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FARRAR v. McCORMICK

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Court of Appeal, Second District, Division 4, California.

Chester F. FARRAR, Plaintiff and Appellant, v. James E. McCORMICK, Defendant and Respondent.

Civ. 39087.

Decided: May 18, 1972

Wolver & Wolver, and Rudolph Pearl, Los Angeles, for plaintiff and appellant. Gibson, Dunn & Crutcher, and John H. Sharer, Los Angeles, for defendant and respondent.

Plaintiff appeals from a dismissal of his action, entered 29 Mar 71. After such judgment of dismissal (Code Civ.Proc. s 581d) was entered, plaintiff filed a ‘motion to reconsider’ which was denied 19 Apr 71. Plaintiff purports also to appeal from that order of denial.

The events pertinent to disposition of this appeal are: plaintiff's complaint was filed 3 May 66; defendant filed his answer to it 3 Jun 66; on 8 May 68 plaintiff filed an ‘At-Issue Memorandum and Certificate of Readiness' wherein it was certified that discovery was complete; a settlement conference was set for 27 Nov 68 and thereafter was continued six times until 9 Feb 70 when it was ordered off calendar because of nonappearance by plaintiff. Over a year afterwards, on 17 Mar 71, plaintiff filed a motion to specially set the case for trial before the expiration of five years from filing which would have required a mandatory dismissal. (Code Civ.Proc. s 583(b).) The next day, 18 Mar 71, defendant filed a motion to dismiss under the discretionary provisions of Code of Civ.Proc. s 583(a), noticing it to be heard on the same day as plaintiff's motion, namely, 29 Mar 71. Defendant secured an order shortening the time for service of his notice of motion upon plaintiff. As noted herein, the court granted defendant's motion and dismissed the action on 29 Mar 71.

Plaintiff's attack upon the judgment of dismissal is not meritorious. In essence, it asks us to reweigh the parties' declarations and to disagree with the trial court's conclusions.

In Denham v. Superior Court, 2 Cal.3d 557, 86 Cal.Rptr. 65, 468 P.2d 193 (1970) and Martindale v. Superior Court, 2 Cal.3d 568, 86 Cal.Rptr. 71, 468 P.2d 199 (1970) the Supreme Court considered denials of discretionary motions to dismiss. In Denham, the court stated (2 Cal.3d pp. 563—564, 86 Cal.Rptr. p. 69, 468 P.2d p. 197): ‘Under section 583, subdivision (a), of the Code of Civil Procedure, the trial court, in its discretion, may dismiss an action for want of prosecution if it is not brought to trial within two years after it was filed. The statute places no restrictions on the exercise of the trial court's discretion . . . ‘The discretion is that of the trial court and it will be disturbed only in cases of manifest abuse.‘‘

After the Denham case, Lowe v. Thomas, 11 Cal.App.3d 867, 90 Cal.Rptr. 202 (1970), affirmed a dismissal granted by the trial court, the Court of Appeal stating (pp. 869—870, 90 Cal.Rptr. p. 203): ‘A plaintiff may show good cause for delay and if the cause is reasonable, in a legal sense, dismissal would constitute an abuse of discretion on the part of the trial judge. (Citations.) However, the burden is upon a plaintiff to justify his delay in bringing the case to trial . . . and it is his duty ‘at every stage of the proceedings to use diligence to expedite his case to a final determination.’ . . . ‘Section 583 Requires a dismissal of an action if it is not brought to trial within five years after it is commenced, and Authorizes a dismissal, within the discretion of the trial court if it is not brought to trial within two years. As the time passes from two years nearer and nearer to five, the showing required to justify a failure to bring a case to trial grows greater and greater.‘‘

In Dunsmuir Masonic Temple v. Superior Court, 12 Cal.App.3d 17, 90 Cal.Rptr. 405 (1970) a writ of mandate was issued requiring the trial court to dismiss the action. The court stated (p. 21, 90 Cal.Rptr. p. 407): ‘The distinction appears to be the difference between an Adequate showing and Any showing. Although Denham removes from the plaintiff any Burden to show good cause for delay, it does not remove plaintiff's obligation to make Some showing of good cause before the court, upon which the court may exercise its discretion. We construe that to mean that the trial court may not act arbitrarily and deny the motion when plaintiff has made no relevant showing whatever. There must be Something upon which a discretion can rest.’

