Ross v. George Pepperdine Foundation

• Decision Date: 29 September 1959
• Citation: 174 Cal.App.2d 135,344 P.2d 368
• Court: California Court of Appeals Court of Appeals
• Parties: E. M. ROSS and Patricia Ross, husband and wife, Plaintiffs and Appellants, v. GEORGE PEPPERDINE FOUNDATION, a non-profit corporation, George Pepperdine and Helen Louise Pepperdine, husband and wife, Charles M. Ross, J. B. Halbert, P. L. Roger, and John Does 1 to 10, Defendants, George Pepperdine and Charles M. Ross, Respondents. Civ. 23721.

Page 368

344 P.2d 368

174 Cal.App.2d 135

E. M. ROSS and Patricia Ross, husband and wife, Plaintiffs and Appellants, v. GEORGE PEPPERDINE FOUNDATION, a non-profit corporation, George Pepperdine and Helen Louise Pepperdine, husband and wife, Charles M. Ross, J. B. Halbert, P. L. Roger, and John Does 1 to 10, Defendants, George Pepperdine and Charles M. Ross, Respondents.

Civ. 23721.

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

Sept. 29, 1959.

Hearing Denied Nov. 25, 1959.

Robert J. Johnston, Pasadena, for appellants.

Benjamin S. Crow, Los Angeles, for respondent George Pepperdine.

Robert J. McGowan, Van Nuys, for respondent Charles M. Ross.

ASHBURN, Justice.

Appeal by plaintiffs from judgments of dismissal made pursuant to motion under § 583, Code of Civil Procedure, ¹ which motion was granted upon the ground that plaintiffs had failed to bring the cause to trial within five years after the filing of the action. One of these judgments is in favor of defendant George Pepperdine, made on April 24, 1958, and the other in favor of Charles M. Ross, filed April 28, 1958. This action, which was commenced on November 12, 1952, seeks recovery of damages for deceit in the form of false representations as to the financial affairs of defendants George Pepperdine Foundation.

By May 26, 1953, the cause was at issue upon a second amended complaint except as to said defendant Foundation, which by stipulation of plaintiffs had been relieved of the necessity of pleading to said complaint for a period of ten days after receiving notice from plaintiffs so to do. This stipulation was made on April 28, 1953. No notice to plead was ever given and no answer to said complaint was interposed by said Foundation. However, it made a motion in a voluntary dissolution proceeding, which was pending in the same court and entitled 'In the Matter of the George Pepperdine Foundation, a corporation, In the Process of Voluntary Winding Up', that the instant action be stayed as to the Foundation. The motion was granted by order of July 20, 1953. From the incomplete record before us it seems that this was not a temporary stay but one which (at least, as a practical matter) ended the action as to the Foundation. The order says, in part: 'The Court * * * concludes therefrom that George Pepperdine Foundation is entitled to an order staying further prosecution of said action as to it, It Is Therefore Ordered that further prosecution against George Pepperdine Foundation, one of the defendants therein, of that certain action entitled E. M. Ross, et al., v. George Pepperdine Foundation, et al., No. 608977 in the Superior Court of the State of California, in and for the County of Los Angeles be, and the same is hereby, stayed.'

Pursuant to leave granted plaintiffs filed a third amended complaint on December 1, 1955. Answers thereto were filed by the following defendants: Helen Louise Pepperdine (Mrs. George Pepperdine) on December 19, 1955; Charles M. Ross on December 21, 1955; and George Pepperdine on June 6, 1956. Helen Louise Pepperdine moved for a summary judgment through notice filed on May 29, 1956. Plaintiffs filed no opposing affidavits and did not appear through counsel or in person at the time of the hearing. The motion was granted and judgment dismissing the action as to said defendant was entered on August 7, 1956.

The cause having been stayed as to the Foundation, this dismissal of Helen Louise Pepperdine reduced the ranks of the defendants interested in the present appeal to Charles M. Ross and George Pepperdine. ² The cause remained in this posture until May 15, 1957, when plaintiffs filed a memorandum for setting. April 25, 1958 was thereupon set for pretrial hearing and a trial date of June 5, 1958 was fixed. When this memorandum of setting was filed on May 15, 1957, the action had been pending approximately four and one-half years. No effort was made by plaintiffs to procure a trial date or a pretrial date before expiration of the five-year statutory period. Cf. J. C. Penney Co. v. Superior Court, 52 Cal.2d 666, 343 P.2d 919; Wilson v. Barry, 168 Cal.App.2d 378, 335 P.2d 980. The five years expired on November 12, 1957, and as noted the trial date set pursuant to that memorandum was June 5, 1958, some six months after said expiry. On March 21, 1958, defendants Charles M. Ross and George Pepperdine filed motions to dismiss and same were thereafter granted, resulting in the judgments of April 24, 1958 and April 28, 1958, which are now before us on appeal.

