MARTINDALE v. ERWAY

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Court of Appeal, Second District, Division 2, California.

Julia Kincald MARTINDALE, Petitioner, v. SUPERIOR COURT OF the State of California for the COUNTY OF LOS ANGELES, Respondent. Edgar F. ERWAY, as Administrator of the Estate of Aileen Curtis Erway, deceased, Real-Party in Interest.

Civ. 34957.

Decided: November 24, 1969

Lasky, Battaglia & Levinthal, and Jack M. Lasky, Los Angeles, for petitioner. John D. Maharg, County Counsel and Douglas C. Miller, Deputy County Counsel for respondent. Newton & Irvin, Los Angeles, and Geo. W. Rochester, La Habra, for real party in interest.

The petitioner Julia Kincaid Martindale has filed a petition for a writ of mandate to set aside the trial court's order denying petitioner's motion to dismiss the petition for revocation of probate for failure to bring such matter to trial within two years.

The petitioner is the executrix of the will of Lucy May Wygant. On January 21, 1964 the petitioner filed a petition for probate of the will of Lucy May Wygant. Notice of the hearing on the petition for probate was mailed to Mrs. Edgar F. Erway on February 19, 1964.

The hearing on the petition for probate of will was held on March 9, 1964. The order admitting the will to probate was issued on March 16, 1964.

On September 4, 1964 (5 months and 19 days after the will was admitted to probate) Edgar F. Erway, the real party in interest, filed his Petition for Revocation of Probate of Purported Will and Codicils.

No further action occurred with reference to Mr. Erway's petition for over three years and four months. On March 11, 1968, a notice of hearing for setting of contested action was filed by Mr. Erway setting March 15, 1968 as the hearing date on the motion to set.

When the matter was called on March 15, 1968, the trial judge advised Mr. Erway's attorney, Ralph Hoffman, that he would get an immediate trial date. The court was advised that both sides were not prepared to go to trial. The court then placed the matter off calendar. No further action was taken concerning Mr. Erway's petition through his then attorney of record, Ralph Hoffman.

On February 21, 1969, Mr. Erway filed notice of a substitution of attorneys replacing Ralph Hoffman with his present counsel, George Rochester.

On March 1, 1969, George Rochester filed a ‘Notice of Trial Setting Hearing’ and asked for a hearing for March 14, 1969.

On March 14, 1969, the attorney for the executrix appeared but George Rochester failed to appear. Accordingly, the matter was placed off calendar.

On March 19, 1969, George Rochester filed a new notice of trial setting hearing which was scheduled for April 11, 1969. On that date the matter was continued to May 2, 1969 for hearing.

On April 17, 1969, Julia Kincaid Martindale filed a notice of motion to dismiss pursuant to Code of Civil Procedure, section 583.

Prior to the hearing date on the motion to dismiss, George Rochester and Ralph Hoffman filed declarations in opposition to the motion to dismiss.

The motion to dismiss was heard on June 10, 1969. On that date a second declaration was filed by Ralph Hoffman. The motion to dismiss was denied, and the matter was set for trial on August 25, 1969.

THE EVIDENCE SUBMITTED IN OPPOSITION TO THE MOTION TO DISMISS

Before ruling on the motion to dismiss the trial judge had before him the following evidence concerning the question of due diligence:

1. The affidavit of George Rochester.

Sometime after Mr. Rochester became the attorney for Mr. Erway on November 12, 1968, three persons were interviewed whose testimony would establish that the decedent Lucy May Wygant was incompetent when she executed two codicils to her will. The deposition of Julia Kincaid Martindale was scheduled for March 26, 1969 but was delayed because of conflicts in the schedule of Mrs. Martindale's attorney, Jack M. Lasky.

2. The first affidavit of Ralph W. Hoffman.

A request for setting of the probate contest was filed on or about February 1, 1968. When the matter was called on March 15, 1968 both sides believed that it was a setting hearing. The trial judge advised counsel that the case could be sent out for trial immediately. The trial court was advised that the case was not ready for trial. The trial judge placed the matter off calendar and asked that the contestant ‘file a further resquest for setting when we were prepared for trial.’ (Emphasis added.)

3. The June 10, 1969 affidavit of Ralph W. Hoffman.

In 1965 after the contest had been filed by Mr. Erway counsel for the contestant became aware of another court action involving Julia Kincaid Martindale. Upon conferring with attorney Robert Sease, Mr. Hoffman was advised that Mr. and Mrs. Charles Martindale had made reciprocal wills leaving the residue of their estate to the Shrine Hospital for Crippled Children. After Mrs. Charles Martindale's death, Julia Kincaid married Charles Martindale. She obtained a power of attorney from Mr. Martindale as the result of which $96,000 worth of stock was sold. After the death of Charles Martindale, Julia Kincaid Martindale filed a new will in which Julia Kincaid Martindale was substituted for the Shriner's Hospital as residual beneficiary. Mr. Hoffman's investigation revealed that Julia Kincaid Martindale had also obtained a power of attorney from Mrs. Wygant and that Mrs. Martindale ‘had Mrs. Wygant make two codicils to her will’ both naming Julia Kincaid (Martindale) as beneficiary.

