McKenzie v. City of Thousand Oaks

• Decision Date: 28 December 1973
• Citation: 36 Cal.App.3d 426,111 Cal.Rptr. 584
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth G. McKENZIE et al., Plaintiffs and Respondents, v. CITY OF THOUSAND OAKS, Defendant and Appellant. Civ. 41669.

Page 584

111 Cal.Rptr. 584

36 Cal.App.3d 426

Kenneth G. McKENZIE et al., Plaintiffs and Respondents, v. CITY OF THOUSAND OAKS, Defendant and Appellant.

Civ. 41669.

Court of Appeal, Second District, Division 1, California.

Dec. 28, 1973.

Hearing Denied Feb. 27, 1974.

Vincent Fish, David Clark, Chase, Rotchford, Drukker & Bogust, Los Angeles, for defendant and appellant.

William B. Ritner, Thousand Oaks, and Thomas G. Baggot, Los Angeles, for plaintiffs and respondents.

LILLIE, Associate Justice.

On October 7, 1966, plaintiffs filed a complaint for damages to real and personal property caused by flooding by reason of inadequate drainage, against numerous named defendants including certain development companies, and the County of Ventura, Ventura County Flood Control District and the City of Thousand Oaks. Defendant City was served on February 21, 1967; no answer was filed by or on behalf of defendant City and it made no general appearance. Two and one-half years after service and on August 25, 1969, default was entered against it at the request of plaintiffs, but the default was not then reduced to judgment. On March 9, 1967, the County of Ventura and Ventura County Flood Control District were served and on April 10, 1967, filed a joint answer. After lengthy negotiations and on May 28, 1971, plaintiffs entered into a settlement with County of Ventura and Ventura County Flood Control District admittedly 'predicated upon the amount anticipated (by plaintiffs) from (defendant) City' on the default judgment to be entered against it, and on July 1, 1971, at plaintiffs' request the cause was dismissed with prejudice as to the County of Ventura and Ventura County Flood Control District.

According to declaration of counsel for defendant City, he first became aware of the action pending against it around June 30, 1971. Thus, nearly four and one-half years having elapsed since service of summons on defendant City and plaintiffs not having reduced the entry of default to judgment, on August 5, 1971, it moved to dismiss pursuant to section 581a, subdivision (c), Code of Civil Procedure; on September 3, 1971, the motion was denied. On September 21, 1971, defendant moved to set aside default; this motion, too, was denied. After several hearings on proof of default, and on August 8, 1972, nearly five and one-half years after service of summons on defendant City, default judgment in the sum of $27,746 was entered against it in favor of plaintiffs. Defendant City appeals from the judgment.

Section 581a, subdivision (c), Code of Civil Procedure, effective February 27, 1970, provides: 'All actions, heretofore or hereafter commenced, shall be dismissed by the court in which the same may be pending, on its own motion, or on the motion of any party interested therein, if no answer has been filed after either service has been made or the defendant has made a general appearance, if plaintiff fails, or has failed, to have judgment entered within three years after service has been made or such appearance by the defendant, except where the parties have filed a stipulation in writing that the time may be extended.' Thus, in the circumstances here and under the language of the foregoing statute, the period in which entry of a default must be reduced to judgment expired on February 21 1970. ¹ The factual situation would seem to place this case squarely within the ambit of section 581a, subdivision (c). At the time of the motion to dismiss (August 5, 1971) nearly four and one-half years had elapsed since service of summons on defendant City (February 21, 1967), no answer had been filed by or on behalf of defendant City and no general appearance made by it, plaintiffs had not entered judgment against defendant City and no written stipulation extending the time recited in section 581a, subdivision (c), was filed by the parties. The default judgment was not entered until August 8, 1972, nearly five and one-half years after service of summons. Citing Lynch v. Bencini, 17 Cal.2d 521, 530--533, 110 P.2d 662, appellant argues that the superior court had a mandatory duty under the statute to dismiss the action. Respondent answer that (1) the section does not apply in a case in which an answer has been filed by Any defendant against whom the relief sought is the same as that sought against the defaulted defendant, citing AMF Pinspotters, Inc. v. Peek, 6 Cal.App.3d 443, 86 Cal.Rptr. 46, and (2) dismissal is a matter for the trial court's discretion.

