Schumpert v. Tishman Co.

• Decision Date: 11 February 1988
• Court: California Court of Appeals Court of Appeals
• Parties: William Edward SCHUMPERT, Plaintiff and Appellant, v. TISHMAN COMPANY, a corporation; Western Erectors, a corporation; Doe One Through Doe One Hundred, inclusive, Defendants and Respondents. Civ. B026932.

Page 810

243 Cal.Rptr. 810

198 Cal.App.3d 598

William Edward SCHUMPERT, Plaintiff and Appellant, v. TISHMAN COMPANY, a corporation; Western Erectors, a corporation; Doe One Through Doe One Hundred, inclusive, Defendants and Respondents.

Civ. B026932.

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

Feb. 11, 1988.

John H. Mitchell, Visalia, for plaintiff and appellant.

Smylie & Selman, and John C. Wallace, Los Angeles, for defendants and respondents.

COMPTON, Acting Presiding Justice.

Plaintiff William Schumpert appeals from an order of dismissal entered pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1) ¹ for failure to serve defendants within two years of commencing the action. We affirm.

The relevant facts may be briefly summarized as follows. While working at a construction site on November 30, 1982, plaintiff was injured when heavy winds allegedly caused an unsecured panel of corrugated steel decking to fly loose and strike him on the face and back. On November 1, 1983, he filed a complaint for damages naming Tishman Construction Corporation (Tishman) and Western Erectors as the only two defendants. Plaintiff made no effort to serve either defendant until October 1986, some two years and eleven months after initiating suit. ²

Defendants subsequently moved to dismiss, claiming that the delay in service had adversely affected their ability to marshal evidence and prepare a credible defense. Plaintiff's trial counsel responded that all percipient witnesses were still available and admitted that he himself had caused the delay by inadvertently failing to monitor his files. After hearing argument and taking the matter under submission, the trial court concluded that plaintiff had failed to establish good cause for the belated service and ordered the matter dismissed for want of prosecution. This appeal follows.

In urging us to reverse and remand, plaintiff argues that the trial court abused its discretion by dismissing the action without requiring either defendant to demonstrate that it suffered actual prejudice as a result of the delay. He further asserts that, in any event, it would have been impossible for defendants to make such a showing because of the congested condition of the court's calendar. Neither contention is persuasive.

At the outset, we observe that the issues raised by this appeal are anything but unique. They constitute familiar terrain over which we have traveled on numerous occasions. In Longshore v. Pine (1986) 176 Cal.App.3d 731, 222 Cal.Rptr. 364, we rejected arguments similar to those advanced here and held that a defendant need not make an affirmative showing of prejudice in order to be entitled to a dismissal for the plaintiff's failure to effect service within the statutory period. Today, under the facts of the present case, we reaffirm that holding.

It has been aptly remarked that section 583.420 and the other dismissal-for-delay statutes serve a dual purpose: "[O]ne is effectually the same as that of statutes of limitations--they are both statutes of repose, seeking to discourage stale claims 'to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' [Citations.] Secondly, the dismissal section is designed to compel reasonable diligence in the prosecution of actions, thereby expediting the administration of justice. [Citations.]" (Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 22-23, 222 Cal.Rptr. 364; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 332, 216 Cal.Rptr. 718, 703 P.2d 58; Lopez v. Larson (1979) 91 Cal.App.3d 383, 400, 153 Cal.Rptr. 912.) Balanced against these considerations is, of course, the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds. (Code Civ.Proc., § 583.130; Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.) Although that policy is generally viewed as more compelling than the one seeking to promote prompt prosecution (see Denham v. Superior Court, supra, at p. 566, 86 Cal.Rptr. 65, 468 P.2d 193; Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562, 194 Cal.Rptr. 773, 669 P.2d 9), it will not prevail unless the plaintiff meets his burden of establishing excusable delay. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 347, 228 Cal.Rptr. 504, 721 P.2d 590.)

