Minkin v. Levander

• Decision Date: 30 September 1986
• Citation: 230 Cal.Rptr. 592,186 Cal.App.3d 64
• Court: California Court of Appeals Court of Appeals
• Parties: Ron MINKIN, Plaintiff and Appellant, v. Charles LEVANDER, Bateman Eichler, Hill Richards, Inc., Bill Garland, Walter Hendricks and Investors Financial Services, Inc., Defendants and Respondents. B012043.

Page 592

230 Cal.Rptr. 592

186 Cal.App.3d 64

Ron MINKIN, Plaintiff and Appellant, v. Charles LEVANDER, Bateman Eichler, Hill Richards, Inc., Bill Garland, Walter Hendricks and Investors Financial Services, Inc., Defendants and Respondents.

B012043.

Court of Appeal, Second District, Division 2, California.

Sept. 30, 1986.

Vincent J. Oliver, Los Angeles, for plaintiff and appellant.

Jeff A. Lesser, Encino, for defendant and respondent Charles Levander.

Roger J. Nichols, Los Angeles, for defendant and respondent Bateman Eichler, Hill Richards, Inc.

Arthur I. Weiss, Los Angeles, for defendants and respondents Walter Hendricks and Investors Financial Services, Inc.

COMPTON, Associate Justice.

Plaintiff Ron Minkin appeals from a judgment (order) of dismissal entered pursuant to Code of Civil Procedure section 583, subdivision (b) ¹ for failure to bring the matter to trial within five years after the filing of the complaint. We affirm.

The facts leading to the dismissal are not in dispute and may be briefly summarized as follows. On April 13, 1979, plaintiff filed his initial complaint seeking damages against defendants Charles Levander, Bill Garland, Bateman Eichler, Hill Richards, Inc. (Bateman), and Investors Financial Services, Inc. ² for securities fraud. Between the time the action was commenced and April 1982, plaintiff, a practicing attorney, was represented by various members of his own firm, including his partner, Leonard C. Cohn. Following discovery, the complaint was nominally amended in September 1981 to include an additional defendant. ³

Some months after the filing of an at-issue memorandum in February 1982, plaintiff substituted himself as attorney of record. Following his failure to appear at a court ordered arbitration conference in May 1982, the at-issue memorandum was stricken and the case was removed from the civil active list.

In June 1983, plaintiff abandoned his pro per status and substituted Kenneth A. Costanzo as trial counsel. After this substitution, the action apparently slumbered until March 28, 1984, when, with the five-year statute set to expire on April 13, 1984, plaintiff sought and obtained an ex parte order shortening time for a motion to advance the case and specially set it for trial. The application and motion, both prepared by an associate in Minkin's firm, were based upon the alleged incompetence of Costanzo in failing to move the matter forward in a timely manner. The application was granted and a hearing on the motion was set for April 3, 1984.

Despite plaintiff's contention of incompetence on the part of trial counsel, Costanzo appeared at the hearing and argued the merits of the motion. Although the court declined to set the case for trial before April 13, 1984, or dismiss the suit on its own motion (see former Code Civ.Proc., § 583, subd. (a)), ⁴ it acceded to plaintiff's request and scheduled trial to commence June 5, 1984. Defendants subsequently moved to dismiss the action pursuant to Code of Civil Procedure section 583, subdivision (b), and a hearing thereon was held June 1, 1984. Costanzo again appeared for plaintiff and, for the first time, argued that his efforts to bring the matter to trial within the five-year period were made impossible and futile because of the bankruptcy of Investors Financial Services, Inc.--the corporation owned by Joseph Sebags Company--and that any litigation relating to this particular defendant had been stayed by order of the federal bankruptcy court. Based upon these representations, the trial court ruled that the effect of the bankruptcy and the issue of Investors' status as an indispensable party were factual questions that required resolution before the motion to dismiss could be properly and fully considered. ⁵

At plaintiff's behest, and over defendants' objections, trial was continued to October 19, 1984. On that date, with defendants announcing they were ready to proceed, trial again was postponed on plaintiff's motion to February 27, 1985. In the interim, defendant Levander propounded a set of interrogatories to Minkin on the issue of Investors' status as an indispensable party to the action, the answers to which failed to substantiate any factual basis for plaintiff's claim.