The declaration filed in the present case, in support of defendant's motion to dismiss, recited the chronology of events mentioned herein, adding that on 24 Jan 69 a settlement conference began before a judge who stated to counsel that discovery was not complete and that it should be undertaken, particularly by plaintiff; the conference accordingly was continued, thereafter being continued several times until 9 Feb 70 when it was placed off calendar; plaintiff undertook no discovery measures at all.

The opposing declaration filed by plaintiff's attorney explained that no discovery occurred in 1967 because the litigants were, personally, discussing settlement prospects; plaintiff's counsel disagreed with the judge at the hearing of 24 Jan 69, believing that discovery was unnecessary; on 8 Feb 70 he was in an accident which disabled him for several weeks so that he could not appear at the settlement conference scheduled the next day, 9 Feb 70. On 4 Apr 70 he moved his offices, causing ‘confusion’ for several months before and after that date.

Plaintiff's declaration does not explain or justify a delay of nearly five years in bringing the case to trial nor does it explain or justify the inaction of thirteen months from 9 Feb 70 to 17 Mar 71 on which latter date plaintiff filed his motion specially to set the case for trial. Even viewing the declared facts most strongly in plaintiff's favor, we cannot say the trial judge abused his discretion in granting defendant's motion to dismiss.

Appellant next challenges the propriety of any order shortening time for service of a motion to dismiss. He refers us to Rule 203.5, California Rules of Court, authorized by Code of Civ.Proc. s 583, subd. (a). That rule states in part: ‘(a) A party seeking dismissal of a case pursuant to subdivision (a) of Section 583 . . . shall serve and file a notice of motion therefor at least 45 days before the date set for hearing of such motion . . .. The filing of the notice of motion shall not preclude the opposing party from further prosecution of the case to bring it to trial.’ Appellant contends this rule establishes a mandatory requirement of 45 days' notice and that no shortening of time is authorized.

Section 1005 of the Code of Civ.Proc. states: ‘When a written notice of a motion is necessary, it must be given at least 10 days before the time appointed for the hearing. The court, or a judge thereof, may prescribe a shorter time.’ (Emphasis added.) We are directed to neither case nor statute indicating that the statutory authority to shorten time was intended not to apply to motions made under Code of Civ.Proc. s 583, subd. (a). The increase from 10 days' to 45 days' notice accomplished by Rule 203.5 was intended to afford a plaintiff ample time within which to complete any necessary preparation and move to set his case for trial, if so inclined. Here, plaintiff already had such a motion on file, so that he was unaffected by the shortened notice of defendant's motion; he suffered no prejudice thereby.

Additionally, no objection was made by the plaintiff to the trial court's hearing of the motion. To the contrary, the record indicates plaintiff appeared to oppose the motion. Any defect in its timeliness thus was waived by the appearance; the purpose of giving notice accordingly was satisfied. (Lacey v. Bertone, 33 Cal.2d 649, 651, 203 P.2d 755 (1949); McConaghy v. McConaghy, 239 Cal.App.2d 601, 48 Cal.Rptr. 845 (1966), appeal dismissed 385 U.S. 536 87 S.Ct. 761, 17 L.Ed.2d 592 (1967); Chapman v. Gipson, 103 Cal.App.2d 585, 587, 229 P.2d 834 (1951); 4 Witkin, Cal.Procedure 2d ed. 2683 ‘Proceedings Without Trial’ s 7.) Furthermore, plaintiff made no motion to set aside the order of dismissal on the ground it was improvidently made because of lack of sufficient notice. (Armstead v. Jackson, 100 Cal.App. 725, 729, 280 P. 1028 (1929).)

Appellant's challenge to the order shortening time is without merit.