Section 581a, Code of Civil Procedure, is part of a statutory scheme, the purpose of which is to compel reasonable diligence in the prosecution of an action after it has been commenced (Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740, 329 P.2d 489; Gonsalves v. Bank of America, 16 Cal.2d 169, 172, 105 P.2d 118; Flamer v. Superior Court, 266 Cal.App.2d 907, 911, 72 Cal.Rptr. 561; People v. Kings County Dev. Co., 48 Cal.App. 72, 76, 191 P. 1004) and 'expedite litigation and require it to be brought to conclusion within reasonable time limits. (Schultz v. Schultz, 70 Cal.App.2d 293, 297 (161 P.2d 36); Rio del Mar etc. Club, Inc. v. Superior Court, 84 Cal.App.2d 214, 225 (190 P.2d 295).)' (Moore v. Superior Court, 8 Cal.App.3d 804, 810, 87 Cal.Rptr. 620, 624.) Prior to 1969 section 581a provided that all actions 'must be dismissed' ² if summons has been served and no answer has been filed, if plaintiff has failed to have judgment entered within three years after service; section 583, Code of Civil Procedure, provided that after the commencement of an action the same 'shall be dismissed by the court' unless such action is brought to trial within five years after plaintiff has filed his action.

Until Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 329 P.2d 489, decided in 1958, section 581a was held to be mandatory and jurisdictional in the sense that the court had no power to excuse the delay in the prosecution of an action. (Gonsalves v. Bank of America, 16 Cal.2d 169, 105 P.2d 118.) The court in Wyoming Pacific Oil Co., however, held that 'notwithstanding the mandatory language of section 581a, the trial court is vested with discretion in applying the exceptions comparable to the discretion with which it is vested in applying the exceptions to section 583.' (50 Cal.2d pp. 740--741, 329 P.2d 489, 492.) It previously noted on page 740, 329 P.2d page 492; that '(d)espite the apparently mandatory language of (section 583, Code of Civil Procedure), this court has found many 'implied exceptions' where it was 'impracticable and futile' to bring the action to trial within the designated five-year period. (Citation.)' Thus, under Wyoming Pacific Oil Co. the same exceptions are now held to apply to section 581a (Flamer v. Superior Court, 266 Cal.App.2d 907, 913, 72 Cal.Rptr. 561), and noncompliance with section 581a may be excused where it is established that it was 'impracticable, impossible or futile' to comply, or where the defendant is estopped by his own conduct. (Tresway Aero, Inc. v. Superior Court, 5 Cal.3d 431, 441--442, 96 Cal.Rptr. 571, 487 P.2d 1211; Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740, 329 P.2d 489; Watson v. Superior Court, 24 Cal.App.3d 53, 58, 100 Cal.Rptr. 684, 687.)

The plaintiff, however, is required to carry the burden of excusing his noncompliance. '(U)nless the record affirmatively discloses the existence of a sufficient excuse or the basis for an estoppel, the burden rests upon the plaintiff to prove it. This rule is stated as follows in Hill v. Superior Court, 251 Cal.App.2d 746, 755 (59 Cal.Rptr. 768): 'Even under the rule announced in Wyoming Pacific the burden is on the plaintiff, in order to escape the force of the mandatory provisions of section 581a, to make an adequate showing that it was impossible, impracticable or futile to comply with the provisions of that section as to the service and return of the summons within the three-year period. In such a case the plaintiff must show 'not only objective impossibility in the true sense, but also impracticability due to excessive and unreasonable difficulty or expense.' (Christin v. Superior Court, 9 Cal.2d 526, 533 (71 P.2d 205, 112 A.L.R. 1153).) The limited discretion thus conferred on the trial court is not enlarged by the admonition of the court in Wyoming Pacific that 'the discretion permitted must be 'exercised in accordance with the spirit of the law and with a view of subserving, rather than defeating, the ends of substantial justice. " To hold otherwise would require us to engage in the long forbidden practice of judicial legislation. (Tynan v. Walker, 35 Cal. 634 (95 Am.Dec. 152).)" (Watson v. Superior Court, 24 Cal.App.3d 53, 58, 100 Cal.Rptr. 684.) The California Supreme Court in Brunzell Constr. Co. v. Wagner, 2 Cal.3d 545, 86 Cal.Rptr. 297, 468 P.2d 553, discussing the mandatory nature of section 583, said at page 551, 86 Cal.Rptr. at 300, 468 P.2d at 556, 'we have recognized an exception to the section 'where, for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile.' (Christin v. Superior Court, Supra, 9 Cal.2d 526, 533, 71 P.2d 205; General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 93--97 (52 Cal.Rptr. 460, 416 P.2d 492); Rose v. Knapp (1951) 38 Cal.2d 114, 117--118 (237 P.2d 981); Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 64--68 (168 P.2d 665).)'

Plaintiffs' showing consists of the mere assertion in their points and authorities in opposition to motion to dismiss that 'settlement was not made against defendants Ventura County and Ventura County Flood Control District until after three years from service of summons on defendant City of Thousand Oaks (and) as a matter of fairness, it would have been highly improper to have judgment entered against defendant City of Thousand Oaks prior to...