Wright v. Groom Trucking Co.

• Court: California Court of Appeals
• Writing for the Court: SULLIVAN; BRAY, P. J., and CONLEY
• Citation: Wright v. Groom Trucking Co., 206 Cal.App.2d 485, 24 Cal.Rptr. 80 (Cal. App. 1962)
• Decision Date: 06 August 1962
• Parties: John WRIGHT, Sr., Susan Wright, a Minor, by her Guardian ad Litem, John Wright, Sr., Plaintiffs and Appellants, v. GROOM TRUCKING CO., John L. Groom, Marion Groom and Donald Cary, Defendants and Respondents. Civ. 20164.

Page 80

24 Cal.Rptr. 80

206 Cal.App.2d 485

John WRIGHT, Sr., Susan Wright, a Minor, by her Guardian ad Litem, John Wright, Sr., Plaintiffs and Appellants, v. GROOM TRUCKING CO., John L. Groom, Marion Groom and Donald Cary, Defendants and Respondents.

Civ. 20164.

District Court of Appeal, First District, Division 1, California.

Aug. 6, 1962.

Hearing Denied Oct. 2, 1962.

Sidney A. Cherniss, Hugh R. Manes, Los Angeles, for appellants.

Theodore Tamba, San Francisco, for respondents.

SULLIVAN, Justice.

Plaintiffs appeal from certain orders dismissing this action pursuant to section 583 of the Code of Civil Procedure upon the ground that it was not brought to trial within five years after it was filed.

Their appeal is taken from 'the Order * * * dated September 16, 1960, entered in the Minutes of the Court' and from 'all orders and Judgments dismissing the above entitled action entered in the Minutes of the Court * * * including the Order * * * filed September 23, 1960, * * *.' This abundance of precaution envelops three orders, a minute order and two formal written orders. ¹ An order of dismissal, entered upon the official minutes of the court, while not in the form on a judgment in the strict sense, constitutes a final judgment from which an appeal may be taken. (Southern Pac. R. R. Co. v. Willett (1932) 216 Cal. 387, 390, 14 P.2d 526; Jackson v. Thompson (1941) 43 Cal.App.2d 150, 151-152, 110 P.2d 470.) Where, however, the order entered in the minutes directs that a written order be prepared, signed and filed, the appeal does not lie from the minute order but from the written order. (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304-306, 259 P.2d 901; Wallace v. Imbertson (1961) 197 A.C.A. 411, 416, 17 Cal.Rptr. 117; see Cal.Rules of Court, Rule 2, subd. (b)(2).) But where the minute order does not direct or otherwise require a further or formal order, appeal lies from the minute order despite the fact that a formal order or formal judgment is subsequently entered. (Southern Pac. R. R. Co. v. Willett, supra.) In the instant case the minute order of September 16 did not direct or otherwise require the preparation, signing and filing of a formal written order. The two remaining written orders of September 16 and September 23 are, therefore, not appealable orders and plaintiffs' attempted appeals therefrom must be dismissed. We proceed to review the proceedings below on the appeal from the minute order of September 16.

The record shows the following: On August 9, 1955, plaintiffs filed their complaint in the Superior Court in Los Angeles County seeking damages for personal injuries arising out of an automobile collision. Pursuant to written stipulation of the parties on July 13, 1956, the cause ordered transferred to the County of Mendocino and was thereafter filed in the Superior Court in the latter county on July 25, 1956. The answer of all defendants was filed on August 1, 1956. After various continuances, a pretrial conference was held, with counsel for all parties appearing, on April 28, 1960, three months and eleven days before the expiration of the five-year period prescribed by section 583. The pretrial conference order made and filed on said date set trial for October 3-6, 1960, beyond the five-year period which would expire on August 9, 1960. It reads in part: 'The estimated time for the trial of this case is four days. The case is now set for October 3, 4, 5, and 6, 1960. A jury is demanded by the defendants, and a jury will be drawn on Friday, September 23, 1960. Notice of trial date is waived.'