In response to defendants' renewed motion to dismiss for lack of prosecution, filed in February 1985, plaintiff abandoned his contention that Investors was an indispensable party, and once again argued that the case had been delayed because of Costanzo's incompetence and refusal to communicate with Minkin. ⁶ Plaintiff further maintained that the trial court had abused its discretion when it denied the motion to specially set in April 1984. In his opposition papers, Minkin himself declared that since April 3, 1984, he had been "ready, willing and able to proceed to trial, and remains so to this day." Following a hearing on the motion, the case was dismissed and this appeal follows.

In urging us to reverse, plaintiff essentially argues that he demonstrated due diligence in attempting to bring the case to trial, but was prevented from doing so because of his attorney's incompetence and the trial court's refusal to specially set the matter before the end of the statutory period.

Although the language of Code of Civil Procedure section 583, subdivision (b) is seemingly clear, unambiguous, and mandatory, it has been judicially interpreted to provide certain exceptions thereto.

The five-year mandatory dismissal requirement has been held not to apply where it was impossible, impracticable or futile for a plaintiff to bring the matter to trial within the statutory period. (Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829; Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 329 P.2d 489; see also Code Civ.Proc., § 583.340, subd. (c).)

"What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case." (Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216; see also Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 105-107, 191 Cal.Rptr. 549.)

The courts of this state have long reiterated that a plaintiff must be able to demonstrate diligence in pursuit of his duty to expedite the resolution of his case at all stages of the proceedings, to invoke the implied exceptions. (Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491, 496, 197 Cal.Rptr. 771.) At the same time, a "defendant need make no move until the law requires him to do so 'in response to the movements of plaintiff at the various stages of the litigation.' " (Bonelli v. Chandler (1958) 165 Cal.App.2d 267, 275, 331 P.2d 705; Black Bros. Co. v. Superior Court (1968) 265 Cal.App.2d 501, 71 Cal.Rptr. 344.)

Central to a plaintiff's general duty is the specific duty to keep track of the calendar and the pertinent dates which are crucial to maintenance of his lawsuit, and to see that the action is brought to trial within the five-year period. (Singelyn v. Superior Court (1976) 62 Cal.App.3d 972 975, 133 Cal.Rptr. 486; Griffis v. S.S. Kresge Co., supra, 150 Cal.App.3d at p. 496, 197 Cal.Rptr. 771.)

Applying these principles to the case at bench, we think it clear that plaintiff did not act with all reasonable diligence in moving this matter to trial. As previously noted, between the time the suit was commenced in April 1979 and April 1982, plaintiff, himself a practicing attorney, was represented by members of his own law firm. During this period, the initial complaint was nominally amended and an at-issue memorandum was lodged with the court. For reasons unapparent from the record, plaintiff then elected to proceed in pro per and one month later, when he failed to appear at a mandatory arbitration conference, the case was removed from the civil active list. At no time prior to April 1984 did plaintiff take any action to file and serve a new at-issue memorandum and have the suit restored to the superior court's list of pending cases. Neither at the trial level nor on appeal has plaintiff attempted to explain this omission.

With a mere 16 days remaining before the expiration of the five-year period, plaintiff made his ex-parte application for an order shortening time for service and hearing of a motion to specially set the case for trial. Despite the fact that the application failed to cite either the date of the filing of the lawsuit or the end of the statutory period, among other deficiencies, the order was granted. Although plaintiff attributed the delay in prosecution of the case to his attorney's incompetence, that same attorney was inexplicably permitted to argue the merits of the motion. The court, noting that some discovery had occurred during the preceding six months, declined to dismiss the suit on its own motion. Emphasizing, however that "hundreds and thousands" of properly prepared cases were awaiting trial, the court concluded that it would be "unfair" to give the matter preference and set a trial date before April 13, 1984.

Under the circumstances, we cannot hold that the court's ruling constituted an abuse of discretion. Although a plaintiff may reasonably expect to receive an ex parte order shortening time in which to bring a motion to specially set a case for trial (see Griffis v. S.S. Kresge Co., supra, 150 Cal.App.3d 491, 498, 197 Cal.Rptr. 771), a trial court must nonetheless comply with the dictates of Code of Civil Procedure section 594, subdivision (a). That statute provides that an issue of fact may not be tried in the absence of an adverse party, unless it is shown to the satisfaction of the court that the adverse party had 15 days' notice of the...