SHAFFER v. WEBER

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Court of Appeal, Second District, Division 7, California.

Kermit Stephen SHAFFER, a Minor, etc., Plaintiff and Appellant, v. Perris WEBER, a Minor, et al., Defendants and Respondents.

No. B044700.

Decided: August 27, 1991

Haight, Brown & Bonesteel, Roy G. Weatherup, Jeffrey B. Margulies, Santa Monica and Kenneth L. Powell, Arcadia, for plaintiff and appellant. No appearance for defendants and respondents.

Plaintiff, Kermit Stephen Shaffer, appeals from an order of dismissal entered pursuant to Code of Civil Procedure section1 583.420, subdivision (a)(2)(A)2 for failure to prosecute. We affirm.

FACTS AND PROCEEDINGS BELOW

The facts as found in the record, appellant's brief on appeal, and the superior court file, are as follows:

On October 23, 1984, appellant filed his complaint against respondent, seeking damages for injuries sustained when appellant was shot by one Perris Weber with a gun owned by the parents of Perris Weber, Eric and Katherine Weber (“respondents”). On May 9, 1985, respondents answered the complaint. The complaint was amended on July 25, 1985, to name Eric Weber, Inc. dba, The Paymaster, as Doe 21. In June 1986 this defendant was voluntarily dismissed.

On December 10, 1985, appellant filed an at-issue memorandum. On December 28, 1985, respondents filed a counter at-issue memorandum and objections to plaintiff's at-issue memorandum. Respondents moved to strike the at-issue memorandum claiming sufficient discovery had not been completed. Respondents' motion was denied on February 6, 1986.

Apparently the initial superior court proceeding involving the attendance of counsel in this matter was an “arbitration conference.” However, the trial court file in this matter, which we ordered transferred here, contains no reference to an “arbitration conference” and the record on appeal is devoid of any reference to the date on which this conference occurred. But, according to the declaration of appellant's trial attorney, Kenneth L. Powell, filed in conjunction with a motion to specially set the case for trial dated and signed by him on May 10, 1989, reference is made to an arbitration conference as follows:

“DECLARATION OF KENNETH L. POWELL

“I, KENNETH POWELL, do declare and say that I am attorney at law duly licensed to practice before all of the courts in the state of California and attorney of record for plaintiff herein:

“․

“That the original arbitration conference in this case was scheduled, and the parties stipulated that the amount in controversy was in excess of the then $25,000 threshhold. This office as well as the office for the defendant were apparently under the mistaken belief that no appearance was required under such stipulation.

“․

“I declare under penalty of purjury [sic] under the laws of the State of California that the foregoing is true and correct.

“Respectfully submitted,

/s/Kenneth L. Powell

KENNETH L. POWELL

“DATED: 5-10-89”

As stated in the Powell declaration, neither party attended the arbitration conference since the parties stipulated that the amount in controversy was in excess of the then $25,000 threshhold. As declared, attorney Powell and respondents' attorney were apparently under the mistaken belief that no appearance was required under such a stipulation. The record on appeal contains no further reference to the stipulation, and no stipulation is to be found in the superior court file.

We instructed the clerk of the court to send a letter to attorney Powell inviting him to provide further details pertaining to his declaration reference to an “arbitration conference” and the “stipulation.” The clerk's letter is dated July 30, 1991, and provides:

“At page 49, lines 10 through 15 of the clerk's transcript filed with this court on April 24, 1990, the following statement appears in the ‘Declaration of Kenneth L. Powell’ dated and signed on 5-10-89:

“‘That the original arbitration conference in this case was scheduled, and the parties stipulated that the amount in controversy was in excess of the then $25,000 threshold. This office as well as the office for the defendant were apparently under the mistaken belief that no appearance was required under such stipulation.’

“The court desires additional information from the appellant pertaining to the above statement on or before August 9, 1991, as follows:

“1. The date and place of the ‘arbitration conference.’

“2. The form of the notice to attend the ‘arbitration conference.’

“3. What typically is the purpose of this ‘arbitration conference’;

“4. The form (oral or written) of the stipulation between the parties that the amount in controversy was in excess of $25,000.00;

“5. Whether the stipulation was communicated to the Court (orally or in writing);

“6. Whether any party or his counsel appeared at the ‘arbitration’ conference.

