Salas v. Sears, Roebuck & Co.

• Decision Date: 07 August 1986
• Docket Number: No. 32146,32146
• Citation: 42 Cal.3d 342,228 Cal.Rptr. 504,721 P.2d 590
• Parties: , 721 P.2d 590 Francisco R. SALAS, a Minor, etc., et al., Plaintiffs and Appellants, v. SEARS, ROEBUCK & COMPANY, Defendant and Respondent. L.A.
• Court: California Supreme Court

Page 504

228 Cal.Rptr. 504

42 Cal.3d 342, 721 P.2d 590

Francisco R. SALAS, a Minor, etc., et al., Plaintiffs and Appellants, v. SEARS, ROEBUCK & COMPANY, Defendant and Respondent.

L.A. No. 32146.

Supreme Court of California In Bank.

Aug. 7, 1986.

Leonard Sacks, Inc., Encino, Oliver, Sloan, Vargas, Jacobs & Pico, Pasadena, and Leonard Sacks, Encino, for plaintiffs and appellants.

Lillick, McHose & Charles, Ralph D. Kirwan and John Randolph Haag, Los Angeles, for defendant and respondent.

MOSK, Justice.

In this appeal from a mandatory dismissal for failure to bring the action to trial within five years after filing the complaint, we address the issue whether the trial court has discretion to deny a motion for trial preference intended to avoid such dismissal.

We granted review because of a conflict of decision on this issue. (Compare Campanella v. Takaoka (1984) 160 Cal.App.3d 504, 513, 206 Cal.Rptr. 745 [no discretion], and Kotoff v. Efseaff (1985) 172 Cal.App.3d 991, 996-997, 218 Cal.Rptr. 499 [no discretion], with Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 134, 140, 199 Cal.Rptr. 295 [discretion].) As will appear, we conclude that under the governing statute (Code Civ.Proc., § 36, subd. (d) (hereafter § 36(d)), the decision to grant or deny a preferential trial setting rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.

Plaintiff minor was shot accidentally by a friend who was testing a new rifle purchased from defendant Sears, Roebuck & Company (Sears). On September 12, 1979, he and his father filed an action against the friend and Sears seeking damages for negligence, breach of warranty and strict liability. Plaintiffs filed an at-issue memorandum on June 3, 1980, requesting a jury trial.

On July 15, 1983, the trial court sent a "Notice of Trial Setting Conference and Intention to Dismiss on Court's Own Motion" to plaintiffs, requiring them to give all other parties written notice of a hearing on September 21, 1983, within 10 days of receiving the court's notice. They failed to do so, instead simply notifying Sears by telephone on the day before the hearing. Because of plaintiffs' failure to give proper notice, the court took the trial setting conference off calendar and the following week the case was removed from the civil active list.

Plaintiffs did nothing whatever during the succeeding 10 months to reinstate their case on the civil active list or set it for trial. Then, on August 1, 1984, they gave notice to Sears of an ex parte application for an order shortening time for a hearing on a motion for trial preference. On August 3, 40 days before the 5-year bar of former Code of Civil Procedure section 583, subdivision (b) (hereafter § 583(b)), plaintiffs filed a motion for trial preference under section 36(d), making the bare assertion that the interests of justice required such preference. ¹

Sears filed an opposition, and in its memorandum of points and authorities invited the court to dismiss the action on its own motion pursuant to former section 583, subdivision (a) (hereafter § 583(a)). ² At the hearing, the court disclosed that its tentative ruling was to deny the motion for trial preference because of lack of diligence on the part of plaintiffs; nevertheless it ordered a second hearing to be held three days later, inviting the parties to file supplemental papers in support of their positions. Plaintiffs failed to submit any declarations or authority, however, and the court thereupon denied their motion for preference.

Plaintiffs again took no remedial action: they allowed the five-year limitations period to lapse, filing neither a motion for reconsideration of their original motion ( § 1008) nor a second motion for trial preference. On September 26, 1984, each defendant moved to dismiss under section 583(b). In due course the court granted both motions, and signed and filed orders of dismissal. Plaintiffs appealed. ³ The Court of Appeal affirmed the orders of dismissal, holding that a motion to specially set a matter for trial is addressed to the sound discretion of the trial court and that no abuse of that discretion was shown on this record.

Plaintiffs complain that 10 months was "relatively little time" to cure the "technical error" of their failure to give written notice to defendants of the September 1983 trial setting conference. Apart from that conclusory assertion, which is unconvincing, they make no attempt to justify or even explain their lack of diligence in prosecuting this action. Instead, they rest their appeal on the claim that as a matter of law 40 days was adequate time to set the case for trial and that the trial court therefore had a mandatory duty to grant their motion for a preferential trial date to avoid the impending 5-year deadline. We disagree.

