Southern Pac. Co. v. Seaboard Mills

• Court: California Court of Appeals
• Writing for the Court: HERNDON; FOX, P. J., and ASHBURN
• Citation: Southern Pac. Co. v. Seaboard Mills, 24 Cal.Rptr. 236, 207 Cal.App.2d 97 (Cal. App. 1962)
• Decision Date: 23 August 1962
• Parties: SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS, a corporation, et al., Defendants and Respondents. SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. George M. FISH et al., Defendants and Respondents. Civ. 25926-25929.

Page 236

24 Cal.Rptr. 236

207 Cal.App.2d 97

SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS, a corporation, et al., Defendants and Respondents.

SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. George M. FISH et al., Defendants and Respondents.

Civ. 25926-25929.

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

Aug. 23, 1962.

Hearing Denied Oct. 17, 1962.

A. T. Suter, Frederick E. Fuhrman, San Francisco, E. D. Yeomans, Walt A. Steiger, John A. Gordon, Los Angeles, for appellant.

Schramm, Raddue & Seed, Edward W. Schramm, Santa Barbara, for respondents.

HERNDON, Justice.

These are appeals by plaintiff in four separate actions from orders and judgments of dismissal made on motion pursuant to section 583, Code of Civil Procedure, and from an order denying a motion to vacate the judgments. The record in each is limited to the clerk's transcript. Each of the actions is based on a claim by appellant for money allegedly refunded in error to respondents. The controversies appear to have arisen as a result of the application to certain goods shipped by respondents over the rail lines of plaintiff of tariff classifications different from those which had been contemplated. The issues of fact and law are substantially identical in each action. A detailed statement of the alleged facts is contained in Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 333 P.2d 133, which reversed a summary judgment previously granted in each of the actions.

The clerk's transcripts reflect that the suits were commenced by the filing of the complaints and issuance of summonses on the following dates: No. 25926, August 20, 1951; No. 25927, October 19, 1951; No. 25928, November 15, 1951; No. 25929, May 27, 1952. For various reasons not material to our decision, no action was taken in these proceedings by mutual consent of the parties for extended periods of time and answers were not filed until June 27, 1957.

Thereafter, proceedings were had upon a motion by respondents for summary judgment and such judgment was entered in their favor on September 19, 1957. This judgment was reversed on appeal and the cause remanded for further proceedings. (Southern Pacific Co. v. Fish, supra.) Remittitur was filed in the trial court on February 18, 1959.

On December 24, 1959, appellant filed a request for admission of facts and a response by respondents was filed January 15, 1960, with certain objections which were overruled on February 4, 1960. On February 26, 1960, appellant filed its Memorandum to Set Cause for Trial in case No. 25928. In June, 1960, a further request for admission of facts and the response thereto was filed. On August 17, 1960, pre-trial conference was noticed for December 16, 1960. On December 27, 1960, the parties stipulated that the actions might be consolidated for trial and pre-trial conference was reset for January 31, 1961. It was held on February 7, 1961, at which time the consolidated cases were set for trial on April 10, 1961. On March 27, 1961, respondents filed a notice to dismiss in each of the four cases, each notice stating that 'said motion will be made upon the ground that said action has not been brought to trial within five years after the filing thereof and will be made and based upon this notice, all of the pleadings, records and papers on file herein and upon the Memorandum of Points and Authorities served and filed herewith.' The memorandum contained only a reference to Code of Civil Procedure, § 583. Appellant filed a memorandum in opposition to the motion on April 10, 1961. An affidavit in opposition, discussed hereafter, also appears in the record. ¹ On April 18, 1961, minute order and written judgment of dismissal were entered. The judgment recites that at the hearing on the motion evidence was introduced by both parties. It states as the basis for the court's order that 'said action has not been brought to trial within five years after the plaintiff filed the same; that the plaintiff has failed for two years after the above-entitled action was commenced to bring said action to trial and has failed diligently to prosecute the said action * * *.'

