San Francisco Lathing, Inc. v. Superior Court In and For City and County of San Francisco

• Decision Date: 26 March 1969
• Citation: 76 Cal.Rptr. 304,271 Cal.App.2d 78
• Parties: SAN FRANCISCO LATHING, INC., and Billy P. Towne, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Henry P. DOYE, Real Party in Interest. Civ. 26429.
• Court: California Court of Appeals Court of Appeals

Page 304

76 Cal.Rptr. 304

271 Cal.App.2d 78

SAN FRANCISCO LATHING, INC., and Billy P. Towne, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent Henry P. DOYE, Real Party in Interest.

Civ. 26429.

Court of Appeal, First District, Division 1, California.

March 26, 1969.

O'Connor, Cohn & Lynch, San Francisco, Cyril Viadro, San Francisco, of counsel, for petitioners.

A. J. Quigley and Peter A. Ribar, San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

In this mandamus proceeding petitioners seek to compel the superior court to vacate its order setting aside a prior order to dismiss an action for plaintiff's failure to prosecute.

On October 19, 1965, plaintiff filed a complaint to recover damages for personal injuries allegedly sustained as a result of petitioners' negligence. Petitioners were served with summons on October 18, 1968, one day short of three years from the filing of the complaint. Petitioners thereupon moved for a dismissal of the action for lack of prosecution pursuant to Code of Civil Procedure, section 583. The motion was supported by the declaration of petitioners' attorney which stated that plaintiff and plaintiff's counsel were aware of petitioners' address, that petitioners were at all times since the filing of the action located at that address and were consistently available for service of process. A declaration in opposition to the motion made by plaintiff's attorney stated that approximately seven months after the date of the filing of the complaint plaintiff moved from San Francisco to Canada; that plaintiff did not inform the declarant of his change of address and left no forwarding address; that declarant endeavored to contact plaintiff but was unable to do so; and that no communication was received from plaintiff from the time he departed for Canada until November 5, 1968.

Following the hearing of the motion an order was made on December 9, 1968 dismissing plaintiff's action. The days later plaintiff noticed a motion for reconsideration of the order dismissing the action for lack of prosecution. This motion was supported by plaintiff's declaration that he had not contacted his attorney after establishing residence in Canada because just prior to his departure from San Francisco he was advised by his attorney that the action could be held in abeyance for a period of three years, and that in reliance on this representation he did not communicate with his attorney or advise him of a forwarding address because he believed it would not be necessary to proceed further in the action until 'shortly after October 19, 1968.' He stated further that he did not contact his attorney to inquire as to the status of the action until November 4, 1968, when plaintiff was in San Francisco on a visit.

The latter motion came on for hearing before a judge other than the judge who had made the order of dismissal. The court thereafter made its order setting aside and vacating the order of dismissal. Petitioners then filed the instant petition for a writ of mandate and an alternative writ of mandate was issued by this court. The basis for the petition is the claim that in making the order vacating and setting aside the previous order of dismissal the court below acted without jurisdiction and abused its discretion.

Initially, we note that a motion for new trial does not lie to secure a reexamination of the decision of a motion (Gray v. Cotton, 174 Cal. 256, 258, 162 P. 1019; Harper v. Hildreth, 99 Cal. 265, 270, 33 P. 1103), and that in the technical sense there is no authority in the code for a motion for reconsideration. The motion to reconsider the decision on a motion has, however, been recognized by the appellate courts in limited situations. Thus appellate courts have always recognized that a court has power, on a subsequent motion, to reconsider its prior decision Denying a similar motion. (Harth v. Ten Eyck, 16 Cal.2d 829, 832--833, 108 P.2d 675; City & County of S.F. v. Muller, 177 Cal.App.2d 600, 603, 2 Cal.Rptr. 383; O'Brien v. City of Santa Monica, 220 Cal.App.2d 67, 70, 33 Cal.Rptr. 770; Dahlin v. Moon, 141 Cal.App.2d 1, 4, 296 P.2d 344; Hover v. MacKenzie, 122 Cal.App.2d 852, 857, 266 P.2d 60; Josephson v. Superior Court etc., 219 Cal.App.2d 354, 358--359, 33 Cal.Rptr. 196; see Bice v. Stevens, 160 Cal.App.2d 222, 225--226, 325 P.2d 244.) In such cases the subsequent motion is considered as a Renewal of the previous motion. (Harth v. Ten Eyck, supra; Bice v. Stevens, supra; Hover v. MacKenzie, supra.) This principle is also expressed in Code of Civil Procedure, section 1008 ¹ permitting the Renewal of a motion after it has been Denied on its merits, but permitting a court to refuse to consider a new motion supported by substantially the same showing as the one denied. (City & County of S.F. v. Muller, supra; Josephson v. Superior Court, supra, 219 Cal.App.2d at p. 359, 33 Cal.Rptr. 196.)

The motion to reconsider has also been recognized by the reviewing courts where it is in the nature of a motion seeking relief under the provisions of Code of Civil Procedure, section 473 ² which provides, in pertinent part, that 'The court may, upon such terms as may be just, relieve a party * * * from a judgment order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. * * *' (See Bergloff v. Reynolds, 181 Cal.App.2d 349, 354--356, 5 Cal.Rptr. 461.) Except for this situation, however, no case or statute has been cited to us or found by our independent research which permits a motion to reconsider the Granting of a motion previously made.

In view of the foregoing we apprehend in the instant case that, since an order of dismissal for lack of prosecution is a final judgment from which an appeal lies (Daley v. County of Butte, 227 Cal.App.2d 380, 388, 38 Cal.Rptr. 693; Chase v. Superior Court etc., 210 Cal.App.2d 872, 875, 27 Cal.Rptr. 383), plaintiff's remedy was by way of an appeal from the order granting the dismissal rather than by a motion for reconsideration, unless the motion for reconsideration can be treated and considered as a motion for relief pursuant to section 473. (See Stephens v. Baker & Baker Roofing Co., 130 Cal.App.2d 765, 773, 280 P.2d 39; Bergloff v. Reynolds, supra, 181 Cal.App.2d 349, 355, 5 Cal.Rptr. 461; and see Key System Transit Lines v. Superior Court, etc., 36 Cal.2d 184, 187--188, 222 P.2d 867.) Here no appeal was taken from the order of dismissal. Plaintiff urges, however, that the motion for reconsideration was one which seeks relief from the judgment of dismissal pursuant to section 473.

An order dismissing an action for lack of prosecution may be set aside pursuant to a motion under section 473 if the motion is timely made and has the necessary factual support, and such motion may be heard by a judge other than the judge who heard the motion to dismiss. (Bergloff v. Reynolds, supra, 181 Cal.App.2d 349, 355--356, 5 Cal.Rptr. 461; Stephens v. Baker & Baker Roofing Co., supra, 130 Cal.App.2d 765, 771--773, 280 P.2d 39.) In Bergloff, a motion to reconsider an order dismissing an action for lack of prosecution was held to be a motion under section 473 which sufficed as the basis of the order vacating the dismissal. Although the memorandum of points and authorities in that case referred only to section 473, and the motion did not specifically refer to mistake, take, inadvertence, surprise or excusable neglect as the basis of the relief sought, the affidavits in support...