On its face section 36(d) commits motions for preference to the trial court's discretion. It provides, "Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference served with the memorandum to set or the at-issue memorandum and accompanied by a showing of cause which satisfies the court that the interests of justice will be served by granting such preference." Plaintiffs contend that "cause" is established as a matter of law when a special setting is necessary to avoid dismissal under section 583(b). They argue that it is an abuse of discretion for the court to deny a motion for preferential setting under such circumstances "even if the plaintiff has been guilty of unreasonable delay." (Campanella v. Takaoka, supra, 160 Cal.App.3d 504, 513, 206 Cal.Rptr. 745; accord, Kotoff v. Efseaff, supra, 172 Cal.App.3d 991, 996-997, 218 Cal.Rptr. 499.)

Although the approach of the five-year limit is a critical consideration in ruling on motions pursuant to section 36(d), it is not exclusive. For the reasons that follow, we disapprove Campanella and Kotoff to the extent they conclude that a court exercising its discretion on a motion for special trial preference may not consider the plaintiff's lack of diligence or prejudice to the defendant once the five-year bar is imminent.

In Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 194 Cal.Rptr. 773, 669 P.2d 9 (hereinafter Wilson), we emphasized that a motion for a preferential setting raises the same issues for the trial court as a motion to dismiss for failure to prosecute pursuant to section 583(a): " 'In passing upon the motion for an early and preferential setting, the court was not limited to a consideration of the single fact that the five-year period was about to expire but was required to view the total picture, including the dilatory action of the plaintiff, the condition of the court's calendar, the rights of other litigants, and the prejudice to the defendant resulting from the delay. [Citations.] The action of the court on such a motion is tantamount to action upon a motion to dismiss for failure to prosecute within the two-year period prescribed by section 583 of the Code of Civil Procedure; in each instance the motion is addressed to its sound legal discretion; the motivating factors in the exercise of that discretion would be pertinent to both motions; and its decision "will be disturbed only in cases of manifest abuse." ' " ⁴ (Id at p. 561, 194 Cal.Rptr. 773, 669 P.2d 9, quoting Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 260, 10 Cal.Rptr. 314, italics deleted.) We concluded that because motions under sections 36(d) and 583(a) turn on identical considerations, a trial court may dismiss sua sponte under the latter in response to a plaintiff's motion for preferential setting, without notifying the plaintiff in advance of its intention to dismiss, as is ordinarily required by former California Rules of Court, rule 203.5(a). (Wilson, 34 Cal.3d at p. 561, 194 Cal.Rptr. 773, 669 P.2d 9.) ⁵

The situation confronting the trial court in the present case is nearly identical to that in Wilson. In both instances plaintiffs were guilty of an appalling lack of diligence and offered no justification for the delay. As in Wilson, plaintiffs here rely on our general policy in favor of trial on the merits. Once again, however, we conclude that although the interests of justice weigh heavily against disposing of litigation on procedural grounds--a policy we reaffirm--that policy will necessarily prevail only if a plaintiff makes some showing of excusable delay. ⁶ (Wilson, at p. 562, 194 Cal.Rptr. 773, 669 P.2d 9; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 418, 134 Cal.Rptr. 402, 556 P.2d 764; Denham v. Superior Court, supra, 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.)

In light of our holding in Wilson, the sole unresolved issue is whether the court had discretion to deny plaintiffs' motion for a preferential setting when the likely consequence was mandatory dismissal under section 583(b). Plaintiffs assert that although the court did have power to dismiss under subdivision (a), as the court did in Wilson, it also had a mandatory duty to grant an early trial setting to prevent dismissal under subdivision (b). They cite Weeks v. Roberts, supra, 68 Cal.2d 802, 808, 69 Cal.Rptr. 305, 442 P.2d 361, in which we declared that 28 days--12 days less than the time remaining in the present case--was as a matter of law reasonable time for a judge to provide a courtroom to avoid dismissal under the 5-year bar.

Weeks is distinguishable on its facts. Unlike the present case, in which plaintiff failed to initiate any discovery or even to restore the case to the civil active list before moving for trial preference, in Weeks the plaintiff had completed discovery and pretrial proceedings and had already been granted a preferential trial date within the five-year limit when a second judge vacated that setting, apparently because of a shortage of courtroom space. We expressly declined to extend our holding to cases in...