Moran v. Superior Court

• Decision Date: 22 December 1983
• Docket Number: No. L,L
• Citation: 673 P.2d 216,35 Cal.3d 229,197 Cal.Rptr. 546
• Parties: , 673 P.2d 216 James MORAN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Barbara RICCARDO, Real Party In Interest. LUTHERAN HOSPITAL SOCIETY OF SOUTHERN CALIFORNIA, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Barbara RICCARDO, Real Party in Interest. Karl STORZ, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Barbara RICCARDO, Real Party in Interest. A. 31680.
• Court: California Supreme Court

Page 546

197 Cal.Rptr. 546

35 Cal.3d 229, 673 P.2d 216

James MORAN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Barbara RICCARDO, Real Party In Interest.

LUTHERAN HOSPITAL SOCIETY OF SOUTHERN CALIFORNIA, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Barbara RICCARDO, Real Party in Interest.

Karl STORZ, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Barbara RICCARDO, Real Party in Interest.

No. L.A. 31680.

Supreme Court of California.

Dec. 22, 1983.

Patterson, Ritner, Lockwood, Zanghi & Gartner, Jeralyn Keller, and John M. Coleman, Los Angeles, Rushfeldt, Shelley & McCurdy, North Hollywood, Horvitz & Greines, Irving H. Greines, Alan G. Martin, Barry R. Levy, Kent L. Richland, Encino, Billips & Desimone, Santa Monica, John F. Maloney, Los Angeles and Salvatore Desimone, Santa Monica, for petitioner.

No appearance for respondent.

Iverson, Yoakum, Papiano & Hatch, Neil Papiano, John A. Slezak and Arnold D. Larson, Los Angeles, for real party in interest.

Leonard Sacks, Northridge, Wylie Aitken, Santa Ana, Glen T. Bashore, North Fork, Ray Bourhis, San Francisco, Richard D. Bridgman, Oakland, Edwin Train Caldwell, San Francisco, Robert E. Cartwright, David S. Casey, Jr., San Diego, Victoria De Goff, Berkeley, Harry J. Delizonna, San Jose, Douglas K. De Vries, Sacramento, Sanford M. Gage, Beverly Hills, Ian Herzog, Los Angeles, G. Dana Hobart, Marina Del Rey, Stanley K. Jacobs, Los Angeles, Harvey R. Levine, John C. McCarthy, Claremont, Timothy W. Peach, San Bernardino, Roberta Ritter, Los Angeles, Arne Werchick, Sausolito, Stephen I. Zetterberg, Claremont, Paul A. Eisler, San Francisco, and James R. McGrath, Glendale, as Amici Curiae on behalf of real party in interest.

BIRD, Chief Justice.

If a defendant requests a trial de novo following arbitration, and, due to court error, five years elapse before the trial de novo commences, may the action be dismissed for failure to comport with the five-year limitation of Code of Civil Procedure section 583? ¹

I.

The facts are not in dispute.

On March 6, 1975, real party in interest, Barbara Riccardo, filed an action for medical malpractice against petitioners, Dr. James Moran and the Santa Monica Hospital Medical Center (Hospital) in Los Angeles County Superior Court. During the next two years, the parties conducted extensive discovery proceedings which included interrogatories, requests for admissions and depositions.

On February 2, 1977, the at-issue memorandum was filed. ² Preparation of the case continued and on August 3, 1979, the certificate of readiness was filed, as required by the local rules. ³ Subsequently, on October 11th, the court held a trial setting conference. At that time, the judge set a mandatory settlement conference for January 25, 1980, and a trial date of February 11, 1980.

At the settlement conference, the trial court determined that the amount in controversy did not exceed $15,000. With 17 days remaining until the scheduled start of trial, the court vacated the trial date and referred the case to arbitration. (See § 1141.11, subd. (a). ⁴) When plaintiff's attorneys expressed concern that the five-year period for bringing the case to trial would expire, the trial judge assured them that the statute would be tolled during arbitration (see § 1141.17 ⁵) and that the case would be restored to the trial calendar should any party request a trial de novo following arbitration (see § 1141.20. ⁶ )

The case went to arbitration and after a full hearing in February and March of 1981, the arbitrator awarded Riccardo $12,000 on her claims against Moran. The arbitrator found against Riccardo as to the other defendants. When the arbitration award was filed on March 17, 1981, the limitations period provided by section 583(b) again commenced to run. At that time 41 days remained before expiration of the 5-year period. On April 3d, 24 days before the expiration of the 5-year period, Moran filed a request for a trial de novo.

