Reid v. Balter
| Decision Date | 06 April 1993 |
| Docket Number | No. B058279,B058279 |
| Citation | 14 Cal.App.4th 1186,18 Cal.Rptr.2d 287 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert J. REID, et al., Plaintiffs, Cross-defendants, and Appellants, v. Herbert BALTER, et al., Defendants, Cross-complainants and Respondents. |
Maynard J. Klein, Torrance, for plaintiffs, cross-defendants and appellants.
Defendants Maureen and Herbert Balter ("defendants") appeal from a judgment entered in favor of plaintiffs Lorene and Robert Reid ("plaintiffs"). Following a jury trial on the merits, defendants challenge an order which vacated a prior order of dismissal that had been entered after plaintiffs had failed to appear at a scheduled pretrial status conference. Defendants also challenge a subsequent order which denied their motion for discretionary dismissal for failure to timely prosecute. Plaintiffs have cross-appealed; they challenge the amount of prejudgment interest they were awarded.
In rejecting the defendants' contentions, we conclude that (1) the challenge to the order vacating the dismissal is without merit, (2) defendants have failed to show they were prejudiced at trial by the order which denied their motion for discretionary dismissal, (3) defendants should have challenged the denial of their motion for dismissal by immediately petitioning the court of appeal for a writ of mandate rather than waiting to challenge it on appeal after the case was tried and judgment entered, and (4) plaintiffs are entitled to prejudgment interest based on a different rate than the one used by the court. We therefore affirm the judgment in part and reverse it in part.
Plaintiffs filed this action on May 16, 1986, alleging that pursuant to a contract for sale of real property (consisting of certain rental units), defendants had given them a promissory note for $50,000 and thereafter refused to make payments on the note. Plaintiffs sought damages and enforcement of a vendor's lien.
Defendants answered the complaint and filed a cross-complaint against plaintiffs. In the cross-complaint, defendants alleged that when plaintiffs sold them their interest in the rental property, plaintiffs left defendants with unpaid bills which defendants had to pay. Defendants alleged that payment of such bills cost them $48,546.60 and they were entitled to have plaintiffs pay them one-half of that amount. An at-issue memorandum was filed by plaintiffs on April 22, 1987.
Plaintiffs gave defendants notice of a trial setting conference to be held May 15, 1989. Part of that notice included a copy of the superior court's form entitled "Trial Setting Conference and Intention to Dismiss on Courts (sic) Own Motion." That form includes a warning to a plaintiff that if the plaintiff's case is more than two years old and the plaintiff or plaintiff's attorney does not personally appear at the trial setting conference, the court will enter an order dismissing the action for lack of prosecution pursuant to Code of Civil Procedure, section 583.420, subdivision (a)(2)(B). A more general warning of sanctions informs the parties that the trial court will impose "sanctions" for failure to comply with the delay reduction rules and orders made by the court.
At the May 15, 1989 trial setting conference, the court ordered the matter to arbitration. The court's order stated in part: The order also stated that if the court's orders were violated, "sanctions may be imposed by way of contempt, payment of money, including attorney's fees and costs incurred by other parties, and/or removal of the case from the civil active list."
After the arbitrator made his award, plaintiffs filed a request for a trial de novo. However, when plaintiffs failed to appear at the scheduled status conference on October 27, 1989, the trial court ordered the case removed from the civil active list, ordered the at-issue memorandum vacated and dismissed the case, citing Code of Civil Procedure section 583.410 for the dismissal. 1
On January 23, 1991, fifteen months after the case had been dismissed, plaintiffs filed a motion to set the case for a status conference and assign a trial date. Plaintiff's motion stated that it was being made "upon the grounds that the within action has been pending four years and eight months and must be set for trial to avoid the five year mandatory dismissal bar." Defendants filed opposition to the motion, contending the court had no jurisdiction to set the case for trial because it had already been dismissed. On the day set for hearing of the motion, defendants' attorney appeared in court to argue the matter but the clerk indicated to the court that plaintiffs' attorney had telephoned that very morning and taken the motion off calendar.