“7. What business the court conducted at the ‘arbitration’ conference.

“8. Whether this ‘arbitration’ conference actually was a “trial setting” conference and, if so, what connection, if any, there was between this trial setting conference and the trial setting conference for which the clerk's office failed to send notice.

“Counsel is advised that the Superior Court file3 in this matter has been transferred to the clerk of this court and is available for inspection should you deem it necessary in responding to the inquiries above mentioned.”

Curiously, co-counsel responded by letter dated August 9, 1991, as follows:

“As Mr. Powell is out of town, we are responding on his behalf to the letter from the clerk of July 30, 1991.

“That letter requested information regarding Mr. Powell's declaration of May 10, 1989, specifically with reference to Mr. Powell's mistaken belief that an appearance at an arbitration conference was not required. Mr. Powell has informed us that, in reviewing the file of this case, he noted that no notice of arbitration conference had been received by him. Therefore, he believes that he inadvertently, and erroneously had referred to a different action in that declaration.

“With respect to question no. 8, Mr. Powell does not believe that his reference to the arbitration conference was in any way related to the trial setting conference for which the clerk's office failed to send notice.

“We apologize for any inconvenience that this inadvertent reference in the declaration may have caused to the court, and trust that it will not prejudice the rights of our client.

“If you have any further questions, please do not hesitate to contact either Mr. Powell or this office.”

Having compared the mutually exclusive statements contained in the Powell declaration and the unsworn letter response of his co-counsel, we feel compelled to draw reasonable inferences from the declaration and to disregard the letter response of Powell's co-counsel.

We infer that an “arbitration status conference” was held pursuant to rule 211 of the California Rules of Court and that at the arbitration status conference, a time and place for a trial setting conference was assigned pursuant to subdivision (c)(4) of rule 211.4

The record reflects that a trial setting conference was scheduled for March 13, 1986. There is no indication in the superior court file of notice of the trial setting conference having been mailed to the parties. Personal notice would have been obtained by both counsel had they attended the arbitration status conference. Because neither side appeared at the trial setting conference, the court ordered plaintiff's at-issue memorandum stricken and the case removed from the civil active list. Neither the record nor the court file contains evidence that notice of the court's order striking plaintiff's at-issue memorandum was mailed to the parties.

After the at-issue memorandum was stricken on March 13, 1986, the file languished for almost three years until counsel for appellant discovered this fact and filed a new at-issue memorandum on January 17, 1989.

The filing of the new at-issue memorandum was followed by the filing of a notice of motion, over four months later, to specially set the case for trial since the five-year mandatory period for dismissal would occur on October 23 of 1989.5 The motion was supported by a declaration of Kenneth L. Powell which, inter alia, contains a statement of diligence in the following conclusory terms:

“This case has been actively pursued by the parties in that depositions have been taken, dicovery [sic] conducted and substantially all discovery is completed. Accordingly, there has been no lack of due diligence in pursuing this matter.”

The motion was denied on June 22, 1989, just four months before the five-year mandatory dismissal date, and the case ordered dismissed pursuant to California Rules of Court, rule 373(e).

Thereafter, counsel for plaintiff filed a motion for the court to reconsider the dismissal and for the first time supported his motion with a factual declaration. The motion indicated that the following chronology of activity in the case had occurred which counsel contended demonstrated diligence in pursuing the action:

We note that when counsel for appellant finally became cognizant of the three-year period during which his action languished in the superior court he filed another at-issue memorandum but waited another five months before having the court hear his motion for an order of court to have the matter specially set for trial. On the date that his motion to specially set was denied, June 22, 1989, only four months remained prior to the expiration of the five-year statute of limitations. We judicially notice that the year 1989 represented an improvement over the prior three years in the backlog of civil cases waiting trial in the court system of Los Angeles, but not dramatically so, and which continued experiencing celebrated court congestion as evidenced by the sharp rise in backlog in 1990.6

DISCUSSION

Respondents have not filed a brief on appeal. Where a respondent fails to file a brief on appeal rule 17(b) of the California Rules of Court provides in pertinent part, “the court may accept as true the statement of facts in the appellant's opening brief and, unless the appellant requests oral argument, may submit the case for decision on the record and on the appellant's opening brief.” However, the rule is permissive and consequently the respondent's failure to file a brief does not warrant an automatic reversal; the burden remains with the appellant to show error. (American Motorists Ins. Co. v. Carver (1969) 275 Cal.App.2d 793, 794, 80 Cal.Rptr. 332.) Thus, this court has discretion in reviewing the record and will reverse only if appellant shows prejudicial error. (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854, 192 Cal.Rptr. 212.)

