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District Court of Appeal, Fourth District, California.


Civ. 3982.

Decided: July 24, 1950

Hans P. Jepsen, in pro. per. William H. Macomber, Martin & Mahedy, San Diego, for respondents.

Plaintiff commenced the instant action to recover on an alleged oral contract for labor and material furnished in connection with the construction and alteration of improvements on property owned by the defendants and to foreclose a mechanic's lien thereon. A cause of action on quantum meruit was included in the second amended complaint. The action was filed on September 14, 1946, and a judgment of dismissal for failure to prosecute was rendered by the trial court on May 26, 1949, about two years and six months after the filing of the complaint. The motion to dismiss was heard on affidavits and files and records in the action. No testimony was taken and there is no reporter's transcript. The clerk's transcript reflects the filing dates of various documents and pleadings involved, as follows:

September 14, 1946—Complaint filed.

October 11, 1946—Demurrer to complaint.

December 22, 1947—Amended complaint.

January 2, 1948—Demurrer to amended complaint.

January 23, 1948—Amended demurrer.

February 13, 1948—Amended demurrer sustained.

March 9, 1948—Second amended complaint.

March 18, 1948—Demurrer to second amended complaint.

April 7, 1948—Amended demurrer.

June 16, 1948—Answer.

July 6, 1948—Memorandum for setting case on civil active list.

July 8, 1948—Demand for jury filed by defendants.

May 20, 1949—Notice of motion to file amended answer and cross-complaint.

Demand for bill of particulars.

Notice of motion to dismiss for failure to prosecute.

May 26, 1949—Judgment of dismissal for failure to prosecute rendered.

The sole question for our determination is whether the trial court abused its discretion in dismissing the action when it had not been brought to trial for more than two years after the commencement thereof.

Two code sections are applicable:

Section 583, Code of Civil Procedure: ‘The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial, * * * except where the parties have filed a stipulation in writing that the time may be extended * * *.’

Section 1190, Code of Civil Procedure: ‘* * * and in case such proceedings be not prosecuted to trial within two years after the commencement thereof, the court may in its discretion dismiss the same for want of prosecution * * *.’

The rule is well settled that the power of a trial court to dismiss an action for failure on the part of the plaintiff to prosecute it with diligence is an inherent power which exists without the aid of statutory authority and that the provisions of section 583 of the Code of Civil Procedure and of other related sections must be read in the light of the existence of such inherent power. Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 268, 193 P.2d 53; Steen v. The City of Los Angeles, 31 Cal.2d 542, 546, 190 P.2d 937. It is also well settled that the action of the trial court in dismissing an action for failure to prosecute diligently should not be disturbed except upon a showing of clear abuse of discretion, and it is immaterial whether the trial court was acting under its inherent power or under the provisions of section 583 of the Code of Civil Procedure. Hibernia Sav. & Loan Soc. v. Lauffer, 41 Cal.App.2d 725, 729, 107 P.2d 494.

It is conceded that the present action was not brought to trial within two years after the filing of the complaint. The only affidavit in opposition to the motion to dismiss is that of the attorney for the plaintiff. It is stated therein, among other things, that on the 12th of October, 1946, the affiant was served with a demurrer filed by the defendants and prior to the hearing thereof on November 2nd, the affiant advised the defendants' attorneys that one of the points of the demurrer was good and that, therefore, the plaintiff would file an amended complaint. It is further stated that from December, 1946, to February, 1947, affiant and one of defendants' attorneys attempted to arrange a conference between the principals to the action; that the conference occurred during the month of February, at which time defendants agreed to engage an independent architect, who would go over the details of the work and make a report thereon; that the report was received in the latter part of March, 1947; that from December, 1946, to May, 1947, affiant and defendants' attorneys were hopeful that a settlement might be reached and a compromise of the litigation affected. There is no suggestion in the affidavit or in the record before us that a continuance was agreed upon or that any of the rights of the defendants to have the matter brought to trial within the statutory period were waived. The affidavit further sets forth that the demurrers were argued before the court on or about February 13, 1948 and plaintiff was then advised of the court's decision sustaining the demurrers in part and granting plaintiff leave to file an amended complaint; that plaintiff then on March 9, 1948, filed his second amended complaint, to which the defendants demurred and also filed their answer on or about June 15, 1948; that immediately thereafter a notice of motion to set the cause for trial was served and filed; and that the defendants demanded a jury trial. On information and belief the affiant averred that due to the demand for a jury having been filed and the congested and crowded condition of the trial calendar, it was impossible for the court to set the case for trial prior to May 26, 1949. In this connection it should be noted that there is no suggestion in the affidavit or in the record that the plaintiff asked for a preferential setting or endeavored in any manner to advance the trial date of the action. The affidavit does not contain facts sufficient to show an abuse of discretion on the part of the trial court in concluding that plaintiff had not prosecuted the action to trial with due diligence.