On February 13, 1991, sixteen months after the case had been dismissed and three months before the five-year anniversary of the case, plaintiffs filed a motion to vacate the prior dismissal and to set the case for status conference and trial. Defendants filed opposition. The court (1) vacated the dismissal, (2) reinstated the complaint and cross-complaint, (3) ordered plaintiffs' attorney to pay sanctions to defendants' attorney and to the County of Los Angeles, (4) denied the motion to specially set for trial, (5) granted the motion to set a status conference, (6) indicated that it was vacating the order of dismissal without prejudice to defendants' bringing a motion to dismiss for failure to prosecute, (7) shortened time for notice of such a motion, and (8) set a hearing date of March 29, 1991 for the motion to dismiss.
Thereafter, defendants filed their motion to dismiss. The motion was denied. The court's minute order states in part: "The court finds reasonable diligence by plaintiffs in prosecuting this action."
The case went to trial and, on May 28, 1991, plaintiffs obtained a judgment in the sum of $50,000. The court awarded interest at the parties' contract rate of 12%. However, the court ruled the contract rate of interest would only apply up through March 1, 1988, (which plaintiffs state in their brief was the date the last installment on the promissory note became due). The judgment stated that after March 1, 1988, the interest rate would be 10% to the date of judgment.
Defendants have appealed from the judgment, challenging the order which vacated the dismissal of the action and the order which denied their motion to dismiss. Plaintiffs have also appealed. They challenge the court's decision to award them 12% interest only up through March 1, 1988.
The factual background of this case is gleaned from declarations submitted by the parties in connection with the plaintiffs' motion to vacate and the defendants' subsequent motion to dismiss.
In support of plaintiffs' motion to vacate the dismissal and set the case for trial, their attorney, Maynard J. Klein, submitted his declaration. In it, he stated that even though the case had been dismissed on October 27, 1989, he was not aware of the dismissal until fifteen months after it occurred. According to Klein, the dismissal came about in the following manner.
Klein was due to appear at the trial setting conference on May 15, 1989, but due to a calendar conflict, he sent a substitute attorney to that conference. Shortly after May 15, 1989, that substitute attorney advised Klein that the case had been referred to arbitration but, "to the best of [Klein's] recollection," the substitute did not advise Klein that the trial court had also set a status conference for October 27, 1989. For that reason, Klein did not appear at the status conference. He never received any notice from the trial court to the effect that if plaintiff did not attend the October 27, 1989 status conference, the case would be dismissed. He has always been under the impression that after one files a request for a trial de novo, "in due course the Court would assign a date for another trial setting or status conference." That assumption on his part was based on his experience in handling one other case where a party had requested a trial de novo after an arbitration.
When, by April 4, 1990, he had not heard anything about a new conference date, Klein sent his attorney service to look at the court's file to make sure that the request for trial de novo had actually been filed and to see when the case would be set for trial. Klein "assumed from the response [of the attorney service] that nothing had occurred since the filing of the Request for Trial de Novo and therefore continued to assume that a trial setting conference would thereafter be scheduled by the Court." 2 According to Klein, his "experience in Department 1 of the Court, during the second half of 1990, was that, except for priority matters, only 'five year cases' were being assigned for trial" and he had previously been so advised by the then-presiding judge of the superior court. Klein stated that necessary discovery had been completed before the arbitration hearing of September 20, 1989, and the case had been ready for trial since that time.
Defendants' attorney submitted his declaration in support of defendants' motion to dismiss for lack of prosecution. In it he noted that prior to the 15-month period of inaction on plaintiffs' part after the case was dismissed, there had also been periods of inactivity while the case was actually pending, specifically two 10-month periods and one 8-month period during which nothing happened in this case. The attorney stated that because of the long passage of time since the...
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Appendix 1
...pretrial motions following trial, and denials of suppression motions after a guilty or nolo contendere plea. [ Reid v. Balter (1993) 14 Cal. App. 4th 1186; Cal. Penal Code §1538.5(m).] If a defendant is successful on appeal from a suppression motion denial, the appellate court will reverse ......