The trial court has discretion to dismiss an action for delay in prosecution if it is not brought to trial within three years after it has been commenced. (§ 583.420(a)(2)(A).) When the trial court has ruled on such a motion, or as in this case, has ruled sua sponte, unless a clear case of abuse is shown and unless there has been a miscarriage of justice, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. (Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 990-991, 268 Cal.Rptr. 522.) The burden is on the party complaining to establish an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)

The policy favoring trial or other disposition of actions on the merits is to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence. (§ 583.130; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916, 231 Cal.Rptr. 738, 727 P.2d 1019; Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.) Thus, closer scrutiny is given when the trial court orders a dismissal. (Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 51, 222 Cal.Rptr. 713 disapproved on another point in Woods v. Young (1991) 53 Cal.3d 315, 328, fn. 4, 279 Cal.Rptr. 613, 807 P.2d 455.)

However, the policy favoring trial on the merits is not absolute and may prevail only where the plaintiff makes some showing of excusable delay. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562-563, 194 Cal.Rptr. 773, 669 P.2d 9.)

The ultimate question on review is whether, under all the circumstances, the plaintiff has shown a clear or manifest abuse of discretion. (Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696, 704, 242 Cal.Rptr. 8.)

A motion to specially set to avoid the bar of the five-year statute raises the same issues as a motion for discretionary dismissal for failure to prosecute. (§§ 36, 583.410, 583.420; Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346, 228 Cal.Rptr. 504, 721 P.2d 590.)7 The trial court should consider the criteria listed in California Rules of Court, rule 373(e) in ruling on a motion to specially set under section 36, subdivision (e), or in ruling on a discretionary motion to dismiss.8 (Id., at p. 346, fn. 4, 228 Cal.Rptr. 504, 721 P.2d 590; Biondi, Flemming & Gonzales v. Braham (1990) 218 Cal.App.3d 842, 847, 267 Cal.Rptr. 365.)

In Salas, the plaintiffs' case was removed from the civil active list as a sanction for their failure to serve the defendants with written notice of the trial setting conference after being ordered to do so. The plaintiffs failed to initiate discovery and during the next ten months did nothing to return the case to the civil active list or to set the matter for trial. The court denied the plaintiffs' motion to specially set, which was filed forty days before expiration of the five-year period. The court later granted the defendants' motions to dismiss based on the plaintiffs' failure to bring the matter to trial within five years.

The Supreme Court stated the approach of the five-year limit is a critical consideration in ruling on a motion to specially set and the trial court must be guided by the policies favoring trial on the merits in determining a motion for discretionary dismissal based on failure to prosecute. (Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at pp. 346-347, 228 Cal.Rptr. 504, 721 P.2d 590.) The court explained, that in deciding whether to set a preferential trial date in a case in which the five-year deadline is approaching, the court must consider the “total picture”, “including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.” (Id. at p. 349, 228 Cal.Rptr. 504, 721 P.2d 590.)

In this case an analysis of the “total picture” indicates that we cannot say that the court abused its discretion in denying appellant a preferential trial date.

We may have exercised our discretion differently had we been in the position of the trial judge; however, that is not our function as an appellate court. Our search begins and ends with a manifestation of abuse of discretion. In this case, we find none.

As we stated in Mesler v. Bragg Management Co., supra, 219 Cal.App.3d 983, 994, 268 Cal.Rptr. 522, it is the duty of trial counsel to monitor the court file and to take appropriate action by way of motion or otherwise if the case is not proceeding properly. Counsel are reminded that they are first and foremost officers of the court with a duty to be cognizant of the condition of the court file. A prudent officer simply will not let the file languish for a period of three years and then expect the court to be sympathetic to a plea to crowd in front of those officers of the court who have carefully monitored their cases through the five year statutory period. This is particularly so when court availability is at a premium as revealed by the statistics previously quoted.

