Moran v. Superior Court, Los Angeles County

• Citation: 135 Cal.App.3d 986,185 Cal.Rptr. 805
• Parties: James MORAN, M.D., Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent. Barbara RICCARDO, Real Party in Interest. LUTHERAN HOSPITAL SOCIETY OF SOUTHERN CALIFORNIA, dba Santa Monica Hospital Medical Center, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent. Barbara RICCARDO, Real Party in Interest. Karl STORZ and Karl Storz Kg of Germany, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent. Barbara RICCARDO, Real Party in Interest. Civ. 63693, Civ. 63694 and Civ. 63734.
• Decision Date: 21 September 1982
• Court: California Court of Appeals

Page 805

185 Cal.Rptr. 805

135 Cal.App.3d 986

James MORAN, M.D., Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent.

Barbara RICCARDO, Real Party in Interest.

LUTHERAN HOSPITAL SOCIETY OF SOUTHERN CALIFORNIA, dba Santa Monica Hospital Medical Center, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent.

Barbara RICCARDO, Real Party in Interest.

Karl STORZ and Karl Storz Kg of Germany, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF LOS ANGELES, Respondent.

Barbara RICCARDO, Real Party in Interest.

Civ. 63693, Civ. 63694 and Civ. 63734.

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

Sept. 21, 1982.

Rehearing Denied October 21, 1982

For Opinion on Hearing, see 197 Cal.Rptr. 546, 673 P.2d 216.

Patterson, Ritner, Lockwood, Zanghi & Gartner, Los Angeles, for petitioner James Moran, M.D.

Rushfeldt, Shelley & McCurdy, Horvitz & Greines, Irving H. Greines and Barry R. Levy, Encino, for petitioner Lutheran Hosp. Soc.

Billips & Desimone and Salvatore Desimone, Santa Monica, for petitioner Karl Storz.

No appearance for respondent court.

Iverson, Yoakum, Papiano & Hatch, and John A. Slezak, Los Angeles, for real party in interest Barbara Riccardo.

BEACH, Associate Justice.

Petitions by three codefendants for writs of mandate or prohibition. The question presented is whether plaintiff presented sufficient evidence of impossibility, impracticability or futility of prosecuting her case so as to prevent dismissal thereof pursuant to California Code of Civil Procedure section 583, subdivision (b) ¹ for failure to bring the case to trial within five years. We hold that she did not and that the trial court erred in failing to grant the motion of petitioners (defendants below).

BACKGROUND:

On March 6, 1975, plaintiff filed her action. On January 25, 1980, with about 41 days of the five-year period remaining, the matter was ordered and submitted to judicial arbitration (CCP § 1141.10). An arbitration award was filed on March 17, 1981. On that date there still remained the approximate 41 days before the five-year period expired, the time during which the case was in arbitration having been statutorily tolled from the five-year period. (CCP § 1141.17). One of the defendants demanded trial de novo. In the week following the demand for trial de novo, plaintiff's lawyer had three telephone conversations with clerks of the arbitration and master calendar departments. Thereafter, plaintiff's counsel did nothing to bring the matter to trial. On August 12, 1981, almost five months after the arbitration award was filed, one of the defendants moved to dismiss the action for plaintiff's failure to bring it to trial within the five years under CCP § 583, subdivision (b). The other two defendants joined in the dismissal motion.

Although plaintiff opposed the dismissal, it was not until September 2 that plaintiff made her motion to specially set the case for trial. After hearing, the trial court denied defendant's motion to dismiss. In doing so, the trial court found plaintiff's attorney had made the telephonic inquiry to the court clerks. The trial court found that "under the circumstances ... it was impracticable to take the matter to trial before May 3rd" [1981]. This date was the end of the five-year period as extended by the time the case was in arbitration. But the trial court made no finding concerning the additional time up to August 12, the date of defendant's motion to dismiss. The trial court expressly stated it did not know when the five-year period expired in this particular case.

DISCUSSION:

The evidence and the court's findings were insufficient to support the ruling of the trial court.

CCP § 583, subdivision (b) provides that an "action ... shall be dismissed by the court ... unless such action is brought to trial within five years after the plaintiff has filed his action ...." Although seemingly clear, unambiguous and mandatory, this statute has had judicially created exceptions grafted thereon. The issue to be determined in this case is when the five-year period expired so as to require dismissal under the statute as so engrafted.