Upon learning the foregoing, counsel for the contestant determined that depositions should be taken. Mr. Hoffman's declaration alleges that the contestant, Mr. Erway, advised Mr. Hoffman ‘that he was in need of all the money he could gather at that time for an operation on his eyes,’ (emphasis added) and that Mr. Hoffman should obtain all the information possible from the will contest action brought by the Shriner's Hospital in the probate of the estate of Charles Martindale. Mr. Hoffman advised the attorney for the Shriner's Hospital he would attend the trial so as to use that case as means of discovery in the Wygant contest. Mr. Sease, the attorney for the hospital advised Mr. Hoffman that he would make ‘all information from that case available.’ The contest brought by the Shriner's Hospital was originally set for trial on June 8, 1966, however, it was continued until 1967. On that date because of Mr. Sease' illness the matter was continued until January 30, 1968. Mr. Hoffman was informed on January 29, 1968 that Mr. Sease had expired on January 13, 1968. The Shriner's Hospital will contest was continued until July 10, 1968. Upon learning of the July trial setting date for the Shriner's Hospital will contest action, Mr. Hoffman filed a notice for the setting for hearing of the Erway will contest petition. The declaration concludes with the explanation that the reason for the delay in the setting of hearing of the Erway will contest petition was the similarity of the two contest matters and the anticipated cooperation of Mr. Sease. The death of Mr. Sease ended ‘the value of the personal relationship with said attorney’ and for that reason a notice to set was filed.

At the hearing on the petitioner's motion for a dismissal no further evidence was presented to the court. The court was not requested to take judicial notice of any fact of the contents of the file in the Lucy May Wygant matter nor of the contents of the file in the contest brought by the Shriner's Hospital concerning the will of Charles Martindale.

No reason was offered by the trial court in denying the motion to dismiss.

ISSUES PRESENTED BY THE PETITION

1. Was the evidence presented to the trial judge sufficient to establish an excuse for the failure to bring the action to trial within two years?

2. Do the two-year provisions of section 583 of the Code of Civil Procedure apply to a will contest?

The evidence was legally insufficient to show excusable delay.

Section 583 of the Code of Civil Procedure insofar as it is pertinent to this matter provides in part:

‘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, * * *.’

When a motion is filed to dismiss an action pursuant to section 583 the plaintiff has the burden of producing legally sufficient evidence that he has exercised due diligence in prosecuting the action he has initiated, or that the delay in excess of two years is excusable. (Market-Front Co. v. Superior Court,a 271 Cal.App.2d ——, 76 Cal.Rptr. 526; Breckenridge v. Mason, 256 Cal.App.2d 121, 127, 64 Cal.Rptr. 201; Bonelli v. Chandler, 165 Cal.App.2d 267, 270, 331 P.2d 705; Sprajc v. Scandinavian Airlines Systems, Inc., 240 Cal.App.2d 935, 938, 50 Cal.Rptr. 181.) The party initiating the action has the responsibility of using due diligence at every stage of the proceedings to expedite the action to its final determination (Raggio v. Southern Pacific Co., 181 Cal. 472, 475, 185 P. 171; Rodde v. Trousdale Constr. Co.,b 276 Cal.App.2d 419, 80 Cal.Rptr. 774.)

Under section 583 the trial court is given the responsibility of reviewing the evidence produced by the party who initiated the action to determine if the evidence justifies the exercise of its discretionary powers to deny the motion to dismiss. The decision of the trial judge on a motion to dismiss pursuant to section 583 will be disturbed only in cases of manifest abuse. (Bonelli v. Chandler, 165 Cal.App.2d 267, 268, 331 P.2d 705.) In exercising his discretion the trial judge cannot act capriciously or arbitrarily. Nor can he ignore existing case law which had fixed controlling limitations on the exercise of his discretion. (See Raggio v. Southern Pacific Co., 181 Cal. 472, 475, 185 P. 171; Bailey v. Taafe, 29 Cal. 423, 424.)

In the case at bench we must decide in conformity with the foregoing authorities and legal principles whether the trial judge was presented with legally sufficient evidence which supports his determination that good cause was shown for the delay in the trial of this matter beyond two years.

The pendency of the Martindale-Shriner's Hospital controversy.