In the instant case, counsel blames the court clerk for failure to give two notices, one of a trial setting conference and another of the striking of his at-issue memorandum. We do not intend by this decision to condone deficient work by the clerk of the court. However, neither will we be sympathetic to counsel who allows his case to languish in the superior court for a period of three years without examining the court file, calling, or writing to the clerk of the court to determine what is the status of his case.9 Neither do we condone the fact that with only nine months remaining before the five-year statute of limitation would expire, after filing of a new at-issue memorandum, counsel let a critical five-month period expire before having his motion heard in the superior court to specially set his case for trial. We cannot say that the court abused its discretion in denying the motion to specially set with only four months remaining in view of the well-known congestion in the courts as reflected and acknowledged in the appellant's opening brief on several occasions.

DISPOSITION

The judgment is affirmed. Respondents to recover costs on appeal.

I respectfully dissent.

The majority opinion refers to the Supreme Court decision in Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 228 Cal.Rptr. 504, 721 P.2d 590, but does not heed its directive to consider the “total picture” in deciding whether to set a preferential trial date. The “total picture” includes “the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied․” (Id. at p. 349, 228 Cal.Rptr. 504, 721 P.2d 590.) It is not limited to whether the plaintiff regularly communicated with the court in monitoring its case nor is it limited to the single factor of a plaintiff's diligence in bringing his case to trial. The majority opinion acknowledges court congestion was at its peak during this period, but does not take this factor into consideration in analyzing the “total picture”. Nor does the majority opinion discuss the prejudicial effect, if any, on the respondents from an early trial date. Instead, the majority's decision focuses on the single element of what in their opinion is “dilatory” conduct by the plaintiff, and concludes the trial court did not abuse its discretion by dismissing plaintiff's case sua sponte.

I believe a review of all the factual circumstances of the case indicate appellant was entitled to a preferential trial date and that it was an abuse of discretion to dismiss his case.

Additionally, the Supreme Court and the Legislature have both advised trial courts must be guided by the policy of favoring trial on the merits in ruling on a motion to specially set. (Code Civ.Proc., § 583.130; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916, 231 Cal.Rptr. 738, 727 P.2d 1019; Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193; see analysis of legislative policy of Code Civ. Proc., § 583.130, Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 996, 268 Cal.Rptr. 522 dissenting opn., Johnson, J. [criticizing decisions where acknowledgement of the policy of preferring trial on the merits is “followed by a finding that somehow the disfavored policy overrides the favored policy in the particular case because of the plaintiff's lack of diligence.”].)

With the legislative policy tipping the scales in favor of trial on the merits, the factual circumstances of this case indicate it was an abuse of discretion to deny appellant a preferential trial date to dismiss his case for failure to prosecute.

The record indicates appellant demonstrated diligence in preparing and moving the case to trial. Immediately after respondents answered the complaint, appellant commenced discovery. Depositions of all critical parties were taken. Interrogatories were prepared and responded to. An independent medical examination of appellant was conducted and the findings disseminated to the parties.

Pretrial motions were made to substitute Eric Weber, Inc. as a Doe defendant. After further discovery, another motion was made to dismiss this defendant with prejudice. With substantially all discovery completed, appellant promptly filed his at-issue memorandum, placing the case on the civil active list. A hearing was held on respondents' motion in opposition to appellant's at-issue memorandum on the grounds inadequate discovery had been completed at that point. The trial court denied the motion and the case remained on the civil active list. The parties virtually completed discovery within the next few months of 1986. With the case essentially ready for trial, appellant initiated settlement negotiations with respondents which proved unsuccessful.

The majority opinion does not dispute the court file indicates no notice of the trial setting conference was sent. Notice of a trial setting conference to all parties who have appeared is required under California Rules of Court, rule 221, yet neither side apparently received such notice from the trial court. (Biondi, Flemming & Gonzales v. Braham (1990) 218 Cal.App.3d 842, 267 Cal.Rptr. 365, see fn. 3, supra.)