Appellants' first contention is that this cause was brought to trial within five years, thus the dismissal requirements of § 583 are inapplicable. The argument is that the hearings upon and decisions sustaining demurrers, and the summary judgment proceedings, constituted 'partial trials' of issues of law and fact in the case (cf. 16 Cal.Jur.2d, § 35, p. 192). Reliance is placed upon Smith v. City of Los Angeles, 84 Cal.App.2d 297, 301-303, 190 P.2d 943, and Berri v. Superior Court, 43 Cal.2d 856, 859-860, 279 P.2d 8, to sustain this position. They are inapplicable. In both cases a demurrer was sustained without leave to amend, which is not true at bar.

In the instant case, none of the rulings on demurrer resulted in a final determination of the action. Each demurrer was sustained with leave to amend, amended complaints were in fact filed, and upon the filing of respondents' answers the case was at issue and ready for trial. 'The rule is established that 'the hearing of a demurrer is not a trial, within the meaning of Section 583, unless the ruling on the demurrer is a final determination of the rights of the parties.' Anderson v. City of San Diego, 118 Cal.App.2d 726, 731, 258 P.2d 842, 844; Berri v. Superior Court, 43 Cal.2d 856, 858, 279 P.2d 8.' Legg v. United Benefit Life Ins. Co., 136 Cal.App.2d 894, 897, 289 P.2d 553, 556.

Appellants' contention as to the effect of the summary judgment is likewise without merit. A summary judgment proceeding is not a trial upon the merits; it determines only whether any triable issues of fact exist. Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62; Desny v. Wilder, 46 Cal.2d 715, 725-726, 299 P.2d 257. The moving parties may be less than all of the defendants named in the action. See, Barry v. Rodgers, 141 Cal.App.2d 340, 342-343, 296 P.2d 898. True, it is a final determination in this case as to Helen Louise Pepperdine; she made an independent showing, by way of affidavits in support of her motion, that there was no issue of fact to be tried against her. But the proceeding and judgment determined nothing as to these respondents. The case is a proper one for a several judgment (Code Civ.Proc. § 579), and there being no triable issue as against Helen Louise Pepperdine, one of several defendants, a final judgment disposing of the case as to her does not prevent the court from proceeding against respondents. Cf. Weisz v. McKee, 31 Cal.App.2d 144, 147, 87 P.2d 379, 88 P.2d 200; Williamson v. Joyce, 140 Cal. 669, 671-672, 74 P. 290. We conclude that none of the proceedings hereinabove mentioned constituted a 'partial trial' as to these respondents within the meaning of § 583.

To escape the mandatory language of said section, counsel for appellants invokes cases such as Christin v. Superior Court, 9 Cal.2d 526, 530, 71 P.2d 205, 112 A.L.R. 1153; Rose v. Knapp, 38 Cal.2d 114, 237 P.2d 981; Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740-741, 329 P.2d 489, and South v. Wishard, 165 Cal.App.2d 8, 13, 331 P.2d 227, 231, which recognize as ground for extension of the statutory period 'impracticability and futility of action which could have been taken' within the prescribed five-year period. This doctrine of impracticability was restated by us in Fisher v. Superior Court, 157 Cal.App.2d 126, 129, 320 P.2d 894, 896: 'The provisions of section 583, requiring dismissal if an action is not brought to trial within five years after the filing of the complaint, unless the parties have stipulated in writing for an extension of the period, are mandatory where applicable (citing cases) unless the plaintiff brings the case within one of the exceptions provided for in the section or within one of the implied exceptions engrafted on the statute by the decisions.

'One of the recognized exceptions is where, for all practical purposes, proceeding to trial within the statutory period would be both impractical and futile in the light of the facts of the particular case (citing cases).'

Counsel urges the delays incident to the summary judgment and the stay order with respect to the Foundation as sufficient in the aggregate to reduce plaintiffs' delay to something less than five years. It should be noted that neither of those orders was appealed nor any other effort made to review them in any way. Counsel also relies upon one other matter not heretofore mentioned, i. e., delay incident to a change of venue in the early stages of the case. All the defendants were residents of Los Angeles County, but this transitory action was filed in San Diego County. The motion for change of venue was granted and any delays incident thereto are chargeable to plaintiffs as inept procedure (cf. Hayutin v. Rudnick, 158 Cal.App.2d 593, 596, 322 P.2d 1023) without any color of excusable inaction.

Many other delays are also said to place the case in the category of impracticability and futility of affirmative and vigorous prosecution. This argument cannot prevail. Such matters are governed by the principle announced in Continental Pacific Lines v. Superior Court, 142 Cal.App.2d 744, 750, 299 P.2d 417, 421: 'It [the statute] was amended to measure the five years from the beginning of the action, and it was intended that the five years allowed should be considered sufficient to afford fair opportunity to bring a cause to trial, even though a part of the five-year period must necessarily be consumed in service of process disposition of demurrers, ame...