Woley v. Turkus

• Decision Date: 30 December 1958
• Citation: 51 Cal.2d 402,334 P.2d 12
• Court: California Supreme Court
• Parties: K. WOLEY, Plaintiff and Appellant, v. Stanley Philip TURKUS, Defendant and Respondent. S. F. 20053.

Page 12

334 P.2d 12

51 Cal.2d 402

K. WOLEY, Plaintiff and Appellant, v. Stanley Philip TURKUS, Defendant and Respondent.

S. F. 20053.

Supreme Court of California, In Bank.

Dec. 30, 1958.

Abraham Setzer, San Francisco, for appellant.

Charles O. Morgan, Jr., and George R. Moscone, San Francisco, for respondent.

SHENK, Justice.

A judgment of dismissal of this action was rendered pursuant to section 583 of the Code of Civil Procedure. The dismissal was ordered on the ground that there had been an inexcusable delay of more than five years in bringing the action to trial. The plaintiff has appealed, contending that under the terms of a written stipulation and the circumstances otherwise appearing the dismissal was not mandatory and that the defendant is estopped to contend otherwise. The defendant contends that the stipulation extended the time only to January 13, 1956; that the plaintiff did not bring the action to trial on or before that date, and that there was no act or omission on the part of the defendant which would prevent him from invoking the mandatory provisions of section 583, the pertinent portions of which read: '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 record shows the following: On December 28, 1950, a complaint was filed in the Superior Court in San Mateo County for a money judgment, based on a 1948 Maryland judgment on a promissory note in the principal sum of $1,302 plus interest. The answer was filed February 6, 1951. On December 9, 1955, the plaintiff filed a memorandum to set and a notice of motion to advance the cause for trial. The supporting affidavit pointed out that the cause of action would be barred by section 583 unless the trial was commenced before December 28, 1955, which would be the expiration of the five year period. At the hearing on the motion to advance the cause for trial the defendant requested a continuance on the ground that nothing had been done in the case for almost five years and that the 12 days' notice was inadequate for trial preparation. The request was made with the representation by the defendant in open court that the plaintiff was not to be prejudiced by such a continuance. The court had set December 27, 1955, as the date for the trial and for the hearing on the motion for summary judgment in response to the plaintiff's request to advance the cause for trial before December 28. However, pursuant to the request of the defendant and also pursuant to a written stipulation entered into by the parties the court granted a continuance to January 13, 1956. The stipulation reads as follows:

'Stipulation for continuance of plaintiff's motion for summary judgment, and of trial of action, at defendant's request, beyond five year period prescribed by section 583 of the Code of Civil Procedure.

'The defendant above named having requested the same, it is hereby stipulated and agreed * * * that plaintiff's motion for a summary judgment, and the trial of the above entitled action * * * be continued to the 13th day of January, 1956 * * * the parties hereto expressly waiving further notice of the time and place of the respective hearing of said motion and of said trial and consenting thereto after the elapse of the five year period prescribed by section 583 of the Code of Civil Procedure.'

On January 13 both parties were present in court. The defendant thereupon served and filed an affidavit in opposition to the motion for summary judgment. The court heard the motion and ordered that it be submitted pending the receipt of the defendant's amended affidavit. The trial was ordered continued to February 10, without objection by the defendant. On January 23 the defendant served and filed his amended affidavit and additional points and authorities on the motion for summary judgment. On March 6 the plaintiff served her affidavit in replication. On March 26 the court determined that there were triable issues of fact presented and that it could not determine on the motion for summary judgment the truth or falsity of the statements in the defendant's answer and affidavits. The motion for summary judgment was thereupon denied. Notice of the order denying this motion was served on the plaintiff on April 3. In the meantime the action had been removed to the master calendar department to be reset for trial. When the master calendar was called on April 11 the trial date was set for May 25. There were no available departments on May 25 and the matter was continued to June 28.

On May 28 the plaintiff noticed a motion for an order for the issuance of a commission to take an out-of-state deposition. On June 6 the defendant noticed the present motion to dismiss. It was heard before a judge other than the one who had conducted the former proceedings. In support of the motion the defendant alleged that a written stipulation had been entered into extending the time for trial to January 13, 1956; that the plaintiff did not commence the trial on that date nor at any time thereafter, and that the plaintiff's delay in bringing the cause to trial on January 13 was inexcusable and was not caused by any acts or omissions on the part of the defendant or his attorney. The plaintiff's answering affidavit averred that the defendant and his attorney knew and agreed that the court would first proceed to hear the motion for summary judgment on January 13 before proceeding with the trial and expressly agreed to such order of hearing; that in accordance with this agreement, and independently thereof, the court on that date ordered the motion to proceed; that when the court indicated it was about to grant the motion the defendant asked for an opportunity to present additional defenses by an amended affidavit and additional points and authorities, and that the court granted the defendant's request, giving the plaintiff an opportunity to respond thereto. Both of these motions were noticed for hearing on June 12 and were submitted. The defendant's motion was granted and judgment of dismissal was entered on June 28, 1956. The court concluded that the stipulation of the parties had extended the time to bring the action to trial to the 13th day of January, 1956, and not thereafter, and that it was not brought to trial on January 13, 1956.

The purpose of section 583 is to prevent avoidable delay in bringing an action to trial. Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665; Christin v. Superior Court of Los Angeles County, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153. A delay of five years is declared by this statute to be unreasonable as a matter of law (Romero v. Snyder, 167 Cal. 216, 220, 138 P. 1002; Hibernia Savings & Loan Soc. v. Lauffer, 41 Cal.App.2d 725, 729, 107 P.2d 494) and to be sufficient time to complete preliminary matters in bringing the cause to trial.

However, the statute is not designed to arbitrarily close the proceedings at all events in five years. It expressly permits the parties to extend the period without limitation by written stipulation. Christin v. Superior Court, supra, 9 Cal.2d 526, 532, 71 P.2d 205; Continental Pacific Lines v. Superior Court, 142 Cal.App.2d 744, 749, 299 P.2d 417. Exceptions have been recognized by the courts. One arises where a party is unable from causes beyond his control to bring the case to trial either because of a total lack of jurisdiction in the strict sense on the part of the trial court or because proceeding to trial would be both impracticable and futile. Whether it is impossible, impracticable or futile to proceed to trial must be determined in the light of the circumstances in each case. Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981; Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 68, 168 P.2d 665; cf. Wyoming Pacific Oil Co....