Putnam v. Clague

• Decision Date: 07 February 1992
• Docket Number: Nos. F014197,F014202 and F014371,s. F014197
• Citation: 3 Cal.App.4th 542,5 Cal.Rptr.2d 25
• Court: California Court of Appeals Court of Appeals
• Parties: Michael PUTNAM et al., Plaintiffs and Appellants, v. Brian CLAGUE, Defendant and Respondent. Gene C. HESS et al., Plaintiffs and Appellants, v. Brian CLAGUE, Defendant and Respondent. Eddie D. RAGSDALE et al., Plaintiffs and Appellants, v. Brian CLAGUE, Defendant and Respondent.

Page 25

5 Cal.Rptr.2d 25

3 Cal.App.4th 542

Michael PUTNAM et al., Plaintiffs and Appellants, v. Brian CLAGUE, Defendant and Respondent.

Gene C. HESS et al., Plaintiffs and Appellants, v. Brian CLAGUE, Defendant and Respondent.

Eddie D. RAGSDALE et al., Plaintiffs and Appellants, v. Brian CLAGUE, Defendant and Respondent.

Nos. F014197, F014202 and F014371.

Court of Appeal, Fifth District, California.

Feb. 7, 1992.

Review Denied April 23, 1992.

[3 Cal.App.4th 545] Victoria J. De Goff, De Goff and Sherman, Berkeley, Paul V. Melodia, Walkup, Shelby, Bastian, Melodia, Kelly, Echeverria & Link, San Francisco, for plaintiffs and appellant.

Donald R. Fischbach, Douglas M. Larsen, Baker, Manock & Jensen, Fresno, for defendant and respondent.

OPINION

THAXTER, Associate Justice.

These three consolidated appeals present the frequently raised, always troubling, question of whether the trial court abused its discretion in dismissing an action for delay in prosecution. We hold that when the plaintiff makes a credible showing of excuse, based on counsel's decisions which are not clearly unreasonable, dismissal should not be ordered unless the defendant was prejudiced by the delay or some other circumstance shows that the interests of justice are best served by dismissal. Here the plaintiffs made a sufficient showing of excuse and the defendant showed no prejudice or other factors justifying dismissal. Accordingly, we reverse.

PROCEDURAL AND FACTUAL BACKGROUND

Michael and Geralyn Putnam filed a complaint against defendant Brian Clague, M.D., for medical negligence, lack of informed consent, and loss of consortium on May 29, 1987. Eddie and Marcia Ragsdale filed a similar complaint on June 9, 1987, and Gene and Leona Hess did likewise on December 1, 1987. Paul V. Melodia of the law firm of Walkup, Shelby, Bastian, Melodia, Kelly & O'Reilly represented the Putnams and Hesses throughout the pendency of their actions. The Ragsdales filed their complaint in propria persona, but Melodia was substituted in as their counsel on February 26, 1988.

On March 2, 1990, defendant filed motions to dismiss the Putnam and Hess actions, citing CODE OF CIVIL PROCEDURE SECTION 583.420¹, subdivision (a)(1), which provides that the court may not dismiss an action for delay unless "Service is not made within two years after the action is commenced against the defendant." Defendant's moving papers established that summonses in the Putnam and Hess actions were served on defendant's attorneys on or about January 26, 1990, and that the attorneys accepted service on defendant's behalf on February 11, 1990.

The Putnams and Hesses filed opposition to the dismissal motion in their respective actions. In each case, the plaintiffs stated that their case was one of numerous ² cases handled by Paul Melodia against defendant Clague arising from Clague's performance of surgeries using a procedure allegedly falling below the applicable standard of care. Melodia's declaration disclosed that he elected to pursue a case filed by Randall Thompson as "a 'lead' case on the issue of negligence/standard of care, with the understanding that evidence developed in Thompson would be applicable to the other Clague cases. After extensive discovery, at least six experts' depositions, and a number of trial date continuances (some of which were requested by Dr. Clague rather than due to court congestion), the Randall Thompson case was settled in June of 1989. Prior to the settlement, Dr. Clague had accepted service on four other cases; ..."

The dismissal motions were jointly heard by Judge Lawrence Jones on April 3, 1990, and were granted. The court expressly ruled that the reasons given by the plaintiffs "do not amount to excusable delay or justifiable delay." The court granted the motions on that basis alone and expressly did not reach the issue of whether Clague was prejudiced by the delay in service.

On April 4, 1990, Clague filed a similar motion in the Ragsdale action. The moving papers established that Clague's attorneys were served with the summons and complaint on March 12, 1990, and accepted service the following day. The Ragsdales filed opposition substantially similar to that filed by the Putnams and Hesses. The motion was heard and granted on May 31, 1990, by Judge Lawrence J. O'Neill.

