Messih v. Levine, B046114
| Decision Date | 12 March 1991 |
| Docket Number | No. B046114,B046114 |
| Citation | 228 Cal.App.3d 454,278 Cal.Rptr. 825 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Shukry MESSIH, Plaintiff and Appellant, v. Henry LEVINE and Lee Drug Co., Defendants and Respondents. |
David J. Duchrow, Santa Monica, for plaintiff and appellant.
Stockdale, Peckham & Werner, and Paul F. Sowa, Los Angeles, for defendants and respondents.
Almost seven years after it was filed, the complaint was dismissed pursuant to the mandatory five-year dismissal statute (CODE CIV.PROC., )1 § 583.310 2. Appellant claims the limitation period was automatically tolled by his postarbitration trial de novo request, by the filing of his appeals, and because it was "impossible, impracticable, or futile" (§ 583.340) to sooner bring the action to trial. We reject appellant's claims and affirm the judgment.
On November 22, 1982, appellant, a pharmacist, filed a four-count complaint alleging wrongful termination. An answer was filed February 15, 1983. Delays were immediate and varied. On September 28, 1983, appellant's attorney, Eli M. Kantor, moved to withdraw as attorney of record, declaring under penalty of perjury that appellant had "repeatedly refused to answer routine interrogatories, such as his social security number and drivers license." Mr. Kantor further declared that appellant, despite repeated requests, refused to relinquish an original prescription belonging to respondent Lee Drug Co. The withdrawal motion was granted November 7, 1983. On November 15, 1983, appellant moved for reconsideration and on December 22, 1983, the court denied his motion. Appellant, on January 30, 1984, filed a notice of appeal from the November 7 and December 22 orders. We later discuss the disposition and significance of this appeal. (Other interim procedural events are considered as relevant to appellant's contentions.) On September 8, 1987, the matter was ordered into arbitration. An award was made March 15, 1988, and on April 14, 1988, appellant requested a trial de novo. A trial was set for November 8, 1989, but on August 30, 1989, the trial court granted respondents' motion to dismiss. (§ 583.340).
Standard of review
"A trial court's ruling on a motion to dismiss ... will be disturbed only upon a showing of a manifest abuse of discretion." (Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 164, 263 Cal.Rptr. 476; accord Wheeler v. City of Santa Monica (1990) 219 Cal.App.3d 1554, 1560, 269 Cal.Rptr. 175.) "The burden is on the plaintiff to establish the existence of impossibility or impracticability." (6 Witkin, Cal.Procedure (3d ed. 1985) § 141, p. 446.)
Postarbitration request for a trial de novo
Appellant contends that his April 14, 1988, request for a trial de novo automatically tolled the five-year limitation period until November 8, 1989, the trial date set by the trial court. Appellant relies upon Moran v. Superior Court (1983) 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216 and certain later cases construing Moran.
Moran found that the trial court had correctly denied a five-year statutory dismissal motion for two independent reasons. First, because of an implied "impossibility, impracticability, or futility" exception. Second, because (Id. at pp. 241-242, 197 Cal.Rptr. 546, 673 P.2d 216.)
As to Moran's second alternative holding there had been a split in case authority.
Division Three of the Second District initially construed Moran as eliminating plaintiff diligence from trial de novo request to trial date. (Hughes v. Southern Cal. Rapid Transit Dist. (1985) 173 Cal.App.3d 512, 219 Cal.Rptr. 82.) Seven months later that court recanted, holding that a plaintiff had an ongoing duty of due diligence and "must bring to the trial court's attention the time frame of the case." (Hill v. Bingham (1986) 181 Cal.App.3d 1, 11-12, 225 Cal.Rptr. 905.)