While it is true that an order granting a motion to dismiss for dilatory prosecution will be more closely scrutinized on review than one denying the motion (Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1013, 165 Cal.Rptr. 524; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 389-390, 38 Cal.Rptr. 693), the trial court nevertheless exercises a wide discretion in ruling on such a motion and its determination will be reversed only upon a showing of manifest abuse of discretion resulting in a miscarriage of justice. ( Blank v. Kirwan, supra, 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 416-417, 134 Cal.Rptr. 402, 556 P.2d 764; Denham v. Superior Court, supra, 2 Cal.3d 557, 563-564, 86 Cal.Rptr. 65, 468 P.2d 193; Longshore v. Pine, supra, 176 Cal.App.3d 731, 736-737, 222 Cal.Rptr. 364; San Ramon Valley Unified School Dist. v. Wheatley-Jacobsen, Inc. (1985) 175 Cal.App.3d 1050, 1053-1054, 221 Cal.Rptr. 342.) " 'The burden is on the party complaining to establish an abuse of discretion....' " ( Denham v. Superior Court, supra, 2 Cal.3d at p. 566, 86 Cal.Rptr. 65, 468 P.2d 193.)

In our case, the trial court determined that the delay in service of the complaint was inexcusable, and we have no basis to conclude otherwise. The declaration of plaintiff's trial counsel provides little justification for the failure to serve either defendant for almost three years after the complaint was filed, and some four years after the accident. Even a cursory review of the record makes it clear that counsel did not act with all reasonable diligence in moving the case forward. The principal explanation for the delay was that the press of other business somehow prevented the complaint from being served. ³ While we are not unmindful of the realities of our legal system and recognize that calendaring errors frequently do occur, counsel for the plaintiff is charged with the specific duty "to keep track of the calendar and the pertinent dates which are crucial to maintenance of his lawsuit...." (Minkin v. Levander (1986) 186 Cal.App.3d 64, 69, 230 Cal.Rptr. 592; see also Corlett v. Gordon, supra, 106 Cal.App.3d 1005, 1014-1015, 165 Cal.Rptr. 524.) Here, plaintiff's attorney expressly admitted that he neglected to examine his file in this matter for nearly three years and did not discover his failure to associate outside counsel until the statutory period was about to expire. Under the circumstances, the trial court correctly found that plaintiff had not made an adequate showing to justify the inordinate delay in service of the complaint. ⁴

Despite his inability to demonstrate excusable delay, plaintiff maintains that he is entitled to a reversal because defendants made no showing of prejudice other than the failure of memories that occur in any case as it proceeds to trial. ⁵ Defendants assert, however, that they may rely upon the principle that prejudice is inherent in protracted delay and will be presumed when such delay is unjustified.

Although the issue raised here has received considerable attention in recent years, the appellate courts of this state have remained divided as to whether a discretionary dismissal must be supported by an affirmative showing of prejudice. Foremost among the cases advancing the notion that actual prejudice must always be shown is Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 213 Cal.Rptr. 712, where the court held that the sanction of dismissal may not be imposed absent some proof that a plaintiff's delay has constrained the defendant's ability to defend against the allegations of the lawsuit. ( Id, at p. 1030, 213 Cal.Rptr. 712.) Hurtado and its progeny (see Troupe v. Courtney (1985) 169 Cal.App.3d 930, 215 Cal.Rptr. 703; Luti v. Graco, Inc. (1985) 170 Cal.App.3d 228, 215 Cal.Rptr. 902), were impliedly overruled, however, when the Supreme Court in Blank v. Kirwan, supra, 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58, affirmed a discretionary dismissal despite no showing of actual prejudice. The plaintiff in Blank had done virtually nothing to prosecute his action for nearly three and a half years. Responding to the argument that the defendants had not been prejudiced, the court reasoned: "[E]ven if they have not, '[t]he legislative policy underlying [former] section 583 is not grounded solely in prejudice caused by delay to a defendant. Its purpose, too, is to expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.' (Sprajc v. Scandinavian Airlines System, Inc. (1966) 240 Cal.App.2d 935, 938 ; accord, Lopez v. Larson (1979) 91 Cal.App.3d 383, 400 ; Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 22-23 .)" (Id. at p. 332, 216 Cal.Rptr. 718, 703 P.2d 58.)

We note here that each of the cases cited by the Supreme Court in support of its holding expressly rejected the claim that prejudice must be shown where there has been an unjustified delay in service of the summons and complaint. Among those cases, Lopez v. Larson, supra, 91 Cal.App.3d 383, 153 Cal.Rptr. 912 is of particular significance because of its statement that delay in effecting service constitutes a particularly pernicious form of delay. The court pointedly observed that without awareness of a pending suit, the passage of time may effectively preclude a defendant from "making discovery, interviewing witnesses and preserving evidence essential to his defense." ( Id....