This is not a typical case of a plaintiff showing no interest in preparing the case for trial. Appellant did not wait years to serve the complaint. (See e.g., Trailmobile, Inc. v. Superior Court (1989) 210 Cal.App.3d 1451, 259 Cal.Rptr. 100.) Appellant did not neglect to file an at-issue memorandum until the last moment. (See, e.g., Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 165 Cal.Rptr. 524.) Nor was appellant dilatory in pursuing discovery and preparing the case for trial. (See, e.g., Lowe v. Thomas (1970) 11 Cal.App.3d 867, 90 Cal.Rptr. 202.) The case was ready for trial within almost two years of filing the complaint. But for the court clerk's error in failing to send the various critical notices, there is no reason to believe appellant would not have appeared at the status conference and proceeded to trial.

At the time this case was filed, congestion in Los Angeles Superior Courts was perhaps at its worst. Appellant's counsel represented it was his experience regular cases in Los Angeles county often had to wait until nearly the five year limit for trial dates. Because of the fact of court congestion, counsel did not become concerned he had received no earlier notice of a trial status conference. Counsel, however, took action when the time approached which in his experience indicated he should have received notice of a trial setting conference.1 At that point, and with ten months to go before the mandatory five-year limit, counsel contacted the superior court, discovered he had received no notice the at-issue memorandum had been stricken and immediately filed a new at-issue memorandum. With more than five months to go, appellant filed a motion to specially set.

Possible prejudice to the respondents from the delay was not an issue in this case. We note the trial court dismissed the case sua sponte. Respondents did not move to have the case dismissed. Nor did they urge dismissal at the hearing on appellant's motion to specially set. In fact, respondents apparently did not even oppose the motion to specially set. There are no documents in the record to indicate any opposition. Moreover, respondents did not offer any objection at either the hearing to specially set or the hearing on reconsideration of the trial court's order of dismissal. Nor have respondents filed a brief on appeal to argue the propriety of the dismissal. Because all discovery was completed shortly after the complaint was filed, it would be very difficult for respondents to claim any prejudice from the delay in any event.

Under these circumstances, a review of the relevant factors guiding the decision on a motion to specially set or for discretionary dismissal indicate the “interests of justice are best served” by a trial of the case. While appellant may have done one or two things differently to have been perfectly diligent, the policy of preferring trial on the merits embodied in Code of Civil Procedure section 583.130 only requires “reasonable diligence” not “perfect diligence.” “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action ․ and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.” (Code Civ.Proc., § 583.130)

Thus, the overriding considerations in these cases are the plaintiff's reasonable diligence with pre-trial activities and the statutory directive of preferring trial on the merits. Whatever imperfections that may exist in counsel's performance in securing a court date are more than out-weighed by appellant's conscientiousness in preparing the case for trial and by the fact the bulk of the delay was attributed to the court clerk's error--not once, but twice.2

Had the court clerk only “goofed” once, it is highly unlikely this appeal would be before us today. (Cf., Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 134, 199 Cal.Rptr. 295.) If notice had been sent of the trial status conference, counsel would no doubt have appeared and a trial date would have been set. If the clerk had failed to send notice of the trial setting conference but had sent notice of the striking of the at-issue memorandum had been, appellant would probably have immediately objected and reinstated the case on the civil active list. There is nothing of substance in the record to indicate otherwise. The facts show, once apprised of the clerk's error, appellant took the necessary corrective steps. These steps were taken with more than ample time remaining for an anticipated five-day trial before the five-year mandatory dismissal limit and appellant should have been granted a trial date in this matter. (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 279 Cal.Rptr. 488 [reversal of discretionary dismissal where delay attributed to court clerk's improper removal of case from civil active list]; Hilburger v. Madsen, supra, 177 Cal.App.3d 45, 51, 222 Cal.Rptr. 713 [reversed dismissal in “close case,” resolving all doubts in favor of party attempting to get to trial]; Rickless v. Temple (1970) 4 Cal.App.3d 869, 881, 84 Cal.Rptr. 828 [“If there is a valid or reasonable excuse for delay in prosecuting the action, then to dismiss under the discretionary provisions ․ is an abuse of discretion.”].)

The majority opinion criticizes appellant for waiting five months after discovering the court's double mistake to request the case be specially set. Given the state of the court's calender--acknowledged in the majority opinion as well as in this dissent--a motion made much earlier probably would have been laughed out of court as “premature.” With only “five-year” cases being tried (see fn. 1, supra), can it really be said appellant was fatally undiligent to wait until four months before that time to seek a special setting for the trial of his case? I think not, especially if we are to follow the Supreme Court's admonition to consider the “total picture.”

