Standard Oil Co. v. Superior Court

• Decision Date: 14 September 1976
• Citation: 132 Cal.Rptr. 761,61 Cal.App.3d 852
• Court: California Court of Appeals Court of Appeals
• Parties: STANDARD OIL COMPANY OF CALIFORNIA, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Sandra Lee CARTT, on behalf of herself and those similarly situated, Real Party in Interest. Civ. 48270.

Page 761

132 Cal.Rptr. 761

61 Cal.App.3d 852

STANDARD OIL COMPANY OF CALIFORNIA, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Sandra Lee CARTT, on behalf of herself and those similarly situated, Real Party in Interest.

Civ. 48270.

Court of Appeal, Second District, Division 5, California.

Sept. 14, 1976.

As Modified on Denial of Rehearing Oct. 1, 1976.

Hearing Denied Dec. 2, 1976.

Pillsbury, Madison & Sutro, Noble K. Gregory, C. Douglas Floyd, Michael H. Salinsky, San Francisco, and Lawler, Felix & Hall, Thomas E. Workman, Jr., J. Richard Morrissey, Bernard E. LeSage, Los Angeles, for petitioner

Hecht & Diamond, Roger Jon Diamond, Pacific Palisades, for real party in interest.

No appearance by respondent.

KAUS, Presiding Justice.

This is the second time that Cartt v. Standard Oil, a consumer class action pending in the respondent court, has been before us. In Cartt v. Superior Court, 50 Cal.App.3d 960, 124 Cal.Rptr. 376, we set aside trial court orders concerning notice to plaintiff's class and, in substance, ordered the trial court to fashion a form of notice likely to reach enough class members to preserve the integrity of the class action process.

After that decision, in November 1975, the trial court ordered notice by a single publication in 'one of the news sections' of 36 newspapers in the Southern California area.

Trial was set for January 7, 1976, five years, eight months and 18 days after the complaint was filed. The trial court order involved in the first writ matter had been made after hearings on February 3, February 6 and February 18, 1975. The January 7, 1976 trial date was set on the assumption--not shared by Standard--that the previous proceedings in this court tolled the running of the five-year statute as of February 3, 1975. If so, a trial date of January 7, 1976 would have been within the five-year period.

Defendant Standard Oil disagreed that time was tolled as of February 3. On December 24, 1975, it moved to vacate the trial date and for an order dismissing the action under Code of Civil Procedure section 583, subdivision (b). Its theory was and is that time was tolled no earlier than February 18, 1975--the date of the order reviewed in Cartt v. Superior Court. Actually, Standard maintains that time was not tolled until March 13, 1975 when we granted a stay. (See Cartt v. Superior Court, supra, 50 Cal.App.3d 960, 963, fn. 1, 124 Cal.Rptr. 376.) It does not press the point, however, since even if the relevant date is February 18, 1975, the five-year limit was exceeded by about two weeks. The arithmetic is explained below. ¹

Since the motion could not be heard until late in January 1976--after the scheduled trial date--the parties stipulated that time was tolled from January 7, 1976, the scheduled trial date, until the 60th day after the final determination of defendant's motion to dismiss.

On January 19, 1976, the trial court denied Standard's motion to dismiss, finding that 'subsequent events show that it was impracticable and futile to go to trial by reason of substantial and unnecessary expense, which situation was engendered by the court order of February 3, 1975, and that plaintiff's lack of diligence in bringing the action to trial does not outweigh the impracticability and futility of trying the Defendant Standard Oil then filed this writ petition asking this court to order the trial court to dismiss the action. ³ This time plaintiff Sandra Cartt is the real party in interest. We granted an order to show cause.

case as determined by the subsequent ruling of the appellate court and the trial court upon remand.' ²

FACTS

The class action complaint was filed on April 20, 1970. Although the exact number of class members is unknown, plaintiff's estimate of 700,000 persons is as good as any.

Substantial activity in the form of discovery took place between April 1970 and February 1972. However, an informal class action conference was not held until August 1973, and it was not until August 1974--when the action was over 51 months old--that plaintiff noticed the hearing necessary to determine whether the matter was appropriate for class action disposition. On January 17, 1975, the court ruled that the case was maintainable as a class action and directed that the parties submit memoranda and evidence concerning the issue of notice to the class.

We now reach the critical period in this case, February 3 through February 18, 1975. On February 3, 1975, the court ordered that notice be given by first class mail to approximately 700,000 current Standard Oil credit card holders residing in Southern California. At the February 3 hearing, plaintiff's attorneys proposed notice by publication under Government Code section 6064, or, if notice was to be by mail, that it be paid for at least in part by defendant. (See Cartt v. Superior Court, supra, 50 Cal.App.3d 960, 965, 124 Cal.Rptr. 376.) The court rejected these proposals, but agreed to consider a means of personal notice other than the mail on February 6.

On February 6, the court denied plaintiff's motion to modify the February 3 order, but set the matter for February 18 'for further discussion on alternatives to (the) present order for giving notice to the class.' The court commented at the February 6 hearing that it was 'also taken by the suggestion of plaintiff's counsel that the class may be redefined and notice be given by some means other than mail itself.'

Finally, on February 18, after more discussion, the court ruled as follows: '(T)he order of February 3, 1975 requiring personal service of notice of pendency to be given by mail individually addressed and posted will not be modified. However, the Court modifies the order of February 3, 1975 to provide that notice will be given to credit card holders by first class or third class mail individually addressed and posted.'

Plaintiff's writ petition was filed on February 26, 1975.

Facts will be added in the discussion.

DISCUSSION

The parties agree on the general rule: '(U)nless an action is brought to trial within five years after it has been filed, the action must be dismissed upon motion of the defendant. (Citation.) Numerous decisions over the years have established 'certain implied exceptions where it would be impossible, impracticable or futile due to causes beyond a party's control to bring an action to trial during the five-year period.' (Citation.)' (Reserve Ins. Co. v. Universal Underwriters Ins., 51 Cal.App.3d 57, 61, 123 Cal.Rptr. 763, 765.)

The decisions have not built a fence around the concepts of impossibility, impracticability or futility. (E.g., General Motors Corp. v. Superior Court, 65 Cal.2d 88, 96--97, 52 Cal.Rptr. 460, 416 P.2d 492; Rose v. Knapp, 38 Cal.2d 114, 117--118, 237 P.2d 981; McRoberts v. Gorham, 18 Cal.App.3d 1040, 1045, 96 Cal.Rptr. 427; Bosworth v. Superior Court, 143 Cal.App.2d 775, 779--780, 300 P.2d 155; see also, Brunzell Constr. Co. v. Wagner, 2 Cal.3d 545, 549--551, 86 Cal.Rptr. 297, 468 P.2d 553.) ⁴ Nevertheless, it has never been held or even hinted that time stands still while the parties are going through the necessary motions of getting a case ready for trial.

On the contrary, it is quite firmly established that 'the time consumed by the delay caused by ordinary incidents of proceedings like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar or securing a jury trial are not within the contemplation of the implied exceptions for exclusion from a computation of the applicable period. (Citations.) '(T)he duty rests upon a plaintiff at every stage of the proceedings to use due diligence to expedite his case to a final determination.' (Citations.)' (Fannin Corp. v. Superior Court, 36 Cal.App.3d 745, 750, 111 Cal.Rptr. 920, 923; see also, King v. State of California, 11 Cal.App.3d 307, 310, 89 Cal.Rptr. 715.) In a class action the 'ordinary incidents of proceedings' include class action certification and notice to the class. (Massey v. Bank of America, 56 Cal.App.3d 29, 32--33, 128 Cal.Rptr. 144.)

Plaintiff's major contention is that the erroneous February 3 order made it impossible, impracticable, or futile to proceed to trial. The chief problem with this contention is that it defies the record, which establishes that the February 3 order was tentative.

Plaintiff asserts that '(e)veryone treated the February 3rd order as final'; in fact, no one did. Most important, plaintiff, who had the option of standing on her legal position asserted at the February 3 hearing, declined to accept the court's ruling as final. ⁵

On February 3, the court, having rejected plaintiff's theories of publication in legal newspapers or of notice paid by defendant, asked plaintiff's attorney if he could prepare the form of notice by February 6. The attorney said: 'Your Honor, I'm thinking out loud now as far as the court's ruling on the cost of notice is concerned. If plaintiff is going to seek a writ . . ., I'm wondering whether it is appropriate now to go into this particular form. It may become moot, because I doubt very much whether the plaintiff can afford to pay for this cost, being a school-teacher, but I'm also concerned about the 5-year statute and whether a writ would stay the 5-year statute.'

The court recognized plaintiff's 'problems in connection with the 5-year statute,' and offered to accept a 'suggestion concerning the time when you wish' to submit the proposed form of notice, realizing that 'you may wish to . . . seek a writ before that day.'

Plaintiff's attorney, however, agreed to 'have something prepared' by February 6.

After further discussion, counsel said: '(W)ith respect to the ruling on the cost, does the court understand that if the court's ruling stands on costs that this action may very well be dismissed because the plaintiff cannot afford to pay for that cost? THE COURT: Yes, I understand that. ...