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

K. WOLEY, Plaintiff and Appellant, v. Stanley Philip TURKUS, also known as Stanley P. Turkus and sometimes known as S. Turkus, Philip Turkus and P. Turkus, Defendant and Respondent.*

Civ. 17652.

Decided: August 11, 1958

Abraham Setzer, San Francisco, for appellant. Charles O. Morgan, Jr., San Francisco, for respondent.

Plaintiff has appealed from a judgment dismissing the action pursuant to section 583 of the Code of Civil Procedure, for her failure to bring it to trial within the five-year period, as extended by stipulation in writing.

The judgment found and declared that ‘there has been an inexcusable delay of more than five (5) years after the filing of said action and that there was a stipulation in writing between the parties extending the time to bring said action to trial to the 13th day of January, 1956 and not thereafter, and said action not having been brought to trial on January 13, 1956, and good cause appearing therefor, it is hereby ordered, adjudged and decreed that the above-entitled action be, and the same is hereby, dismissed. * * *.’

There is evidence that supports this judgment and some which tends not to do so. That conflict was resolved against the plaintiff by the trial court. Since the supporting evidence is substantial there would be nothing for a reviewing court to do but to affirm, save for the consideration that should be given to the written stipulation mentioned in the judgment, construed therein as extending the time of trial to a date certain only, and not beyond that date.

It appears without dispute that the action was filed Decemver 28, 1950, and the answer on February 2, 1951. It was not until December 9, 1955, that plaintiff filed a memorandum to set for trial, at the same time giving notice of a motion for summary judgment. Both matters were set for December 27, 1955.1 Meanwhile, defendant's counsel represented that this was too short a time within which to prepare adequately, and requested a continuance. On December 22 the parties made and on December 27 filed the following stipulation in writing: ‘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 Code of Civil Procedure. The defendant above named having requested the same, it is hereby stipulated and agreed between the undersigned attorneys for the respective parties hereto that Plaintiff's Motion For A Summary Judgment, and the Trial of the above entitled action, now set for the 27th day of December, 1955, at the hour of 9:45 o'clock in the forenoon of said day, before the above entitled Court, in the Presiding Judge's Department, located in the County Court House, in the City of Redwood City, County of San Mateo, State of California, be continued to the 13th day of January, 1956, at the same hour and place, 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 Code of Civil Procedure.'2

Plaintiff contends that this stipulation, in the light of attendant circumstances, operated as an extension beyond the five-year period of the time within which to try the case, to a reasonable period of time after the hearing and determination of her motion for summary judgment. The trial judge did not so view it, and we see no basis in the record for overruling his interpretation or his decision.

First, by this stipulation the parties continued the motion and the trial to a date certain. Next, they waived further notice of the motion and of the trial (literally construed, this refers to the date certain, January 13). They then concluded with the words ‘and consenting thereto after the lapse of the five year period prescribed by section 583 * * *.’ What did they mean by ‘thereto’? Conceivably, they meant the ‘continuance’ of the motion and the trial to January 13, 1956. Thus, the fair intendment of this stipulation was to extend to January 13, 1956, the time within which the action could be brought to trial, despite the expiration of the five-year period. If a different intent could possibly be derived from the wording of the stipulation, we would have an ambiguity which should be resolved against the plaintiff as the party who prepared the stipulation. The trial judge had this principle as an aid to his interpretation. He also had the function of resolving conflicts in the evidence furnished by the opposing affidavits, a function which a reviewing court does not possess. His ruling can not be disturbed.

Plaintiff in aid of her interpretation of the stipulation narrates the following events: The motion for summary judgment and the trial were on the calendar on December 27. Defendant had requested further time to prepare. Accordingly, the stipulation was executed and filed. On January 13, the motion was heard and ordered submitted, subject to the subsequent filing of further papers by the parties; and the trial was continued to February 10. It happened that the motion was decided March 27 by an order denying summary judgment. On April 2 the clerk gave notice that on April 11th the court would reset the trial for a date certain, and it was reset for May 25. Upon the latter date, there being no trial department available, the trial was continued to June 20, and, later, for the same reason, to June 28. Meanwhile, on June 5, defendant gave notice of his motion to dismiss, which was heard on June 12 and decided by judgment of dismissal filed June 28, 1956.

Construing the stipulation in the light of these events, plaintiff argues: The reasonable intendment of the stipulation was that the motion be heard before the trial be conducted; i. e., if the motion were to be granted there would be no occasion for a trial, also the stipulation mentions the motion ahead of the trial.

We find nothing in the record upon which to base a reversal by a reviewing court of the implied finding by the trial court that such was not the actual intent and understanding of the parties. The mere order of mention of the motion and the trial, in the stipulation, is too slender a basis for us to say that by this stipulation the parties agreed in writing that the motion be heard and disposed of prior to the commencement of the trial.

The cause was on the calendar for trial on December 27. There was no real necessity for deciding the motion prior to holding the trial. Plaintiff could (on December 27 or January 13) have put a witness on the stand. After asking the witness a few questions, plaintiff would have satisfied the five-year mandate of section 583. She could then have requested or consented to postponement of further conduct of the trial until the motion had been heard and determined.

The sole remaining question is whether by bringing her motion to a hearing on January 13, 1956, plaintiff brought the action to trial. If so, she did bring the action to trial within the time to which the five-year period had been extended by stipulation in writing. We think not.

Berri v. Superior Court, 43 Cal.2d 856, 859–860, 279 P.2d 8, 11, reviewed the question of when a ‘trial’ has been had within the meaning of Code of Civil Procedure, section 583, when proceedings other than a commencement of a trial on the merits have taken place. Its conclusion was that the ‘essential thing is that the action be brought to a stage where final disposition is to be made of it.’ This was not done within the necessary time in this case.

The judgment is affirmed.


1.  A minute order of December 15, 1955, declares: ‘Motion to advance and fix a day certain for trial * * * Motion granted and trial set for December 27, 1955.’

2.  Respondent in his brief states that plaintiff-appellant prepared the stipulation. This statement is neither denied nor questioned in plaintiff's closing brief.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.

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