The real party in interest contends that the delay in bringing the will contest to trial was excused because of the pendency of the will contest brought by the Shriner's Hospital in the probate of the estate of Charles Martindale. It is argued that testimony concerning Mrs. Martindale's conduct with reference to the change of beneficiary in the will of Charles H. Martindale would serve as a means of discovery of matters which might lead to evidence admissible in the Wygant will contest involved in the instant case.

Between September 4, 1964, the date of the filing of the petition to revoke probate and November 12, 1968 no depositions were taken by the contestant. According to Mr. Hoffman's declaration in 1965, he recommended to Mr. Erway that depositions be taken in preparation of the will contest. Instead, Mr. Erway advised Mr. Hoffman that he should try and obtain all the information he could from the Martindale-Shriner's Hospital case.

No showing was made to the trial court that the real party in interest suffered from financial hardship which made it impossible to prosecute the will contest with diligence. It is true that the record discloses that in 1965 the contestant told his lawyer not to take depositions because he needed ‘all the money he could gather at that time’ (emphasis added) for surgery. However, the record is silent as to when Mr. Erway regained the financial ability to afford the costs involved in the taking of depositions. Furthermore, the real party in interest did not seek to excuse the delay in this matter on the grounds that financial hardship made it impossible for the contestant to bring this matter to trial within two years. Nor was any evidence offered to support a finding that the costs of discovery would have been excessive and unreasonable considering the financial condition of the real party in interest. (See Christin v. Superior Court, 9 Cal.2d 526, 533, 71 P.2d 205, 112 A.L.R. 1153.) It is clear that immediately after the trial court was informed in February 1969 that Mr. Rochester had been substituted as the contestant's attorney discovery proceedings including the scheduling of depositions were initiated. Since lack of economic resources for the entire period of the delay was not urged, nor proved as an excuse for the failure to bring the will contest to trial, we need not here decide the question as to whether a lack of financial ability to proceed to trial for two or more years after an action is filed constitutes legally sufficient grounds for denying a motion to dismiss pursuant to section 583 of the Code of Civil Procedure. (See Rodde v. Trousdale Const. Co.,c 276 Cal.App.2d 419, 80 Cal.Rptr. 774.)

The real party in interest urges that the evidence was sufficient to show excusable delay because of the fact that he hoped to use the testimony in the Martindale-Shriner's Hospital controversy and the cooperation of the attorney for the hospital as a means of discovery in the preparation for the trial of the will contest filed by Mr. Erway. According to his declaration Mr. Hoffman first became aware of the pendency of the trial of Martindale-Shriner's Hospital matter in 1965. For undisclosed reasons, the Martindale-Shriner's Hospital matter was continued a number of times prior to the death of the attorney for the Shriner's Hospital in January 1968. Thus for over two years, (from 1965 until January 30, 1968) the real party in interest did nothing to bring the instant matter to trial, although he was aware that the Martindale-Shriner's Hospital matter itself had gone beyond the time limits set forth in section 583 without going to trial.

The party initiating an action has the responsibility to use due diligence ‘* * * at all times to bring his action to a final determination.’ (Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501 at 506, 71 Cal.Rptr. 344 at 347.) He cannot ‘remain idle and hope for a grant of leniency which is beyond the court's power’. (Market-Front Co. v. Superior Court,d 271 Cal.App.2d ——, 76 Cal.Rptr. 526.

We are not here faced with facts which show that the outcome of the Martindale-Shriner's Hospital matter would have affected the legal rights of the parties to the instant matter or that the result would constitute res adjudicata insofar as the instant matter is concerned. Nor was any evidence presented to the trial court to show that it would have been futile, impracticable, or impossible to proceed with the instant matter prior to the resolution of the Martindale-Shriner's Hospital case.

The only justification advanced for the delay was the possible advantage which might have been afforded to the real party in interest in avoiding the cost of discovery and depositions had the Martindale-Shriner's Hospital case gone to trial.

The real party in interest has not offered any evidence of any action on his part which can be construed as a diligent effort to bring the case to trial. The most he has done is offer an excuse for his failure to take any steps to move his case forward to trial. His desire to save the costs of a deposition by listening to the testimony in another case was an expedient and self-serving strategem which under these facts falls far short of the demands of section 583 of the Code of Civil Procedure. Instead of taking affirmative steps to bring this matter to trial within two years, he sat back and did nothing while the case grew stale.

Time limitations on the disposition of civil actions are necessary so that the person against whom the action is filed may prepare his defense while the evidence is still available and witnesses' memories are fresh and undimmed by the passage of time. In addition such time limitations protect persons against whom actions are filed from being subjected to the annoyance and harassment of an unmeritorious claim remaining unresolved indefinitely. (General Motors Corp. v. Superior Court, 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492.)

