San Ramon Valley Unified School Dist. v. Wheatley-Jacobsen, Inc.

• Decision Date: 19 December 1985
• Docket Number: WHEATLEY-JACOBSE,INC
• Citation: 221 Cal.Rptr. 342,175 Cal.App.3d 1050
• Court: California Court of Appeals Court of Appeals
• Parties: , 29 Ed. Law Rep. 290 SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v.et al., Defendants and Respondents. A021475.

Page 342

221 Cal.Rptr. 342

175 Cal.App.3d 1050, 29 Ed. Law Rep. 290

SAN RAMON VALLEY UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. WHEATLEY-JACOBSEN, INC. et al., Defendants and Respondents.

A021475.

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

Dec. 19, 1985.

Robert Godino, Celia Ruiz, Breon, Galgani, Godino & O'Donnell, San Francisco, for plaintiff and appellant.

Daniel J. McNamara, John Fioretta, McNamara, Houston, Dodge, McClure & Ney, Walnut Creek, Joel Shawn, Richard

M. Marx, Law Offices of Joel Shawn, San Francisco, for defendants and respondents.

ANDERSON, Presiding Justice.

FACTS

On December 6, 1982, the superior court for Contra Costa County granted respondent Wheatley-Jacobsen, Inc.'s motion to dismiss the case brought against it by appellant San Ramon Valley Unified School District. Appellant contends that the order of dismissal should be reversed because the trial court abused its discretion. We reject this contention and affirm the judgment.

On December 30, 1977, appellant filed a complaint against the general contractor (Wheatley-Jacobsen, Inc., hereafter respondents), architects, soil engineers and surety company who were involved in the construction of a high school gymnasium for appellant. The complaint alleged breach of contract for deficient architectural work, deficient engineering, and deficient construction and sought damages and declaratory relief.

On March 20, 1978, the defendant architects filed a motion asking the court to order arbitration and to stay the proceedings against them. On April 11, 1978, the trial court ordered arbitration between appellant and defendant architects and stayed the proceedings as to the architects. The arbitration proceedings did not commence until June 1982. The arbitration resulted in a settlement between appellant and defendant architects on November 8, 1982. The only action appellant took in prosecuting its claim against the remaining defendants was one request to produce documents and four depositions.

On November 9, 1982, more than four years and ten months after filing the original complaint, appellant moved to specially set the case for trial. On November 17, 1982, respondent filed a motion pursuant to Code of Civil Procedure section 583, subdivision (a), ¹ to dismiss the case for failure to bring the action to trial within two years. On November 23, 1982, the trial court granted the motion to dismiss, rendering the motion to specially set the case for trial moot. Appellant then filed its notice of appeal.

DISCUSSION

Because appellant moved to specially set the case for trial within five years of filing the complaint, we are not concerned here with the mandatory dismissal provision of section 583, subdivision (b). The only issue on appeal is whether the trial court abused its discretion in dismissing appellant's action for want of prosecution pursuant to section 583, subdivision (a). Before deciding this issue we must first determine the level of appellate scrutiny to be applied in reviewing a trial court's order of dismissal made pursuant to section 583, subdivision (a).

In the 1983 case of Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 194 Cal.Rptr. 773, 669 P.2d 9, the Supreme Court discussed the standards that apply in reviewing motions to specially set a case for trial and motions to dismiss for lack of prosecution. The high court, citing Beswick v. Palo Verde Hospital Assn. (1961), 188 Cal.App.2d 254, 10 Cal.Rptr. 314, held that the action of a court in passing upon a motion for early and preferential trial setting " '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." ' " (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561, 194 Cal.Rptr. 773, 669 P.2d 9, emphasis added, original emphasis omitted.) We read the last part of this sentence to mean that an appellate court should give the trial court's ruling on these motions substantial deference.

