Wilson v. Sunshine Meat & Liquor Co.

• Decision Date: 08 September 1983
• Court: California Supreme Court
• Parties: , 669 P.2d 9 David W. WILSON, Plaintiff and Appellant, v. SUNSHINE MEAT AND LIQUOR COMPANY, Defendant and Respondent. L.A. 31689.

Page 773

194 Cal.Rptr. 773

34 Cal.3d 554, 669 P.2d 9

David W. WILSON, Plaintiff and Appellant, v. SUNSHINE MEAT AND LIQUOR COMPANY, Defendant and Respondent.

L.A. 31689.

Supreme Court of California In Bank.

Sept. 8, 1983.

Joseph Behar, Los Angeles, for plaintiff and appellant.

Roy G. Weatherup, Haight, Dickson, Brown & Bonesteel, Santa Monica, for defendant and respondent.

KAUS, Justice.

I.

In Weeks v. Roberts (1968) 68 Cal.2d 802, 807-808, 69 Cal.Rptr. 305, 442 P.2d 361, we held that where a plaintiff moves to specially set a case for trial in order to avoid dismissal under the five-year rule (Code Civ.Proc., § 583, subd. (b)) ¹ and the "court feels impelled to dismiss an action less than five years after its filing for want of prosecution, it should do so and accept review on that basis. It should not exercise its discretion to dismiss on the basis of inconvenience to the court and in the guise of a refusal to specially set." We went on to chastise the trial judge who had vacated a special trial setting just within the five-year deadline although he "had discretion to dismiss, even on his own motion."

The question in this case is whether we should similarly criticize a judge who, in an identical procedural posture and on more than ample substantive grounds, does exercise his power to dismiss. In the absence of compelling intervening changes in the law, the answer must be "no."

II.

Plaintiff David Wilson appeals from an order dismissing his action for failing to bring it to trial within two years after filing the complaint. (§ 583, subd. (a).)

Wilson was allegedly struck by an employee of defendant Sunshine Meat and Liquor Company (hereafter "Sunshine") and sustained injury that resulted in loss of sight in one eye. He filed a complaint on June 30, 1976, alleging personal injuries, battery and negligence and seeking damages from Sunshine and the employee. On Sunshine's demurrer, the complaint was amended on December 7, 1977. Wilson has never conducted any discovery; Sunshine issued two sets of interrogatories and took three depositions.

The case then slumbered until May 1981--four years and ten-plus months after the filing of the original complaint. On May 18, 1981, Wilson moved to specially set the case for trial and requested an order shortening time. Two days later he filed the at-issue memorandum. Sunshine filed extensive opposition, stressing what it conceived to be plaintiff's total lack of diligence in prosecuting the case, the fact that its own discovery was no longer up-to-date, as well as other prejudice which would result from an instant trial. ² Citing several cases in which dismissals for lack of prosecution under the two-year statute (§ 583, subd. (a)) had been affirmed, it argued that it should not be penalized for not having filed a motion to dismiss.

At the hearing on the motion to set, Wilson's attorney first noted that he could not speak "for the attorneys who have been substituted in, substituted out, and associated in and out in this case in the last four and a half years," and then asked the court to hear the case on its merits within the five-year statute "for the simple reason that it does involve a loss of sight in one eye, and it involves a substantial sum of money to the plaintiff." ³ Opposing counsel argued that Wilson had failed to meet even the minimal standards of diligence in prosecuting the case.

The trial court denied the motion to set and, on its own motion, dismissed the case under subdivision (a) of section 583. Indicating that it was fully aware of its obligations under Weeks v. Roberts, supra, it announced: "THE COURT: Court would indicate, based on the information furnished to the court and the papers on file in this particular matter, it would be the court's opinion that the motion to specially set should be denied; and bearing in mind the admonition of the Supreme Court that you should not hide behind that, I guess, when you're going to exercise your discretion, so that you'll have something to appeal from, counsel, the court at this time is going to order that the matter be dismissed on its own motion under 583(a) of the Civil Code of Procedure. And that will be based on the fact that the court finds no reason for the delay and, further, that there is no indication as to any diligence on behalf of the plaintiff to bring the matter to trial." (Emphasis added.)

III.

