Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court

• Decision Date: 24 January 1990
• Docket Number: MEMORIAL-MINERS,No. C006496,C006496
• Citation: 217 Cal.App.3d 464,266 Cal.Rptr. 50
• Court: California Court of Appeals Court of Appeals
• Parties: SIERRA NEVADAHOSPITAL, INC., Petitioner, v. SUPERIOR COURT of the County of Sacramento, Respondent, Diane M. HUDSON and Arthur Hudson, Real Parties in Interest.

Page 50

266 Cal.Rptr. 50

217 Cal.App.3d 464

SIERRA NEVADA MEMORIAL-MINERS HOSPITAL, INC., Petitioner, v. SUPERIOR COURT of the County of Sacramento, Respondent, Diane M. HUDSON and Arthur Hudson, Real Parties in Interest.

No. C006496.

Court of Appeal, Third District, California.

Jan. 24, 1990.

Weintraub Genshlea Hardy Erich & Brown and John Quincy Brown, Jr., Keith D. Chidlaw, Sacramento, for petitioner.

No appearance for respondent.

Rummonds & Mair and James S. Rummonds, Sally A. Williams, Aptos, for real parties in interest.

BLEASE, Acting Presiding Justice.

This matter arises on a petition by defendant hospital for a writ of mandate overturning the denial of its motion to dismiss a medical malpractice action brought by real parties in interest (plaintiffs) for failure to bring it to trial within five years as required by Code of Civil Procedure section 583.310. ¹

The failure was due to a computational error by plaintiffs' law firm in calendaring the case for timely action on its part. Petitioner (defendant hospital) moved for dismissal of the action under section 583.310. The trial court denied the motion on the ground that the five years was tolled for 77 days. The court reasoned that "[b]ringing the action to trial, ... was impossible, impracticable, or futile" under subdivision (c) of section 583.340 because the only experienced trial attorney in the firm was disabled for that accumulated period due to three episodes of surgery and convalescence during the five year period.

We will grant the petition because the failure of plaintiffs' law firm to calendar the case in a timely manner had nothing to do with counsel's physical disabilities. We decline to read section 583.340 as an open-ended sick leave program for counsel.

FACTS AND PROCEDURAL BACKGROUND

The complaint was filed in propria persona. It alleges in generic terms that defendant hospital is liable for damages for medical malpractice in the treatment of plaintiff Diane Hudson on January 28, 1983, and for resulting loss of consortium to her husband, Arthur. It was not served on defendant hospital until December 9, 1986, and was answered the next month. Although there was no evidence submitted on the point, plaintiffs asserted in their memorandum of points and authorities that the lawyer who prepared the complaint "[o]ne year later ... declined to accept plaintiffs' case." They also asserted in that memorandum that they left the file "with a second attorney, who reviewed it and kept it for one year." On February 2, 1987, plaintiffs substituted the firm of Rummonds & Mair as counsel of record.

On April 29, 1988, plaintiffs propounded their first and only set of interrogatories, which were answered on June 7. Defendant hospital propounded its first and only set of interrogatories on June 17, 1988, and these were answered on August 22. On November 21, 1988, plaintiffs propounded their first and only set of requests for production of documents, to which defendant hospital responded on December 21.

In early 1987, the firm of Rummonds & Mair consisted of two partners, one associate, and two "contract" attorneys. In December 1987 Rummonds's partner departed. One of the contract attorneys, Sally Williams, was assigned to work on the discovery and preparation of this case. Williams also arranged review of the case by several medical consultants. Williams averred that these consultants told her "that the nature of plaintiff Diane Hudson's injury has required very sophisticated medical testing and evaluation." She also averred that Diane Hudson had been difficult to communicate with because of her injuries, which had required an extension Williams gave the following explanation of the failure to seek a trial date prior to lapse of the five year period. "During the time that I was performing services on this file, I mistakenly referred to the date posted on the file label as the date the complaint was filed. The date on the label is December 9, 1986 and is the date the complaint was served. [p] ... During the last 7 months, Mrs. Hudson's file has been in custody of consultants, and I was precluded from noticing my mistake, until I was ready to fill out the At Issue Memorandum served January 27, 1989."

of time to answer defendant hospital's interrogatories.

On October 14, 1986, Rummonds became lead counsel in a trial in Monterey County Superior Court, with an estimated trial time of three to nine months. Other than a six-month recess, however, this trial continued through March 1, 1989.