On August 5, 1960, defendants' counsel wrote plaintiffs' counsel advising the latter that the five-year period would run on August 10 and that he would file a motion to dismiss. Notice of motion to dismiss was filed on August 11, 1960, and, after hearing before the court on September 16, such motion was granted and the various orders heretofore mentioned were made and entered. ²

At the hearing on the motion the court had before it the pleadings and two affidavits of the parties. A short affidavit of defendants' counsel in support of the motion states the filing date of the complaint, that the parties entered into no stipulation extending the time within which to bring the action to trial, and that 'the delay of the plaintiffs in bringing said Cause to trial is wholly inexcusable and not caused by any act or acts or omission of defendants or affiant, * * *.' The affidavit in opposition by plaintiffs' counsel is more extensive and has attached to it as an exhibit, copies of correspondence had by such counsel relating to the case, including correspondence with defendants' counsel. It purports to present to the trial court various arguments against a dismissal of the action which are in general similar to those now urged by plaintiffs on appeal. Defendants filed no affidavit in replication apparently because copies of plaintiffs' affidavit were misdirected and did not reach defendants' counsel until the night before the hearing.

Section 583 in relevant part provides: '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 have filed his action, except where the parties have filed a stipulation in writing that the time may be extended * * *.' (Emphasis added.)

Plaintiffs contend that the pretrial conference order constitutes a written stipulation to extend the time for trial beyond the five-year period. The gist of their argument on this point is that at the pretrial conference the parties agreed to October 3 as the date for the commencement of the trial and the subsequent pretrial conference order was the embodiment of their oral stipulation. In their affidavit in opposition to the motion to dismiss, plaintiffs allege certain colloquy among court and counsel at the pretrial conference which was in substance as follows: that the court said that it could not set a four or five day jury trial in July and that the earliest available date was October 3; and that each counsel in turn thereupon declared to the court that October 3 was satisfactory. Defendants do not completely deny that the above took place although, as we have pointed out, their affidavit raises the full issue of a valid stipulation by alleging that 'no stipulation has been entered into by the parties * * *.' In fairness to the defendants, however, there would seem to be some question as to whether they had a reasonable opportunity to fully rebut or explain the above-mentioned colloquy by an affidavit in replication, since, as we have pointed out, they received a copy of plaintiff's affidavit the night before the hearing. ³

A stipulation extending the five-year period of limitation prescribed by section 583 'must be written and extend in express terms the time of trial to a date beyond the five-year period or expressly waive the right to dismissal.' (J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 669, 343 P.2d 919, 921.) A mere oral stipulation will neither satisfy the requirement of the statute nor effectively preclude its operation by estoppel. (Miller & Lux, Inc. v. Superior Court (1923) 192 Cal. 333, 338-339, 219 P. 1006; Berger v. McMahan (1953) 116 Cal.App.2d 328, 329-330, 253 P.2d 543.) It has been held however that where the parties through their counsel enter into an oral stipulation in open court extending the time of trial to a date beyond the five-year period and the stipulation is entered in the minutes of the court, such stipulation, although not literally complying with the language of section 583, will operate to estop the defendant from moving to dismiss the action pursuant to such section for want of prosecution. (Govea v. Superior Court (1938) 26 Cal.App.2d 27, 31, 78 P.2d 433.) The Supreme Court referred to and quoted from the Govea case with approval in Woley v Turkus (1958) 51 Cal.2d 402, 408, 334 P.2d 12. If, however, by order of court entered in the minutes, a cause is continued for trial to a date beyond the five-year period of the statute, but no stipulation of the parties agreeing to such extension of time is entered in the minutes, the above rule announced in Govea has no application. (Preiss v. Good Samaritan Hospital (1959) 171 Cal.App.2d 559, 562-563, 340 P.2d 661, 662.)

In the Preiss case, as in the instant one, the affidavit of the moving party stated that there was "no stipulation on file, or otherwise," extending the five-year period. The plaintiff's affidavit in opposition in Preiss alleged that the defendant's counsel stated that he would agree to a further continuance as plaintiff's counsel requested and would appear in court and enter into a stipulation; that counsel for both parties thereupon did so appear and stipulated that the case might be continued to the first open date which was announced by the court and agreed to by both counsel. The minute order thereupon entered showed that defendant's counsel was present in court and provided: "ON MOTION OF PLAINTIFF CAUSE ORDERED CONTINUED TO July 14, 1958 AT 9 A.M., NOTICE WAIVED." Such new trial date was approximately four months after the expiration of the five-year period. The court stated: 'In the case at bar no stipulation of the parties was entered by the clerk in the minutes; consequently the Govea case has no application. Other than the claimed minute order, there is no written stipulation in the record that the five-year period be extended. This court has no power to disregard the minutes of a trial court. In other words, the minutes of the trial court import absolute verity, and cannot be collaterally attacked in a reviewing court. People ex rel. Galvin v. Judge of the Tenth Judicial Dist., 9 Cal. 19, 20; Willson v. Broder, 24 Cal. 190, 191-192; In re...