Each set of plaintiffs filed a timely notice of appeal. The three appeals were consolidated in this court.

DISCUSSION

1. Governing Law

Under section 583.420, subdivision (a)(1), "The court may not dismiss an action ... for delay in prosecution except after ... [p] Service is not made within two years after the action is commenced against the defendant."

In each of the instant cases, service was not made within two years of commencement of the action. Thus, under section 583.420 the court below had discretion to dismiss the actions. Appellants argue the court abused that discretion.

" 'Although discretion is vested in the trial judge, that discretion is not unfettered. It cannot be exercised arbitrarily, but must be an impartial discretion to be exercised in conformity with the spirit of the law and in a manner to subserve the ends of substantial justice.' [Citation.]" (Longshore v. Pine (1986) 176 Cal.App.3d 731, 737, 222 Cal.Rptr. 364.)

Section 583.420, subdivision (a)(1) was enacted when the Legislature revised the statutes relating to involuntary dismissal for failure to prosecute. (See Stats.1984, ch. 1705.) That revision resulted from recommendations following an intensive study of the subject by the California Law RevisionCommission. (See Recommendation Relating to Dismissal for Lack of Prosecution, 16 Cal.Law Revision Com.Rep. (1982) p. 2207; Revised Recommendation Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal.Law Revision Com.Rep. (1984) p. 907.)

The Law Revision Commission summarized its reasons for recommending revision of the dismissal statutes:

"Over the years the attitude of the courts and the Legislature toward dismissal for lack of prosecution has varied. From around 1900 until the 1920's the dismissal statutes were strictly enforced. Between the 1920's and the 1960's there was a process of liberalization of the statutes to create exceptions and excuses. Beginning in the late 1960's the courts were strict in requiring dismissal. In 1969 an effort was made in the Legislature to curb discretionary court dismissals, but ended in authority for the Judicial Council to provide a procedure for dismissal. In 1970 the courts brought an abrupt halt to strict construction of dismissal statutes and began an era of liberal allowance of excuses that continues to this day. The current judicial attitude has been stated by the Supreme Court: 'Although a defendant is entitled to the weight of the policy underlying the dismissal statute, which seems to prevent unreasonable delays in litigation, the policy is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds.'

"Fluctuations in basic procedural policy are undesirable. Every policy shift generates additional litigation to establish the bounds of the law. The policy of the state towards dismissal for lack of prosecution should be fixed and codified, and the dismissal statutes should be construed consistently with this policy. The Law Revision Commission believes that the current preference for trial on the merits over dismissal on procedural grounds is sound and should be preserved by statute. The proposed legislation contains a statement of this basic public policy." (17 Cal.Law Revision Com.Rep., op. cit. supra, at pp. 910-911, fns. omitted.)

The Legislature followed the Commission's recommendation for enactment of section 583.130 directing that, "[e]xcept as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action...."

Notwithstanding the legislative declaration favoring trial on the merits over dismissal for delay in prosecution and despite the Commission's stated desire that "the dismissal statutes should be construed consistently with this policy," cases upholding discretionary dismissals for delay in prosecution abound. ³ Several other reported decisions have concluded that discretionary dismissal was not warranted under the particular circumstances of those cases. ⁴ Apparently, neither the statutory revision nor the Judicial Council's adoption of a rule listing relevant matters a court may consider in ruling on a motion for discretionary dismissal (Cal.Rules of COURT, RULE 373(E)⁵) has reduced the discretionary dismissal issues arising at both the trial and appellate levels. Because the statutes reflect policies pulling in opposite directions, uncertainty and inconsistency of application are apparently inevitable.

One rule which has rather clearly emerged from the decisional law is that the plaintiff, opposing a motion to dismiss for delay in prosecution, has the initial burden to show excusable delay. Only after he has done so does the court consider other factors such as prejudice. (See, e.g., Wong v. Davidian, supra, 206 Cal.App.3d at pp. 269-270, 253 Cal.Rptr. 675; Cordova v. Vons Grocery Co., supra, 196 Cal.App.3d at p. 1533, 242 Cal.Rptr. 605; Trailmobile, Inc. v. Superior Court, supra, 210 Cal.App.3d at pp. 1457-1458, 259 Cal.Rptr. 100; Schumpert v. Tishman Co., supra, 198 Cal.App.3d at p. 606, 243 Cal.Rptr. 810.) "[T]he policy of disposing of litigation on the merits does not prevail unless the plaintiff makes some showing of excusable delay." (Cubit v. Ridgecrest Community Hospital, supra, 194 Cal.App.3d at p. 1567, 240 Cal.Rptr. 346; see Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342,...