On August 5, 1987, Rummonds underwent surgery for a ruptured colon, which left him partially incapacitated for a period of 30 days. On October 9, 1987, Rummonds underwent a second surgery, which again required a 30-day recuperation period. In November, 1988 ² Rummonds underwent a third surgery, this time requiring approximately two weeks of recuperation. During these periods, the Monterey County trial was recessed.

Five years and one day after filing the complaint, plaintiffs served defendant hospital with an at issue memorandum. On February 6, defendant hospital filed a motion to dismiss, which was heard on March 10. After the court denied the motion in an order filed March 20, 1989, defendant hospital petitioned this court for a writ of mandate directing that the motion be granted.

DISCUSSION

As related, the reason plaintiffs missed the five year date for bringing an action to trial was an error in the calculation of the statutory deadline for bringing the action to trial which occurred because a counsel for plaintiffs' law firm mistakenly referred to the date posted on the file label as the date the complaint was filed. Notwithstanding this admitted reason for the failure, the trial court concluded that the statute had been tolled for 77 days due to the period of disability attributable to plaintiffs' counsel Rummonds's surgery and convalescence. It relied upon Him v. Superior Court (1986) 184 Cal.App.3d 35, 228 Cal.Rptr. 839, in which the court of appeal held that the five-year period had been tolled for 42 days due to counsel's illness. As appears, this case is distinguishable and there is no basis under the governing statutes for tolling the five year dismissal period on the ground of counsel's illness.

The tolling provision, section 583.340, provides that in computing the five year period "there shall be excluded the time during which any of the following conditions exist[ ]: [p] (a) The jurisdiction of the court to try the action was suspended. [p] (b) Prosecution or trial of the action was stayed or enjoined. [p] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." The question is whether the period of Rummonds's surgery and convalescence qualifies for exclusion under subdivision (c). As appears, the answer is no.

Section 583.340 was added to the code in 1984 without change as proposed by the California Law Revision Commission. (See 17 Cal.Law Revision Com.Rep. (1984) 905, 935.) For that reason the report of the commission is entitled to substantial weight in construing the statute, particularly since the Commission's comment which accompanied the proposed statute through the legislative process is brief. (See, e.g., Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-250, 66 Cal.Rptr. 20, 437 P.2d 508.)

The comment says in material part: "Subdivision (c) [of section 583.340] codifies the case law 'impossible, impractical, or futile' standard. The provisions of subdivision (c) must be interpreted liberally, consistent with the policy favoring trial on the merits. See Section 583.130 (policy statement). Contrast Section 583.240 and Comment thereto (strict construction of excuse for failure to serve within prescribed time). This difference in treatment recognizes that bringing an action to trial, unlike service, may be impossible, impracticable, or futile due to factors not reasonably within the control of the plaintiff. [p] Under Section 583.340 the time within which an action must be brought to trial is tolled for the period of the excuse, regardless whether a reasonable time remained at the end of the period of the excuse to bring the action to trial. This overrules cases such as State of California v. Superior Court, 98 Cal.App.3d 643, 159 Cal.Rptr. 650 (1979), and Brown v. Superior Court, 62 Cal.App.3d 197, 132 Cal.Rptr. 916 (1976)." (17 Cal. Law Revision Com.Rep., supra, at p. 936.)

The law prior to the 1984 enactment provided for mandatory dismissal after five years without statutory exception except that the time period was not to include the time during which the defendant was not amenable to the process of the court or the jurisdiction of the court to try the action was suspended. (Former § 583, Stats.1982, ch. 1402.) However, case law developed implied exceptions for circumstances in which "the party is unable, from causes beyond his control, to bring the case to trial[.]" (Christin v. Superior Court (1937) 9 Cal.2d 526, 532-533, 71 P.2d 205, upholding denial of dismissal where a "substantial part" (almost four years) of the five year period was consumed in an appeal of an erroneous venue ruling.) The exceptions went beyond strict impossibility to circumstances in which "proceeding to trial would be both impracticable and futile." (Id. at p. 533, 71 P.2d 205.) As will appear from the language of section 583.340, subdivision (c) and the Commission comment these standards were codified in the new enactment and hence the case law from which it is derived supplies meaning for its language.

However, it appears from the Law Revision Commission comment that the new statute was drafted to effect one change in the prior law. Under the prior case law the claim that the statute should be tolled because of an inability occurring during the five years was rejected if there remained time to bring the action to trial after the end of the period of claimed inability. Thus, in Brown, supra, the...