Upon receipt of a copy of Moran's request, Riccardo's attorneys contacted the superior court clerk's office by telephone. He requested that the case be reset for trial and given the same position on the trial calendar it had enjoyed prior to being referred to arbitration. (See § 1141.20, ante, fn. 6.) The clerk's office assured the attorneys that the case would be reset within the five-year period. Although follow-up calls by Riccardo's attorneys produced the same assurances, the clerk's office sent the case file to the basement for storage.

The parties took no further action until August 12, 1981, when one of the defendants filed a motion to dismiss for violation of the five-year rule. The next day the trial court ordered a new trial setting conference to be held on September 22nd. On August 28th, the Hospital filed its own section 583(b) motion to dismiss in which Moran subsequently joined.

On September 3, 1981, Riccardo opposed the motions to dismiss and moved to have the case specially set for trial or, alternatively, for judgment on the arbitration award. At this point, 129 days had elapsed since expiration of the 5-year period.

The motions to dismiss were heard and denied on September 18th, on the grounds that Riccardo had made a timely request for resetting following Moran's request for a trial de novo and that the fault in not resetting the case lay with the court clerk. The judge denied Riccardo's motion to set the case for trial on the ground that his department was not the proper one in which to file such a request.

Riccardo filed a new motion to specially set in the proper department which was heard on September 28, 1981. The motion was granted and the case was calendared for trial on October 14, 1981.

Before the trial commenced, defendants Moran, Storz, and the Hospital filed petitions for writ of mandate in the Court of Appeal to compel the trial court to dismiss the action. Proceedings in the lower court were stayed and on September 21, 1982, the Court of Appeal issued the requested writ ordering Riccardo's action dismissed for failure to comply with the five-year rule. Her petition for hearing in this court followed.

II.

The sole issue presented by this proceeding is whether the trial court properly denied the section 583(b) motion to dismiss Riccardo's malpractice action. ⁷

Section 583(b) provides that a civil case "shall be dismissed" on motion of the defendant or the court if it is not brought to trial within five years after the action is filed.

The aim of section 583 is to "promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed ... [and] to protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time." (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492; Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 102, 191 Cal.Rptr. 549.) ⁸

Despite the mandatory language of the section, ⁹ this court has made an effort to "set[ ] reality above artificiality" in applying section 583(b). (Christin v. Superior Court (1937) 9 Cal.2d 526, 532, 71 P.2d 205.) Implied exceptions to the rule have been recognized "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, supra, 9 Cal.2d at p. 533, 71 P.2d 205; accord General Motors, supra, 65 Cal.2d at p. 94, 52 Cal.Rptr. 460, 416 P.2d 492; City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 916, 207 P.2d 17, cert. den. 339 U.S. 937, 70 S.Ct. 671, 94 L.Ed. 1354; see also Bennett v. Bennett Cement Contractors, Inc. (1981) 125 Cal.App.3d 673, 676, 178 Cal.Rptr. 633.) The reasoning underlying these implied exceptions has been repeatedly noted. "The purpose of the statute is ... to prevent avoidable delay for too long a period. It is not designed arbitrarily to close the proceeding at all events in five years...." (Christin, supra, 9 Cal.2d at p. 532, 71 P.2d 205, emphasis in original; accord Woley v. Turkus (1958) 51 Cal.2d 402, 406, 334 P.2d 12; Rose v. Knapp (1951) 38 Cal.2d 114, 117, 237 P.2d 981; Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 67-68, 168 P.2d 665.)

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. ( General Motors, supra, 65 Cal.2d at p. 96, 52 Cal.Rptr. 460, 416 P.2d 492; Woley v. Turkus, supra, 51 Cal.2d at p. 407, 334 P.2d 12, Rose v. Knapp, supra, 38 Cal.2d at p. 117, 237 P.2d 981.) 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.

The "reasonable diligence" standard is an appropriate guideline for evaluating whether it was impossible, impracticable, or futile for the plaintiff to comply with section 583(b) due to causes beyond his or her control. (See Westinghouse Electric, supra, 143 Cal.App.3d at p. 105, 191 Cal.Rptr. 549.) Section 583(b) should not be applied to "penaliz[e] conduct entirely reasonable" nor to impose a "procedure detrimental to the interest of both court and litigants." (Christin, supra, 9 Cal.2d at p. 533, 71 P.2d 205.) Neither the courts nor litigants have any legitimate interest in preventing a resolution of the lawsuit on the merits if, through plaintiff's exercise of reasonable diligence, the goals of section 583(b) have been met.

This "reasonable diligence" standard has already been adopted in several cases in which the application of section 583(b) has been at issue. (See Bennett, supra, 125 Cal.App.3d 673, 178 Cal.Rptr. 633; Preston v. Kaiser Foundation Hospitals (1981) 126...