This policy of prompt determination of court action is particularly pertinent to probate matters. (Estate of Taylor, 66 Cal.2d 855, 858, 59 Cal.Rptr. 437, 428 P.2d 301; Estate of Hogemann, 63 Cal.2d 131, 136, 45 Cal.Rptr. 149, 403 P.2d 405.) The filing of a will contest has the effect of delaying the final distribution of an estate and postpones carrying into effect the intent of the testator. A clear enunciation of this policy can be found in Estate of Toler, 49 Cal.2d 460 at page 469, 319 P.2d 337 at page 342, in these words ‘* * * the law favors the earliest possible distribution of estates so that legatees and devisees can enjoy their inheritance to the fullest extent at the earliest possible time.’

It is our conclusion that the evidence presented to the trial court to the effect that the delay in excess of two years was the result of the desirability of effecting an informal discovery of the testimony presented in another court action was legally insufficient to demonstrate the exercise of due diligence or to show excusable delay. The law requires a person who initiates an action to do more than sit back passively over two years in the hope that the evidence introduced in another action may be of assistance in supplying factual support for the theory of his case or provide him with ammunition for impeachment on cross-examination.

The necessity for affirmative and diligent activity leading to an early trial is particularly apparent in a will contest where as here the witnesses are known to be elderly subject to the inexorable onslaught of the infirmities of the aging process and fighting the spectre of senility.

2. The Delayed Diligence of Substitute Counsel.

The contestant filed a substitution of counsel with the trial court on February 21, 1969. On March 1, 1969, four years and five months after the will contest was filed, substitute counsel filed a notice for trial setting. Thereafter, March 26, 1969 was set as the date for the deposition of the petitioner, Julia Kincaid Martindale. The fact that a deposition was scheduled after the filing of the motion to set the matter for trial would indicate that a trial date was being requested although the real party in interest had not completed his preparation for trial. Counsel for the real party in interest contends before this court that this activity was sufficient evidence of diligence to require that this court sustain the trial court's order. We disagree.

The mere scheduling of the deposition of a party to the action after four years and five months of inactivity does not constitute a legally sufficient showing to excuse a failure to bring a matter to trial within two years. Such evidence does not prove that diligence was exercised at all stages of the proceedings in order to bring the action to trial wihtin two years. Nor does proof of the scheduling of a deposition constitute an adequate showing that the prior delay of four years and five months was excusable. No evidence was offered to the trial court to prove that it was impossible to take the deposition within the two year period.

The real party in interest was advised by counsel in 1965 that depositions should be taken. However, none were scheduled until 1969.

It is an abuse of discretion for a trial court to deny a motion to dismiss an action in the absence of some evidence to prove that it was futile, impracticable, or impossible to take some step to advance the matter to trial within two years of initiating an action and prior to the filing of a motion to dismiss.

The record before us fails to disclose any evidence that diligent steps were taken to prosecute this action for over four years. No showing was made to excuse the failure to exercise diligence except that it was financially inconvenient to do so. Proof that a delay of more than two years would make preparation for trial more convenient is legally insufficient proof standing alone to constitute delay under section 583. Accordingly, it was an abuse of discretion to deny the motion to dismiss the will contest in the absence of legally sufficient evidence to show the exercise of diligence or excusable delay.

Does section 583 of Code of Civil Procedure apply to a will contest?

Real party in interest suggests that the two year provisions of section 583 of Code of Civil Procedure do not apply to a will contest. This contention is without merit. Section 1233 of the Probate Code provides in pertinent part: ‘Except as otherwise provided by this code or by rules adopted by the Judicial Council, the provisions of Part 2 * * * of the Code of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this code with regard to discovery, trials, new trials, appeals, and all other matters of procedure.’ (Emphasis added.)

Section 583 of the Code of Civil Procedure is in part 2 of the Code of Civil Procedure. Therefore, a will contest is subject to the provisions of section 583. (See Estate of Morrison, 125 Cal.App. 504, 507–509, 14 P.2d 102.)

Let a peremptory writ of mandate issud, directing the respondent trial court to vacate its present order and to grant the motion to dismiss.

FOOTNOTES

FOOTNOTE.  

FOOTNOTE.  FNa. Advance Report Citation: 271 A.C.A. 571, 573–574.

FOOTNOTE.  FNb. Advance Report Citation: 276 A.C.A. 507, 509.

FOOTNOTE.  FNc. Advance Report Citation: 276 A.C.A. 507, 510–511.

FOOTNOTE.  FNd. Advance Report Citation: 271 A.C.A. 571 at 574.

ALARCON,* Associate Justice Pro Tem. FN* Assigned by Chairman of the Judicial Council.

ROTH, P. J., and WRIGHT, J., concur.

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