The heart of the majority opinion is elsewhere, however. The majority opinion would impose a duty on plaintiffs--but not defendants--to constantly “monitor” the court files in all their active cases or risk involuntary dismissals. Why? To ensure the clerk's office has not failed to perform its official responsibilities to provide required notices, to properly file and not lose important documents, to correctly record significant actions in court, and the like. Moreover, according to the majority, this duty exists even during periods when attorneys have no reason to expect any activity in those files--as when the courts are so congested they have not yet begun thinking about setting a trial date to say nothing of actually trying the case. One can almost hear the weary responses from the deputy clerks hectored to haul out thousands of essentially dormant files each month so plaintiffs' lawyers can examine them to make sure those clerks haven't lost some critical document such as an at-issue memorandum, or failed to serve notice of some critical event, or whatever.

Moreover, this “monitoring” duty has unfavorable implications for law firms, especially sole practitioners, and their clients. True, this “monitoring” task may present a wonderful opportunity for large law firms to “churn”--and thus build up billable hours--by sending associates out every month or two to check up on the court clerks' performance in all their pending cases. But sole practitioners, or even law firms of two or three lawyers, can seldom spare the time to personally visit the clerk's office just to make sure these public servants have done their jobs. Moreover, I suspect most clients would be appalled to learn they were paying legal fees for their lawyers to double check on the work of government employees their taxes paid to do the job right the first time. Yet under the majority opinion this is the only way lawyers representing plaintiffs, at least, can avoid the risk of involuntary dismissal when court clerks fail to properly perform their official duties.

In my opinion, it would be a far better use of private and public resources for courts to accept the blame in what we all hope and expect are the rare instances when their functionaries err and excuse litigants from delays caused by those mistakes. The alternative, advocated in the majority opinion, requires clients to pay their lawyers to monitor the court files in each and every case during the entire five years or so before they reach trial.3 All of this expense is necessary merely to detect the unusual situation where the clerk's office committed a mistake which will result in dismissal of the plaintiff's case. But when the penalty is so severe--the complete extinguishment of their clients' rights to relief--lawyers cannot accept even the smallest risk the clerk's office has committed a fatal error in handling the file. I suspect all this monitoring will cost private litigants and the court system far more in the aggregate than the few additional trials that might have to be held if clerk error were allowed to excuse delays it caused.

It is bad enough private plaintiffs must pay the penalty for the mistakes of public employees in the, we hope, rare instances where the court clerks in this state err. But to impose an unrealistic duty on private litigants to monitor the performance of these public offices in each and every case is to add unnecessary expense to the system and make litigation still more costly for California citizens.

Guided by the policy “which seeks to dispose of litigation on the merits rather than on procedural grounds” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193), I would find the trial court abused its discretion in failing to grant a preferential trial date and in dismissing the case sua sponte.

FOOTNOTES

FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure..  FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure.

2.  Section 583.420, subdivision (a)(2)(A) reads as follows:“(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: ․ (2) The action is not brought to trial within the following times: ․ (A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).”

3.  Evidence Code section 452, subdivision (d) provides as follows: “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: ․ (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” The records of the clerk of this court contain no request of counsel to inspect the superior court file.

4.  In relevant part, rule 211 of the California Rules of Court entitled “Arbitration Status Conference” reads as follows:“(a) Unless otherwise provided by law, courts having more than three judges and a judicial arbitration program under Code of Civil Procedure section 1141.11 shall hold an arbitration status conference in every case where suitability for judicial arbitration must be determined unless the plaintiff elects or the parties stipulate that the case be placed on the arbitration hearing list. The conference shall be held within 30 to 90 days after the filing of the at-issue memorandum but no later than 90 days before trial, unless otherwise ordered by the court for good cause.“(b) The persons attending the conference shall have sufficient knowledge of the case to inform the court of the suitability of placing the case on the arbitration hearing list.“(c) At the conference the court may“․“(4) assign a time and place for a trial setting conference if the case cannot be set as provided in subdivision (c)(3) but can be given a date certain for trial within 120 to 180 days after the arbitration status conference.”

5.  Section 583.310 provides: “An action shall be brought to trial within five years after the action is commenced against the defendant.”

6.  Excerpts from Volume II of the 1991 Annual Report of the Judicial Council of California reveals the following judicial statistics for fiscal year 1989-1990:C1-6“Civil Cases Awaiting TrialC1-6“As of June 30, 1986 through 1990C1-6“Civil cases awaiting trialC1-6“Total as of June 30“198619871988 1989 1990“Statewide Total77,79077,60776,43379,301r86,190L1-6“Mandatory delay reduction program courts“Total62,58661,78159,29661,976r66,189“Alameda4,7164,4834,142 4,051 5,251“Contra Costa9821,0771,224 2,455 1,822“Kern9711,0141,019 1,387 1,575“Los Angeles36,75735,47932,80331,31333,382“Orange5,9517,0086,490 7,602 6,988“Riverside1,2571,1111,101 1,107 3,456“Sacramento2,8783,2731,882 1,870 2,492“San Diego6,1075,7989,141 9,826r 8,451“San Francisco2,9672,5381,494 2,359 2,772”(Emphasis added; “r” denotes “revised.”)Of the nine “mandatory delay reduction program courts,” it is readily apparent that the Los Angeles County Superior Court was cursed with over one-half of the program courts' civil backlog. It is also apparent that trend was toward an increase in the backlog as revealed by the increase in 1990 as compared with the years 1986, 1987, 1988 and 1989.Judicial notice is taken of the aforementioned statistics pursuant to Evidence code section 452, subdivision (h) as follows:“Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: ․ (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

7.  Section 583.410 provides in pertinent part: “(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”Section 36, subdivision (e) provides: “Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference served with the memorandum to set or the at-issue memorandum and accompanied by a showing of cause which satisfies the court that the interests of justice will be served by granting this preference.”

8.  Rule 373(e) of the California Rules of Court lists the various factors a court must take into consideration in ruling on a discretionary motion to dismiss. That rule provides:“In ruling on the motion the court shall consider all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; the diligence in seeking to effect service of process; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature and complexity of the case; the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial; whether the interests of justice are best served by dismissal or trial of the case; and any other fact or circumstance relevant to a fair determination of the issue. The court shall be guided by [the policy of preferring trial on the merits].”

9.  The failure of counsel in this case to monitor the court file is contrasted with the conduct of counsel in our opinion in Schmitt v. Superior Court (1989) 216 Cal.App.3d 453, 264 Cal.Rptr. 806.

1.  Appellant's assumption is well founded. At about the time the complaint was filed in 1984--1985, civil cases filed in Los Angeles County indeed took nearly the full five years to come to trial. Some of the elapsed time was necessarily taken up with preparing the case for trial. However, once ready for trial, and after an at-issue memorandum was filed, the median time to bring a case to trial was 36 months. (1987 Judicial Council of California, Annual Report to the Governor and the Legislature, Table T-37, p. 123.) Because this was the median time, it naturally follows half of the cases took more than this amount of time to come to trial. Appellant filed the at-issue memorandum in December 1985. He could reasonably anticipate trial at or after December 1988. Thus, it makes sense that appellant did not become concerned and contact the court until January 1989.

2.  California Rules of Court, rule 217(b) provides:“The clerk shall give not less than 60 days' notice by mail of the time and place of the trial setting conference in each case to all parties who have appeared unless the parties agree to a shorter time or the court orders the time shortened for good cause shown on noticed motion, and no further notice need be given by any party.”This section has been interpreted to require notice to those parties who have appeared and especially to those parties who have filed at-issue memoranda in the matter. (Biondi, Flemming & Gonzales v. Braham, supra, 218 Cal.App.3d 842, 267 Cal.Rptr. 365.) Respondents filed their own at-issue memorandum together with objections to appellant's at-issue memorandum yet it appears they were not served with notice of the scheduled trial status conference either.

3.  The majority opinion argues that to have granted appellant his motion to specially set the trial court would necessarily have given him preference over attorneys who had “carefully monitored their cases through the five-year statutory period.” In fact, those attorneys probably did not “carefully monitor” their case files to ensure the clerk's office performed properly. Rather, they were merely fortunate the clerk's office did not fail to notify them of hearings, dismissals, etc., or otherwise commit errors which prevented the timely processing and trial of their cases.

JOHNSON, J., filed dissenting opinion.

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