We now weigh plaintiff's appeal from the order denying his motion to reconsider. No statutory or other authority exists for a bare ‘motion to reconsider’ (Dunas v. Superior Court, 9 Cal.App.3d 236, 239, 87 Cal.Rptr. 719 (1970)). Here, so far as can be told, plaintiff merely renewed his previous opposition to defendant's motion to dismiss, asking the court to think about its ruling once again. No appeal lies from an order denying such motion. A judgment of dismissal is appealable (Code Civ.Proc. s 904.1(a)) and to permit a party to appeal from an order denying a bare motion to reconsider would give that party two appeals from the same decision.

However, a motion made on new grounds, asking the court to vacate its order, is an appropriate motion; an appeal from denial of such motion may be had if the circumstances are appropriate, as where a motion, made pursuant to Code of Civ.Proc. s 473, is based upon ‘mistake, inadvertence, surprise or excusable neglect.’ (Winslow v. Harold G. Ferguson Corp., 25 Cal.2d 274, 282, 153 P.2d 714 (1944); 6 Witkin, Cal.Procedure 2d ed. 4098—4102 ‘Appeal’ ss 91—94.) The rationale is explained in Daley v. County of Butte, 227 Cal.App.2d 380, 388—389, 38 Cal.Rptr. 693, 698 (1964): ‘An order of dismissal for lack of prosecution is a final judgment which may be attacked by a direct appeal. . . . If the ejected plaintiff has appropriate factual support, he may choose not to appeal but to attack the judgment in the trial court by moving to vacate it under Code of Civil Procedure, section 473. . . . Although plaintiff had an appeal from the dismissal, she now attacks it circuitously through the avenue of an appeal from the order refusing to vacate. As a general rule, such an order is not appealable. . . . The theory is that a plaintiff may not utilize an appeal from an order refusing to vacate as an indirect means of attacking an appealable order of dismissal. (Par.) A party seeking under section 473 to relieve himself of a dismissal injects into the case new elements of mistake, inadvertence, surprise and excusable neglect. Newly revealed facts, or the hitherto unrevealed impact of known facts, may demonstrate that the moving party was effectually deprived of a meaningful opportunity to defend against the original motion. These newly revealed circumstances may also persuade the trial court that the dismissal should not have been ordered, that it would not have been ordered had the plaintiff an opportunity to present the circumstances to the court in the first instance. Thus, the discretion of the trial court in disposing of the motion to vacate will be affected or controlled by facts not before it on the original hearing . . .; and the action of the appellate court will be based upon a record not available to the plaintiff had he appealed from the dismissal itself. (Par.) . . . Under these circumstances, where a direct appeal from the dismissal is relatively ineffectual, the order refusing to vacate the dismissal is appealable.’

Appellant's notice of motion stated: ‘Said motion will be made on the grounds that certain material facts were not before the Court when said order was granted, which facts are reflected in the attached Declaration of Chester F. Farrar.’ Although plaintiff's motion contains no reference (Code Civ.Proc. s 1010) to section 473, we will assume that his declaration and motion sought, as he now claims, to rely upon the benefits of Code of Civ.Proc. s 473. (Hecq v. Conner, 203 Cal. 504, 506, 265 P. 180 (1928); Fink & Schindler Co. v. Gavros, 72 Cal.App. 688, 691, 237 P. 1083 (1925).) The declaration of Farrar neither states anything new nor does it state any fact which was not known at the time plaintiff opposed defendant's motion to dismiss. It merely states that he and defendant McCormick discussed settlement possibilities in 1967, a fact set forth in his attorney's earlier declaration. Mistake, inadvertence, surprise or excusable neglect are not shown.

Appellant additionally argues that his motion to reconsider should be considered as a motion for new trial, contending that denial of such a motion is appealable. So viewed it is not appealable. Only an order granting, not denying, a new trial is appealable. (Code Civ.Proc. s 904.1(d).)

The court's order denying appellant's motion to reconsider was proper; it lay well within the trial court's discretion. Ordinarily, we would dismiss an appeal from a bare motion to reconsider. However, viewing appellant's motion as constituting what he contends it represents, we do not dismiss the appeal from the order; rather, we affirm the judgment of dismissal and the subsequent order denying reconsideration.

DUNN, Associate Justice.

JEFFERSON, Acting P.J., and KINGSLEY, J., concur.

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