 'Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, 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. . . . When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial . . . the action Must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.' (Italics added.)

The three-year provision of subdivision (b) is clear and unambiguous and makes dismissal of the action mandatory unless it is brought to trial within three years of the filing of the remittitur. (Good v. State of California (1969) 273 Cal.App.2d 587, 591, 78 Cal.Rptr. 316; Mass v. Superior Court (1961) 197 Cal.App.2d 430, 433, 17 Cal.Rptr. 549; McDonnell v. American Trust Co. (1960) 178 Cal.App.2d 325, 328, 2 Cal.Rptr. 826; Legg v. United Benefit Life Ins. Co. (1955) 136 Cal.App.2d 894, 896, 289 P.2d 553; Cameron v. Cameron (1952) 110 Cal.App.2d 258, 260--261, 242 P.2d 408; Neustadt v. Skernswell (1950) 99 Cal.App.2d 293, 295, 221 P.2d 694; Booth v. County of Los Angeles (1945) 69 Cal.App.2d 104, 108, 158 P.2d 104; Accord: Cotton v. Hallinan (1962) 201 Cal.App.2d 415, 416, 20 Cal.Rptr. 40; McDonald Candy Co. v. Lashus (1962) 200 Cal.App.2d 63, 68, 19 Cal.Rptr. 137; Inderbitzen v. Lane Hospital (1936) 17 Cal.App.2d 103, 105, 61 P.2d 514.) It has been long and well settled that the above provision of the statute applies, and that dismissal is mandatory, in cases in which a judgment for the defendant entered upon an order sustaining a demurrer without leave to amend has been reversed. (Good v. State of California, Supra, 273 Cal.App.2d 587, 589, 591, 78 Cal.Rptr. 316; Hsu v. City Etc. of San Francisco (1966) 240 Cal.App.2d 317, 322, 49 Cal.Rptr. 531; Lane v. Davis (1964) 227 Cal.App.2d 60, 38 Cal.Rptr. 425; Robertson v. Superior Court (1960) 180 Cal.App.2d 372, 375, 376, 4 Cal.Rptr. 297; McDonnell v. American Trust Co., Supra, 178 Cal.App.2d 325, 327, 2 Cal.Rptr. 826; Shutes v. Cheney (1954) 123 Cal.App.2d 256, 263, 266 P.2d 902; Neustadt v. Skernswell, Supra, 99 Cal.App.2d 293, 294--295, 221 P.2d 694; Smith v. City of Los Angeles (1948) 84 Cal.App.2d 297, 302, 305, 190 P.2d 943.)

Plaintiff contends in the face of the foregoing authorities that the three-year provision of section 583, subdivision (b), applies only where a judgment is reversed after a previous trial on the merits. She argues that the above section expressly provides for a reversal 'with cause remanded for a New trial' (italics added) and that section 656 defines a new trial as 'a reexamination of an issue of Fact in the same court After a trial and decision by a jury, court, or referee.' (Italics added.) But section 656, which is found within title 8 of part 2 of the code ('Of the Trial and Judgment in Civil Actions'), does not provide an exclusive definition of 'trial' or 'new trial,' nor does it establish an identity of meaning between the term 'trial' as used in section 656 and as used in section 583. On the contrary, in defining 'trial' we have said 'that it is the determination of an issue of law of fact' (Berri v. Superior Court (1955) 43 Cal.2d 856, 859, 279 P.2d 8, 10) or 'the examination . . . of the facts or law put in issue in a cause. . . .' (Tregambo v. Comanche M. and M. Co. (1881) 57 Cal. 501, 505; see also Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 466 and cases there cited; Carney v. Simmonds (1957) 49 Cal.2d 84, 90, 315 P.2d 305; City of Pasadena v. Superior Court (1931) 212 Cal. 309, 313, 298 P. 968; Good v. State of California, Supra, 273 Cal.App.2d 587, 590--591, 78 Cal.Rptr. 316; Smith v. City of Los Angeles, Supra, 84 Cal.App.2d 297, 301--302, 190 P.2d 943 and cases there cited.) Witkin recognizes that '(i)n its broad meaning the term includes a trial on the law. But whether a hearing on demurrer constitutes a 'trial' usually depends upon the language and purpose of the particular statute.' (4 Witkin, Supra, Trial, § 2, p. 2862.)

Thus in applying section 583, a hearing on a demurrer constitutes a trial when the ensuing ruling is followed by a judgment of dismissal. As we said in Berri v. Superior Court, Supra, 43 Cal.2d 856, 858--860, 279 P.2d 810: 'With regard to the running of the five-year period, it has been held that the determination or a hearing on a demurrer to the complaint is not a trial within the meaning of section 583 of the Code of Civil Procedure and hence the action is subject to dismissal after the five-year period has expired Unless the ruling on demurrer is a final determination of the case. (Citations.) When the demurrer has been sustained and judgment of dismissal has been entered there has been a trial and the action is not subject to dismissal under section 583. (Citations.) . . . The essential thing is that the action be brought to a stage where final disposition is to be made of it.' (Italics added.) Plaintiff's contention merely attempts to circumvent the above authorities. We find it totally without merit.

Plaintiff advances the alternate claim that the three-year provision of section 583 does not apply in any event because there has been no remand for a new trial. The point seems to be that in reversing the judgment the Court of Appeal merely directed the trial court 'to overrule the demurrer insofar as it is based upon the statute of limitations.' (Grasso v. McDonough Power Equipment, Inc., Supra, 264 Cal.App.2d 597, 602, 70 Cal.Rptr. 458, 461.) The same contention advanced on similar facts was rejected in Robertson v. Superior Court, Supra, 180 Cal.App.2d 372, 375, 4 Cal.Rptr. 297, 299: 'In effect, in the instant case, the reversal of the former judgment directed, or at least authorized, a new trial on the remaining issues. An unqualified reversal remands a cause for a new trial.' (See also Good v. State of California, Supra, 273 Cal.App.2d 587, 591, 78 Cal.Rptr. 316 and cases there cited; Smith v. City of Los Angeles, Supra, 84 Cal.App.2d 297, 299, 302, 190 P.2d 943.)

We conclude that where, as in the instant case, a judgment of dismissal, entered upon an order sustaining a demurrer without leave to amend, has been reversed, the action must be brought to trial within three years from the filing of the remittitur in the trial court. In such case the determination of the issues of law raised by the demurrer constitutes a trial within the meaning of section 583. Upon...