Rose v. Boydston

• Decision Date: 28 July 1981
• Citation: 122 Cal.App.3d 92,175 Cal.Rptr. 836
• Parties: Manuel ROSE and Ronald Brunswick, individually and doing business as Location Research & Development Company, Cross-Complainants and Appellants, v. Frances BOYDSTON, as Administrator of the Estate of Benjamin Boydston, etc., Deceased, and Donald Boydston, Cross-Defendants and Respondents. Civ. 57128.
• Court: California Court of Appeals Court of Appeals

Page 836

175 Cal.Rptr. 836

122 Cal.App.3d 92

Manuel ROSE and Ronald Brunswick, individually and doing business as Location Research & Development Company, Cross-Complainants and Appellants, v. Frances BOYDSTON, as Administrator of the Estate of Benjamin Boydston, etc., Deceased, and Donald Boydston, Cross-Defendants and Respondents.

Civ. 57128.

Court of Appeal, Second District, Division 4, California.

July 28, 1981.

Roger A. Saevig, Irvin, for cross-complainants and appellants.

Walleck, Shane, Pelletier & Stanard, Roger L. Stanard and Robert M. Anderson, Woodland Hills, for cross-defendants and respondents.

FILES, Presiding Justice.

This is an appeal from the dismissal of a cross-complaint for failure to bring the case to trial within the time provided in section 583 of the Code of Civil Procedure.

Procedural history.

On June 11, 1970, Jensen-Thompson Associates filed a complaint in the Ventura County Municipal Court against Manuel Rose and Ronald Brunswick, doing business as Location Research & Development Co., for payment of the fee for engineering services on a land development project. On December 18, 1970, Rose and Brunswick cross-complained against Benjamin and Donald Boydston for dissolution of an alleged joint venture and for an accounting and payment of whatever was due Rose and Brunswick.

In March 1971 the case was transferred to the superior court, and the Boydstons answered the cross-complaint.

Judgment was entered on the original complaint on stipulation of the parties.

The cross-complaint was tried on June 28 and 29, 1973, before Edwin Beach, Judge of the Ventura County Superior Court. Findings and an interlocutory judgment in favor of cross-complainants Rose and Brunswick on the existence and terms of a joint venture were filed on October 31, 1973. The interlocutory judgment declared: "That an accounting be had and rendered to this Court fixing and determining the amount of damages or other compensation due to any party. (P) This decree is interlocutory and the Court will retain jurisdiction for such additional period of time as may be necessary for the purpose of rendering and settling an account herein."

At some time after the interlocutory judgment was filed, Judge Beach was elevated to the Court of Appeal, and the case was assigned to Judge Willard of the Ventura County Superior Court. When the case came on for hearing before Judge Willard on May 29, 1974, it became apparent that opposing counsel had different views as to the effect of the interlocutory judgment. After a lengthy colloquy Judge Willard expressed his view that a mistrial must be declared and the entire case be retried de novo unless Justice Beach returned to complete the trial or the parties stipulated to be bound by the interlocutory decision. The hearing concluded with a minute order which provides as follows: "The court orders: 1. That trial of the action be continued to September 30, 1974, at 9:00 A.M. Department 3, there to be assigned for trial. 2. That such trial will be trial de novo on all issues involved in the case unless one of the following conditions occurs: a. That Justice Edwin Beach of the Court of Appeal is then available to try the case, or b. The parties stipulate that the prior findings, conclusions and interlocutory judgment signed and entered by Justice Beach are binding upon them."

The presiding judge of the Ventura County Superior Court did thereafter ask that Justice Beach be assigned back by the Chief Justice to complete this case, but it does not appear that any such assignment was made. Neither does it appear that the Chief Justice gave any indication whether or not Justice Beach might be assigned at some future time.

On September 16, 1974, the cross-defendants employed a new associate counsel who asked for a continuance of the proceedings scheduled for September 30. On September 23, pursuant to stipulation, Judge Willard made the following minute order: "Trial heretofore assigned to Justice Edwin F. Beach by order of June 10, (sic) 1974 to be heard on September 30, 1974 is vacated."

Thereafter the trial date was continued six times until on May 16, 1977, the presiding judge ordered the case stricken from the civil active list and the at-issue memorandum vacated. Five of those continuances were by stipulation. The minutes do not show the reason for the other one.

The cross-defendants filed a new at-issue memorandum on July 7, 1977, and after a trial setting conference on February 3, 1978, trial was set for July 31, 1978.

Cross-defendants gave written notice of that trial date.

Further continuances on the court's motion or by stipulation put the case over to August 21, 1978. On that date counsel for cross-complainants failed to appear and the case was dismissed. On August 29, 1978, the default dismissal was set aside and the case set for trial October 10, 1978. On the court's motion the case trailed to October 13, 1978, on which day cross-defendants filed a written motion to dismiss under Code of Civil Procedure section 583, subdivision (b) (failure to bring the case to trial within five years from commencement) and subdivision (d) (failure to bring the case to trial within three years after a mistrial).

On November 1, 1978, the motion to dismiss was granted by a minute order which was followed by the following bracketed citation: "(C.C.P. 583(a), (b) and (d))."

This appeal is from that order. The notice of appeal also refers to the court's order of May 29, 1974, which is not one of the orders from which a separate appeal may be taken. (Code Civ.Proc., § 904.1.)

Effect of the elevation of Judge Beach.

Before discussing the application of the dismissal statute (Code Civ.Proc., § 583), it is helpful to consider the posture of the case upon the departure of Judge Beach from the superior court.

The trial before Judge Beach resulted in findings that the parties had entered into a joint venture to purchase, lease out and develop some land owned by the Boydstons. The findings also described the terms of the agreement and related some of the acts done in performing the agreement, but did not include any statement as to the present status of the business. In the conclusions of law the court stated: "That said parties are entitled to an accounting and that either be required to pay to the other what on the taking of said accounting appears to be due to them as damages or compensation."

It is clear from this record that substantial issues remained undecided. The findings do not determine whether the parties had performed their respective duties, nor do they determine what assets existed and which party had control of them. The mention of damages in the conclusions of law indicates that the court had not determined whether, and to what extent, any of the parties had been guilty of a breach of duties owed to the others.

The "judgment" signed by Judge Beach was denominated "interlocutory" and was in substance interlocutory. The decision reflected in that interlocutory judgment was not final in any respect because further judicial decisions were required. (Lacey v. Bertone (1949) 33 Cal.2d 649, 653, 203 P.2d 755; Middleton v. Finney (1931) 214 Cal. 523, 6 P.2d 938; 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, §§ 7-11, pp. 3186-3188.)

The interlocutory judgment was subject to modification at any time prior to the entry of a final judgment. (Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751, 760, 135 Cal.Rptr. 579.)

In Lacey v. Bertone (1952) 109 Cal.App.2d 107, 240 P.2d 395, an action for specific performance, was tried before a judge who died after having made an interlocutory judgment and ordered an accounting. In affirming a decision made by a second judge the court said at page 111, 240 P.2d 395: "Had the first judge proceeded with the accounting matter, at the time of making the final judgment he could have changed any of his prior findings if he felt that the evidence required it, even including the findings on the main issue. So a second judge in making his final judgment may change such of the prior judge's findings which he feels the evidence requires,...