Wilson contends on appeal that the trial court abused its discretion in dismissing. Specifically, it is urged that the court failed to follow the notice procedure prescribed in rule 203.5(a), California Rules of Court, and also failed to refer explicitly to the factors contained in subdivision (e) of rule 203.5 before reaching its decision to dismiss. We conclude that the trial court did not abuse its discretion: subdivision (a) of rule 203.5 has no application to the facts of this case, and subdivision (e) does not require an express declaration by the trial court.

IV.

1. Notice (Rule 203.5(a)).

We note at the outset that the issues before us are the narrow ones just stated: The impact, if any, of rule 203.5 on this case. Plaintiff does not claim--and never has claimed--that he did not anticipate that his diligence in prosecuting the action would be one of the issues canvassed in connection with the motion to specially set the case for trial. Even if his counsel was unaware that--as we shall show--the law injects that issue into every such motion made under the threat of the five-year statute, defendant's written opposition was ample warning that it was going to argue plaintiff's lack of diligence--an issue to which plaintiff's counsel clearly addressed himself when he uttered his disclaimer that he "could not speak for the attorneys who have been substituted in, substituted out, and associated in and out in this case in the last four and a half years." Nor did counsel protest that the court's dismissal came as a surprise or was outside the issues tendered by his motion for an early setting.

We turn to the issues that are raised. There can be no doubt that the trial court had the power to dismiss. From 1969 until 1982 section 583 provided: "(a) The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. The procedure for obtaining such dismissal shall be in accordance with rules adopted by the Judicial Council." ⁴

Rule 203.5(a) provides: "A party seeking dismissal of a case pursuant to subdivision (a) of Section 583 of the Code of Civil Procedure shall serve and file a notice of motion therefor at least 45 days before the date set for hearing of such motion, and the party may, together with his memorandum of points and authorities, serve and file an affidavit stating facts in support of his motion. The filing of the notice of motion shall not preclude the opposing party from further prosecution of the case to bring it to trial."

We note that the subdivision, by its terms, does not apply to the trial court but only to "a party" seeking dismissal. ⁵ Indeed, the subdivision was not even mentioned in Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 134 Cal.Rptr. 402, 556 P.2d 764, which presented a factual situation almost identical to the one before us. In Sanborn the trial court dismissed on its own motion when the parties were before it on a motion to advance the cause for trial. We concluded, based on the record before the trial court on the motion to advance, that the trial court had good cause to dismiss on its own motion and that the plaintiff had failed to meet his burden of showing excusable delay. Further, we emphasized that the trial court had done precisely what the court in Weeks had failed to do--dismissed and accepted "review on that basis." (Id. at p. 419, 134 Cal.Rptr. 402, 556 P.2d 764.)

Plaintiff points out that the issue of the applicability of rule 203.5 was not raised in Sanborn and that several appellate decisions have assumed that rule 203.5, subdivision (a) applies to court-initiated dismissals. The first, Andre v. General Dynamics, Inc. (1974) 43 Cal.App.3d 839, 118 Cal.Rptr. 95 involved a true court-originated motion--an action which the Court of Appeal characterized as "unusual." (Id., at p. 845, 118 Cal.Rptr. 95.) In upholding the dismissal against various contentions, the court noted in passing that "the trial court, while initiating the motion to dismiss, did so in complete compliance with the requirements of rule 203.5, subdivision (a), ..." The Court of Appeal did not, however, indicate that such compliance was required.

The next case, Tate v. Superior Court (1975) 45 Cal.App.3d 925, 119 Cal.Rptr. 835, misread Andre to mandate judicial compliance with rule 203.5. (Id., at p. 930, 119 Cal.Rptr. 835.) It went on to hold, however, that in spite of inadequate notice under rule 203.5(a), the trial court had not erred in dismissing the action on its own motion, since plaintiff had waived the defect by appearing. ⁶

Right or wrong, holdings or dicta, Andre and Tate have nothing to do with a situation such as the one faced by the trial court in this case: it had not hauled plaintiff into court by a court-initiated motion to dismiss. Rather it was faced with plaintiff's own motion to specially set in order to avoid the impact of the five-year statute. Such motions have traditionally invited an inquiry into the same factors which are relevant to a motion to dismiss under section 583, subdivision (a). ⁷ The similarity between the two motions is explained in Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 260, 10 Cal.Rptr. 314: "In passing upon the motion for an early and preferential setting, the court was not limited to a consideration of the single fact that the five-year period was about to expire but was required to view the total picture, including the dilatory action of the plaintiff, the condition of the court's...