Similarly, Division Seven of the Second District initially construed Moran as requiring an automatic tolling from trial de novo request until the trial date irrespective of plaintiff diligence or non-diligence (Ward v. Levin (1984) 161 Cal.App.3d 1026, 208 Cal.Rptr. 312; Paul E. Iacono Structural Engineer, Inc. v. Rizzo (1984) 162 Cal.App.3d 803, 208 Cal.Rptr. 787; Barna v. Passage 350 Canon (1986) 186 Cal.App.3d 440, 230 Cal.Rptr. 764.) But just as Division Three departed from its initial interpretation of Moran, we subsequently held that to obtain tolling benefits a plaintiff must do more than just request a trial de novo. He must notify the trial court of the five-year deadline and continue to exercise Our decision in Baccus ended the split in authority concerning Moran's second alternative holding. All courts which have addressed the issue now agree that a plaintiff, notwithstanding his request for a trial de novo, has an ongoing duty of reasonable diligence. (Second District, Division 1: State of California v. Superior Court (1979) 98 Cal.App.3d 643, 159 Cal.Rptr. 650; Second District, Division 2: Sizemore v. Tri-City Lincoln Mercury, Inc. (1987) 190 Cal.App.3d 84, 235 Cal.Rptr. 243; Second District, Division 3: Hill v. Bingham, supra, 181 Cal.App.3d 1, 225 Cal.Rptr. 905; Berry v. Weitzman (1988) 203 Cal.App.3d 351, 249 Cal.Rptr. 816; Second District, Division 4: Santa Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 250 Cal.Rptr. 384; Second District, Division 5: Taylor v. Hayes (1987) 199 Cal.App.3d 1407, 245 Cal.Rptr. 613; Second District, Division 7: Baccus v. Superior Court, supra, 207 Cal.App.3d 1526, 255 Cal.Rptr. 781; First District, Division 3: Cannon v. City of Novato (1985) 167 Cal.App.3d 216, 213 Cal.Rptr. 132; Fourth District, Division 3: Marchuk v. Ralphs Grocery Co. (1990) 226 Cal.App.3d 1273, 276 Cal.Rptr. 627; Sixth District: SERRANO V. FMC CORP. (1990) 221 CAL.APP.3D 1027, 271 CAL.RPTR. 41;3 DRESSER V. BINDI (1990) 221 CAL.APP.3D 1493, 271 CAL.RPTR. 137.)4
reasonable diligence. (Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1535-1536, 255 Cal.Rptr. 781.)
We find that postarbitration tolling requires reasonable diligence on a plaintiff's part. (Baccus v. Superior Court, supra, 207 Cal.App.3d 1526, 1535, 255 Cal.Rptr. 781.) Appellant failed to exercise such diligence. During the six month period following his request for a trial de novo (§ 1141.17 )5 appellant did not notify the court of the five-year deadline nor take any steps to bring the action to trial. E.g., on September 12, 1988, about a month before the five-year deadline, the court notified appellant of a November 2, 1988, status conference. Appellant not only failed to inform the court that this date was beyond the five-year deadline but appellant failed to appear at the conference.
We conclude that the five-year statute was not tolled by appellant's postarbitration trial de novo request.
Appellant's January 30, 1984, appeal
Appellant contends that by filing his January 30, 1984, notice of appeal the jurisdiction of the trial court was stayed and prosecution of his action was impossible, impracticable, and futile. Appellant is mistaken.
The appeal was from the November 7, 1983, trial court order allowing Mr. Kantor to withdraw as appellant's lawyer and from the December 22, 1983, order denying appellant's reconsideration motion. Section 916 provides in pertinent part that "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby But as Division Five of this District held in dismissing appellant's appeal, the orders were not appealable. (Messih v. Lee Drug, Inc. (1985) 174 Cal.App.3d 312, 220 Cal.Rptr. 43.) Messih also noted that the appeal was untimely and that "there is a total lack of substantive merit in plaintiff's contentions on appeal." (Id. at p. 315, fn. 4, 220 Cal.Rptr. 43.)
but the trial court may proceed upon any other matter embraced in the action...." Accordingly, even if the orders were appealable, the trial court retained general jurisdiction over the action and its prosecution was not impossible, impracticable, or futile.
An appeal from nonappealable orders does not toll the limitations statute. (Stuart v. Hollywood Turf Club (1956) 146 Cal.App.2d 261, 264, 303 P.2d 897.) Christin v. Superior Court (1937) 9 Cal.2d 526, 71 P.2d 205, relied upon by appellant, is legally and factually distinguishable.
Appellant's contention is without merit.
In a related argument, appellant asserts that the action was stayed by the trial court's denial of respondents' discovery motion. (§ 583.340, subd. (b) 6.) Respondents' motion to compel production and inspection of documents was denied on April 24, 1984, the court stating, "Denied without prejudice, to renew after responding party's appeal is heard." We disagree with appellant.
By its order the trial court did not explicitly or impliedly stay proceedings. E.g., a short time later, on September 8, 1987, it conducted a trial setting conference and ordered the case into arbitration. Moreover, the order only affected discovery by respondent, not appellant, and did not foreclose continued voluntary discovery by both parties. Additionally, if the order temporarily slowed prosecution of the trial, appellant cannot complain because he caused that slowing by his groundless appeal. (See Kaye v. Mount La Jolla Homeowners Assn. (1988) 204 Cal.App.3d 1476, 1485-1486, fn. 4, 252 Cal.Rptr. 67.)
Appellant's January 25, 1988, appeal
This appeal by appellant was from an...
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...Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 1034, 250 Cal.Rptr. 384; see also Messih v. Levine (1991) 228 Cal.App.3d 454, 458, 278 Cal.Rptr. 825; Marchuk v. Ralphs Grocery Co. (1990) 226 Cal.App.3d 1273, 1277, 276 Cal.Rptr. 627; Dresser v. Bindi (1990) 221 C......