A different standard of review was recently enunciated by the Fourth Appellate District in Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 213 Cal.Rptr. 712, review denied August 29, 1985. The court in Hurtado opined that the abuse of discretion standard is "virtually useless as an analytical tool." (At p. 1022, 213 Cal.Rptr. 712.) The court went on to say that the standard refers to "the amount of deference which appellate courts accord to trial court determinations." (Ibid.) The court concluded that an appellate court is in just as good a position as the trial court to review a section 583, subdivision (a), motion to dismiss and therefore the appellate court should not give deference to the trial court's ruling, but instead should exercise "plenary appellate scrutiny." (Id., at pp. 1026-1027, 213 Cal.Rptr. 712.) The court based its conclusion on the fact that a section 583 motion is based in part on declarations that are equally available to both the trial and appellate courts and the premise that in the usual case there is no "serious factual controversy." (Id., at p. 1026, 213 Cal.Rptr. 712.)

We believe that the level of appellate scrutiny that the Hurtado court applied and set forth as controlling in the review of decisions on section 583, subdivision (a), motions is inconsistent with the standard of review enunciated by the Supreme Court in the Sunshine Meat case. We read the holding of Sunshine Meat to mandate our deference to the trial court's ruling on this motion. When faced with a conflict in authority between an appellate court decision and a Supreme Court decision we are bound to follow the precedent set by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Accordingly, we cannot reverse the trial court's decision to grant respondents' section 583, subdivision (a), motion to dismiss unless we determine that there was a "manifest abuse of discretion." (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 561, 194 Cal.Rptr. 773, 669 P.2d 9, emphasis added; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.

Turning to the ruling of the superior court granting respondents' motion to dismiss, we note that the California Rules of Court set forth the factors which the trial court must consider when ruling on a section 583, subdivision (a), motion. ² Appellant contends that "[a] review of the record filed herein amply reveals that the trial court failed to adequately consider these mandatory factors or make an adequate record on this point." Contrary to the implication of appellant's argument, the California Rules of Court do "not require the court to designate the basis for its decision orally or in writing. Nor does it require the court to recite that it considered all relevant matters or each of the listed factors." (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d at p. 562, 194 Cal.Rptr. 773, 669 P.2d 9.) "Moreover, 'it is presumed that the court followed the law.... ' "A judgment ... of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, ..." ' [Citation.] The mere fact that the court did not explicitly refer to rule [373(e) ], when the statute contains no such requirement does not support the conclusion that it was ignored." (Id., at p. 563, 194 Cal.Rptr. 773, 669 P.2d 9, original emphasis.)

Here, as in Sunshine Meat, the record supports the trial court's decision. The declarations established that over a four-year ten-month period, the only pretrial discovery that appellant pursued with respect to the nonarchitect defendants was one request to produce documents and four depositions. The fact that appellant was participating in arbitration proceedings with the architects does not excuse its lack of diligence in prosecuting its case against the other defendants. Given the nature and complexity of the case, it would have been unjust to require respondents to prepare for trial in less than two months when appellant had the benefit of information learned through the arbitration proceedings to which respondents were neither invited, nor about which were they briefed. While appellant is correct in asserting that the trial court could have required appellant to fully disclose all information regarding the case to respondents as a condition of denying the 583, subdivision (a), motion, the prejudice in forcing respondents to trial on such quick and unexpected notice would still exist. Moreover, there is ample evidence in the record to support the trial court's ruling, ³ and thus appellant has failed to affirmatively show error.

In addition to the factors listed in California Rules of Court, rule 373(e), recent cases have also considered both the prejudice to the defendant that results from the plaintiff's failure to diligently prosecute the action and any excuse offered by the plaintiff to explain his lack of diligence. (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d 554, 194 Cal.Rptr. 773, 669 P.2d 9; Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 134 Cal.Rptr. 402, 556 P.2d 764; Denham v. Superior Court (1970) 2 Cal.3d 557, 86 Cal.Rptr. 65, 468 P.2d 193.) Because of the conflict between the underlying policy of section 583, subdivision (a), to promote due diligence on the part of the plaintiff and the policy favoring resolution of disputes by a trial on the merits, it is not clear which, if any, party has the burden of proof on a section 583, subdivision (a), motion.

In 1970 ...