The first amended complaint was not filed until December 22, 1947, one year and three months after the filing of the action. Plaintiff attempts to account for this delay with the statement that negotiations for settlement were being carried on. There is nothing in the record to indicate that defendants waived their rights to a dismissal of the action by efforts to obtain a settlement or that they agreed to any extension of the time within which the action should be tried. The statement in the affidavit that the attorneys for the parties ‘were hopeful’ that a settlement could be affected is of no value as an excuse for plaintiff's failure to exercise due diligence.

In Hayward Lumber & Inv. Co. v. Greenwalt, 215 Cal. 655, 12 P.2d 445, in an action to foreclose a mechanic's lien, dismissed by the court, where two years and three months had elapsed after the institution of the action and the matter had not been brought to trial, the court held that it was the duty of the plaintiff to take measures to have demurrers determined and to use due diligence in this respect, the failure to do so being grounds for dismissal of the action.

In the instant case, the plaintiff's pleadings were subject to demurrer and the delay incident to the filing of the demurrers can in no wise be charged against the defendants. Such delays are not sufficient to stay the running of the two-year statutory period.

The motion herein was heard on the records and files in the action and on conflicting affidavits and it must be assumed that the court below found the facts to be as asserted by the moving and prevailing party. Lieb v. Lager, 9 Cal.App.2d 324, 326, 327, 49 P.2d 886.

The filing of the lien herein and the institution of foreclosure proceedings created a cloud on the title of defendants' property. They were entitled to have as speedy disposition of the action as was consistent with their own and the rights of the plaintiff.

Where, as here, the court found that plaintiff did not with reasonable promptness pursue all the steps necessary to bring the litigation to an end, he should suffer the penalty of his default. Bronger v. Polytechnic School, 60 Cal.App.2d 656, 658, 141 P.2d 480.

While we would have favored a trial on the merits, on the record before us, we are unable to hold as a matter of law that an abuse of discretion appears.

Judgment affirmed.

On Rehearing

This action was brought on September 14, 1946, to recover a balance due on an oral building contract, and to foreclose a lien on defendants' property. A cause of action on quantum meruit was included by amendment. The record shows the following proceedings: A demurrer was filed on October 11, 1946, and an amended complaint December 22, 1947. A demurrer filed on January 2, 1948, was amended January 23, and sustained with leave to amend on February 13. A second amended complaint was filed on March 9, a demurrer March 18, and an amended demurrer on April 7. On June 16, 1948, an answer was filed. On July 6, the plaintiff filed a request to have the case set for trial, and on July 8 the defendants demanded a jury. The court set the case for trial on May 26, 1949.

On May 20, 1949, the defendants served and filed notice of a motion to dismiss the action for failure to prosecute, under sections 583 and 1190 of the Code of Civil Procedure, in that it had not been brought to trial within two years. At the same time they noticed a request for permission to file an attached amended answer and a cross-complaint. Both motions were noticed for May 26, the day the action was to be tried. The court granted the first motion and entered a judgment dismissing the action ‘but without prejudice to such other actions, if any there be, legally available to plaintiff.’ This appeal followed.

It is well settled that a court has an inherent and statutory power to dismiss an action for a failure to prosecute it with diligence; and that its action should not be disturbed unless an abuse of discretion clearly appears. However, the two years mentioned in these statutes is not an arbitrary limit to be followed in all cases, but was intended as a general guide in determining whether or not a ‘want of prosecution’ appears and, if so, whether this power should be used in view of the entire situation. This discretion is one controlled by legal principles and is to be exercised in accordance with the spirit of the law and with a view to subserving, rather than defeating, the ends of substantial justice. Raggio v. Southern Pacific Co., 181 Cal. 472, 185 P. 171. Each case must be decided on its own peculiar features and facts. First National Bank of San Diego v. Nason, 115 Cal. 626, 47 P. 595. It is a well established policy of law to favor the avoidance of litigation by compromise. Hamilton v. Oakland School Dist., 219 Cal. 322, 26 P.2d 296. While not always controlling, this sometimes has an important bearing. In Ferris v. Wood, 144 Cal. 426, 77 P. 1037, an order of dismissal was reversed, it appearing that the debt was owed, and that the delay occurred through the plaintiff's desire to effect a compromise. The court held that an excuse for the delay reasonably appeared and that in such a matter, unlike some others, a trial judge is in no better position than an appellate court in determining whether substantial justice has been done. The court then expressed the opinion that the dismissal there involved had tended to defeat, rather than to subserve, the ends of substantial justice.