On April 28, 1961, appellant noticed a motion 'To Vacate Order and Judgment on Motion to Dismiss or in the Alternative to Reconsider said Order and Judgment.' The notice states, in part: 'Said motion will be made upon the ground that said Order and Judgment are void, or in the alternative was made without consideration of facts which were not presented to the Court * * *.' The Memorandum of Points and Authorities cites sections 473 and 663 of the Code of Civil Procedure.

In the various affidavits and memoranda of points and authorities in support of the motion to vacate, the attorney for appellant asserted that he had failed to fully present to the court at the time of the hearing on the motion to dismiss certain evidentiary matters relating to the development of the case after the remittitur. He explained this oversight by stating: 'These facts were not brought to the court's attention in the affidavit prepared and filed in opposition to defendants' motion to dismiss for the reason that said motion was based upon the single ground that the actions had not been brought to trial within five years and the belief that such facts were not pertinent to the motion. The failure to do so may be said to be the result of the mistake, surprise, inadvertence or excusable neglect.' Attached to the affidavits were copies of various correspondence had between the attorneys for the parties following the remittitur and tending to show that due diligence had been exercised in the progress of the case by both parties seeking to reduce the issues to be tried.

After a hearing at which oral and documentary evidence was introduced, the order denying the motion to vacate the judgments was entered on June 30, 1961. Appellant's assignments of error include the sufficiency of the notice of motion to dismiss as well as a number of interesting questions concerning the application of the statutory and judicially created exceptions from the statute to the facts involved in the history of this litigation. However, it appears that consideration of these questions is foreclosed by the following controlling issue.

It is appellant's contention that the actions were brought to trial within five years, and therefore the dismissal requirements of Code of Civil Procedure, § 583, ² relating to the five-year maximum and two-year minimum periods before trial, are inapplicable. The argument is that the summary judgments (entered in favor of respondents and reversed on appeal for further proceedings) were final determinations of the actions and, as such constituted 'trials' within the meaning of section 583. We are persuaded that this argument has merit.

In Smith v. City of Los Angeles, 84 Cal.App.2d 297, 190 P.2d 943, a demurrer to a complaint was sustained without leave to amend and judgment entered dismissing the action. On appeal the judgment was reversed with directions to overrule the demurrer. Thereafter, an answer was filed and the cause set for trial. On the day of the trial, defendants moved to dismiss on the ground that the actions had not been brought to trial within five years from the date of their commencement. The motion was granted and judgment of dismissal entered. On appeal from the judgment of dismissal, it was held that the determination of the issues of law presented by the demurrer and denial of leave to amend constituted a trial as contemplated by Code of Civil Procedure, § 583, and therefore the mandatory provision could not be invoked.

In reaching this decision, the court relied on the definition of 'trial' appearing in the case of Tregambo v. Comanche M. & M. Co., 57 Cal. 501, 505, as follows:

'A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties, it may be considered a trial. (Emphasis added.)' (Smith v. City of Los Angeles, supra, 84 Cal.App.2d pp. 301-302, 190 P.2d 943.)

In Adams v. Superior Court, 52 Cal.2d 867, 345 P.2d 466, an action which rejected the contention that the taking of testimony to show grounds for a continuance was a 'trial' within the meaning of Code of Civil Procedure, § 583, the following definition appears (page 870, 345 P.2d page 469): 'A 'trial' is the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties. [Citations.]' (Emphasis added.)

By the reference to 'pleadings', the latter definition appears somewhat more restrictive than that in the Tregambo case; however, it cites that case as authority. In any event, it is our view that the motion for summary judgment is a pleading and reference is necessarily made to other pleadings in the cause in the determination of the motion.

The court which reversed the summary judgments in the present actions, Southern Pacific Co. v. Fish, supra, 166 Cal.App.2d 353, stated at page 358, 333 P.2d 133, at page 136 that a summary judgment is a proceeding pursuant to section 437c of the Code of Civil Procedure '* * * which insofar as then pertinent read as follows: 'In superior courts * * * when an answer is filed in any kind of action if it is claimed that * * * the action has no merit, on motion * * * supported by affidavit * * * the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.'

"By an unbroken line of decision in this state since the [section's] or...