Westinghouse Electric Corp. v. Superior Court

CourtCalifornia Court of Appeals
Citation143 Cal.App.3d 95,191 Cal.Rptr. 549
PartiesWESTINGHOUSE ELECTRIC CORPORATION et al., Petitioners, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; THE TRAVELERS, Real Party in Interest. Civ. 7611. F001644.
Decision Date18 May 1983
OPINION

HAMLIN, Associate Justice.

Petitioners, Westinghouse Electric Corporation and Westinghouse Electric Supply Company ("Westinghouse") seek a writ of mandate directing respondent court to render its order pursuant to Code of Civil Procedure section 583, subdivision (b), 1 dismissing Kern County Superior Court case No. 147035, a complaint for damages entitled "The Travelers v. Westinghouse Electric Corporation et al." Amicus curiae briefs have been filed in support of the petition by Basler Electric Company, Sprague Electric Company, Procon, Inc. and The Signal Companies, Inc. ("Basler", "Sprague", "Procon/Signal"), all of which companies were brought into the superior court action by way of cross-complaints for indemnity and contribution.

FACTS

Real party in interest, The Travelers ("Travelers"), filed its complaint for damages in the Kern County Superior Court on May 9, 1977. The complaint alleged that Travelers' assignor was utilizing a "capacitor trip device" which it had obtained from Westinghouse. During use, the device failed to trip the circuit breaker to the main motor control of the hydrocracker unit, causing damage to the equipment approximating $176,000 and damage resulting from loss of income (due to a work stoppage) of $129,000. Westinghouse answered the complaint on July 15, 1977. On July 17, 1978, Travelers filed its first at-issue memorandum, and the case was set for settlement conference on November 30, 1978. That settlement conference was continued at the request of Westinghouse to February 26, 1979, to permit Westinghouse to file a cross-complaint against Basler. Travelers agreed to a further continuance of the settlement conference to May 4, 1979, and on that date, the trial was continued by stipulation of the parties to February 25, 1980. Some of the continuing activity occurring during this period is discussed below.

In July 1979 the parties were attempting to complete arrangements for an independent laboratory examination of the capacitor trip device. They agreed on July 31 and August 1, 1979, for such examination, but those arrangements had to be canceled because of a strike at the Westinghouse plant.

On November 30, 1979, Basler cross-complained against Sprague, and on December 11, 1979, Travelers stipulated that Westinghouse could amend its cross-complaint to bring in other parties, including Sprague and Procon/Signal. On December 28, 1979, Travelers agreed to a continuance of the February 25, 1980, trial date in view of the pending joinder of additional parties by way of cross-complaint, and Travelers requested that a new trial date be agreed upon as soon as possible. Then Travelers contacted the county clerk for a new trial date and was advised that the trial could be reset by stipulation after May 4, 1980.

Travelers filed its second at-issue memorandum on July 21, 1980; and on September 12, 1980, the county clerk advised Travelers the matter was not at issue because there was no answer to an amended cross-complaint.

Following denial of certain motions to strike made by Westinghouse and Basler, Travelers attempted to clarify the clerk's position that the case was not at issue. The clarification prompted Travelers to circulate, on about April 10, 1981, a stipulation to all parties that the case was at issue. That stipulation was signed by the attorney for Sprague on June 29, 1981, by Westinghouse and Basler on July 1, 1981, and by Procon/Signal on July 9, 1981. No explanation was offered by defendants to explain the three-month delay in signing this stipulation. On July 17, 1981, Travelers forwarded that stipulation to the county clerk requesting that the matter be placed on the civil active list; however, the county clerk advised that a new at-issue memorandum would be required. Travelers filed a new at-issue memorandum on August 5, 1981.

Despite the stipulation of July 1981, in November Travelers received a notice from Procon/Signal that they were circulating a stipulation to permit them to file a cross-complaint against Westinghouse, Basler and Sprague. All parties, including Westinghouse, had agreed to sign that stipulation. Travelers did not receive the stipulation until February 9, 1982, and at that time signed the stipulation and forwarded it to Procon/Signal. By then, Sprague had already answered that cross-complaint, and Basler answered the Procon/Signal cross-complaint on March 10, 1982. Within five days thereafter, Travelers received a copy of Westinghouse's answer to the Procon/Signal cross-complaint and a copy of the Sprague answer. On March 24, 1982, Travelers filed a fourth at-issue memorandum. A settlement conference was scheduled for August 2, 1982.