It was stated at the oral argument, and not denied by their counsel, that during the negotiation the defendants had offered to pay the plaintiff $2,500. While this was not before the trial court, the pleadings in the record strongly indicate that a considerable amount was justly due. The complaint alleged an oral contract, in February, 1946, by which plaintiff was to furnish materials and do certain remodeling and construction work, as directed by defendants, on a cost plus basis; that he proceeded with the work and followed instructions until June 7 when he was directed to cease work; and that a balance of $9,066.42 is due. In their answers the defendants denied making any agreement, that the plaintiff had done any work, and that any material or labor had been furnished. In their cross-complaint they alleged the making of an oral contract by which the plaintiff agreed to do certain remodeling and construction work; that he commenced work on February 10 and abandoned it on June 6, when it was only partially completed; and that they caused the work to be completed at their own expense, it being necessary to correct ‘certain errors, defects and omissions.’ There is no allegation of any original contract price, or of any price for any particular part of the work. While it is alleged that ‘certain’ corrections were made, nothing is said as to their cost. While it is alleged that additional work was done, there is nothing to indicate that the work done by the plaintiff during four months was of no value. Except for the corrections, which may have been slight, there is nothing to indicate that most of plaintiff's work should not be paid for, or that the defendants' total cost would then be more than it otherwise would have been. The pleading is somewhat evasive, and leaves a distinct impression that while a partial offset was claimed a large amount was justly due the plaintiff.

Aside from the pleadings, two affidavits only appear in the record. The one in support of the motion to dismiss is devoted entirely to the matter of prejudice in that two witnesses, who were employed on the job, had left town. It goes unduly into the merits of the case by reciting in great detail what these witnesses would testify. The other, by plaintiff's then attorney, alleged among other things that the parties were trying to settle the controversy and the defendants agreed to, and did, engage an architect to inspect and report on the work; that from December, 1946, to December, 1947, affiant and defendants' attorneys hoped and thought that a settlement could be effected and further litigation avoided; that when an answer was finally filed a request for setting was immediately made; that because of defendants' demand for a jury, and the congested calendar, ‘it was impossible for said court to set the case for trial prior to May 26th, 1949’; that a large number of workmen who were employed on this job are available to defendants as witnesses, if two others are not; and that affiant is willing to stipulate to the taking of a deposition. The facts thus stated were not disputed or otherwise contradicted.

In most of the cases where such a dismissal has been sustained either nothing was done by the plaintiff or no valid excuse for the delay was shown, and no unusual circumstances appeared. Unreasonable delay in litigation should be avoided, but all the circumstances should be carefully considered before a plaintiff is denied relief without a hearing. While it appears here, technically, that more than two years had elapsed before the trial date and that some of the delay was probably unnecessary, the excuse for the delay is not entirely unreasonable and there are other considerations which should not be overlooked.

One circumstance is that the main defendant is a judge of the same court. ‘Period.’ Most of the delay occurred before the first amended complaint was filed, and while both sides believed that a settlement could be reached. Much more was caused by the defendants and as a result of four demurrers filed, three of which were never heard. While this is not controlling it is one of the circumstances. When an answer was filed the plaintiff moved at once, and well within the two years, to set the case for trial. The defendants' demand for a jury, while rightful, naturally caused an additional delay. In response to the timely request thus made the court set the case for trial, the first available date being beyond the two-year period. Nothing was then done until, at the last minute, notice was given of a motion to dismiss. Moreover, this was accompanied by a desired cross-complaint which materially changed the picture. It thus appeared at the hearing that a large amount of work had admittedly been done, and that a substantial amount was probably due. The court clearly recognized this, by making the order of dismissal without prejudice to seeking other relief if this could possibly be done. The order appears to have resulted from a feeling that it was required by these statutes, rather than from an exercise of real discretion.

The circumstances here were unusual, all of them should be considered, and an unjust effect should not be given to this procedural rule, which is merely optional. The defendants may owe the plaintiff nothing, but under the circumstances substantial justice requires that this issue should be determined by a trial on the merits. The drastic order made is not sustained by the record before us, and an abuse of discretion clearly appears.

The judgment of dismissal is reversed.

MUSSELL, Justice.

BARNARD, P. J., concur.GRIFFIN and MUSSELL, JJ., concur.

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