Decisional law creating the exceptions have applied the exceptions similarly whether discussing the three-year period of CCP § 581a or the five-year period of § 583, subdivision (b). The five-year mandatory dismissal requirement has been held not to apply if it is established that it was impossible, impracticable or futile for a plaintiff to bring the matter to trial within the five-year period. (Hocharian v. Superior Court (1981) 28 Cal.3d 714, 722, 170 Cal.Rptr. 790, 621 P.2d 829; Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736, 741, 329 P.2d 489.) These decisional exceptions are in addition to any statutory tolling such as the tolling during arbitration provision of CCP § 1141.17 applicable here. There is no problem with the matter of tolling. The question at bench concerns only the problem of what should be done and by whom after the tolling period has ended and subsequent passage of time invokes applicability of the dismissal statute.

CCP § 1141.17 provides for tolling or suspension of the running of the five-year time period of CCP § 583 only until the filing of the arbitration award. Here the trial court found that the arbitration award was filed on March 17, 1981. The statute thus became operative and barred plaintiff from trial, if not brought before the expiration of the five years, presumably 41 days after March 17, 1981. Accordingly, long after the 41 days after which the five-year period had passed, giving allowance for the tolling during arbitration, defendants moved for dismissal because the action was not brought to trial.

The argument asserted by plaintiff's lawyer against the operation of the statute was as follows: (1) rule 1616(b) California Rules of Court returned the case to the civil active list; (2) the clerk would automatically set the action for trial; (3) plaintiff's lawyer had a right to assume "that official duty would be done", however, the case was not set for trial by the clerk nor the court as was their duty. In support of these contentions plaintiff's lawyer filed his declaration and that of one of his partners.

The declaration by one of plaintiff's counsel (Slezak) states: "In reliance upon Rule 1616, I apprised the respective clerks to whom I spoke that it was my understanding that it was the Court's duty to restore the case for immediate disposition in the same position it would have been had there been no arbitration. I further informed them that since a trial date had been assigned prior to the case being ordered to arbitration, the Court was obligated to set an immediate trial date. I added that plaintiff was desirous of a quick conclusion to the case. [p] The response of the clerks in the Master Calendar and Arbitration Offices was that the matter would have to be forwarded to Santa Monica, but that it would immediately be set for trial in accordance with its priority position on the trial calendar. At that time I assumed that the Court clerks and officers would perform their official duty to reset the case for trial as if the arbitration had never been ordered, in which case the five-year rule would not bar a new trial since trial had been scheduled to commence within the five-year period when the matter was ordered to arbitration. [p] Subsequently, during the period from late April through mid-August, 1981, I was extremely busy with other legal matters. During this period of time I presumed, in reliance upon Judge Feinerman's statements in chambers, California Rule of Court § 1616, and my discussions with the Court's clerks, that the case would be restored to its rightful position and the five-year rule would not bar the action during the period of time it took the Court to fulfill its official duty of restoring the matter to the trial calendar."

Slezak's declaration explained that Judge Feinerman in ordering the matter to arbitration had privately in settlement conference with plaintiff's counsel alone, assured plaintiff's lawyers that in the event of demand for trial de novo after arbitration the matter would be returned to its place on the calendar. The declaration by Slezak's partner related only to the same representation by Judge Feinerman.

The fact Judge Feinerman made such representation does not demonstrate any reason to exempt plaintiff from the operation of the provisions of CCP § 583, subdivision (b). The judge did, and could do, nothing more than make a correct statement of the law. That law is embodied in CCP § 1141.17 and California Rules of Court, rule 1616(b). CCP § 1141.17 in pertinent part provides in cases such as at bench that submission to arbitration pursuant to court order "... shall toll the running of such period until the filing of an arbitration award." California Rules of Court, rule 1616(b) simply provides that where trial de novo is demanded the case" ... shall be restored to the civil active list for prompt disposition, in the same position on the list it would have had if there had been no arbitration in the case...." The problem is that this statute and this rule are not self-executing. Someone has to do something. Plaintiff's position is that the someone is the clerk or the court and the something is to set the case for trial immediately or on a date before the five-year period and that plaintiff and her lawyer need not do anything. This is unacceptable and we expressly reject such "no-duty-upon-me-to-help" attitude on the part of counsel.

Established law requires one in plaintiff's position to do all that is reasonable to help bring her case to trial. The record before the trial court upon the motion to dismiss presented no evidence of plaintiff's counsel doing, or even trying to do, what established law requires. There was no showing of plaintiff qualifying under an exception to...