On May 28, 1982, the five years within which Travelers was statutorily required to bring the case to trial pursuant to section 583, subdivision (b), expired. (This date included an additional 19 days, representing time in June 1978 when the case was out of the superior court jurisdiction because of a pending appeal.)

Before the settlement conference scheduled on August 2, 1982, all parties submitted settlement conference statements. Westinghouse's statement included an estimate that discovery would taken an additional 60 to 90 days to complete. At the settlement conference, all parties became aware that the five-year period had expired some two months previously. Thereafter, Westinghouse filed a notice of motion to dismiss for failure to prosecute, pursuant to section 583, subdivision (b). In due course the motion was heard and denied. The instant petition followed, challenging the decision of respondent court as unreasonable, arbitrary and a prejudicial abuse of discretion in that section 583, subdivision (b), imposes a mandatory legal duty upon respondent court to dismiss the action once the five-year statute has expired. Incident to the filing of that petition, this court stayed the commencement of trial during the pendency of this proceeding or until further order of this court.

Initially, we note that mandamus is available to review the denial of a motion to dismiss made pursuant to section 583, subdivision (b). In McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 530, 105 Cal.Rptr. 330, 503 P.2d 1338, the Supreme Court stated:

"Preliminarily we note that since no direct appeal lies from the denial of a motion to dismiss, an appeal from the judgment after a trial is an inadequate remedy when the motion is meritorious. Either a writ of mandate to compel dismissal or a writ of prohibition to restrain the trial is a proper remedy to enforce the trial court's duty to dismiss pursuant to section 583, subdivision (b). [Citations omitted.]"

Because the duties of a court are primarily judicial in nature, requiring some exercise of discretion (as opposed to purely ministerial duties), and since the exercise of discretion cannot be controlled, mandamus must usually issue against the lower court on the basis of controlling abuse of discretion or compelling the exercise of discretion in the first instance. (Cal.Civil Writs (Cont.Ed.Bar 1970) § 528, p. 82.)

Our Supreme Court defined abuse of judicial discretion in State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432, 304 P.2d 13, as follows.

"Mandate lies to control judicial discretion when that discretion has been abused. [Citations.] 'In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered.' [Citation.]"

This definition has been consistently followed by the Courts of Appeal (see, e.g., Bakkebo v. Municipal Court (1981) 124 Cal.App.3d 229, 177 Cal.Rptr. 239; Louie Queriolo Trucking, Inc. v. Superior Court (1967) 252 Cal.App.2d 194, 60 Cal.Rptr. 389). The Third District Court of Appeal has added that, "[a]buse of discretion is arbitrary determination, capriciousness or 'whimsical thinking.' " (City of Fresno v. California Highway Com. (1981) 118 Cal.App.3d 687, 700, 173 Cal.Rptr. 671.)

DISCUSSION

Section 583, subdivision (b), provides:

"(b) Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended."

The facts stated above are not in dispute. All parties--Westinghouse, Travelers, and all amici--agree that the five years within which Travelers could bring its complaint for damages to trial expired on May 28, 1982. Counsel for Travelers acknowledged he mistakenly believed the five years would not expire until the spring of 1983, a mistake of one year. For that reason, Travelers failed to move to specially set this case for trial between the time of filing its fourth and final at-issue memorandum and the expiration of the five-year period. By its decision, in addition to certain factual findings, the trial court found (1) that nearly all the delay...

To continue reading

Request your trial
17 cases
  • Seto v. Szeto
    • United States
    • California Court of Appeals Court of Appeals
    • December 12, 2022
  • Barrington v. A. H. Robins Co.
    • United States
    • California Supreme Court
    • July 29, 1985
    ... ... L.A. 31939 ... Supreme Court of California, ... July 29, 1985 ...         [39 ... v. Superior Court (1979) 90 Cal.App.3d 342, 153 Cal.Rptr. 366. In ... former section 581a, subdivision (f) 5 (see Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1256, 207 l.Rptr. 241; Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, ... ...
  • Minkin v. Levander
    • United States
    • California Court of Appeals Court of Appeals
    • September 30, 1986
    ... ... Court of Appeal, Second District, Division 2, California ... (Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d ... 546, 673 P.2d 216; see also Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, ... ...
  • Campanella v. Takaoka
    • United States
    • California Court of Appeals Court of Appeals
    • September 28, 1984
    ... ... No. B001298 ... Court of Appeal, Second District, Division 7, California ... (Moran v. Superior Court (1983) 35 Cal.3d 229, 237-239, 197 Cal.Rptr. 546, 673 ... 546, 673 P.2d 216; see e.g., Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT