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

James B. DENHAM, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. MARSH & KIDDER, John Marsh and Harry Kidder, Real Parties in Interest.

Civ. 34598.

Decided: October 09, 1969

Acret & Perrochet and Robert W. Robinow, Los Angeles, for petitioner. No appearance for respondent. Harris K. Lyle, Donald E. Werner, Van Nuys, and Edward L. Lascher, Ventura, for real parties in interest.

For Opinion on Hearing, see 86 Cal.Rptr. 65, 468 P.2d 193.

This is a proceeding in mandate to compel respondent court to dismiss an action brought against petitioner by Marsh & Kidder, a copartnership consisting of Harry R. Kidder and John Marsh, real parties in interest herein.

The complaint was filed on June 19, 1964, naming as defendants James E. Denham, petitioner herein, the Board of Supervisors of the County of Los Angeles, and Glen Falls Insurance Company.   Plaintiffs seek to recover the sum of $21,334.63, alleged to be due the partnership for labor and materials furnished pursuant to the request of petitioner who performed construction work under an agreement with defendant Board of Supervisors.   A demurrer to the complaint was sustained, and on October 22, 1964 a first amended complaint was filed.   By stipulation, the answer to the Board of Supervisors previously filed was deemed an answer to the first amended complaint.   A demurrer to the amended complaint by Denham and Glen Falls Insurance Company was overruled on November 30, 1964 and said defendants were given fifteen days to answer.   Their answer and counterclaim were filed on February 10, 1965.   Denham also filed a cross-complaint.   On March 16, 1965, plaintiffs filed their answer to the cross-complaint and the case was at issue as to all parties.   On the latter date plaintiffs also demanded a bill of particulars which was furnished by Denham on May 5, 1965 when he demanded a bill of particulars from plaintiffs.

In July 1965 Denham and Glen Falls Insurance Company moved for an order exonerating the Stop Notice Release Bond given under the provisions of section 1192.1 of the Code of Civil Procedure so as to release the sum of $21,334.63 withheld by the County on account of the Stop Notice filed by plaintiffs on May 26, 1964 (the subject of plaintiff's second cause of action), and for release of security furnished by Denham in connection with the issuance of said bond.   After several continuances, the motion was granted on August 23, 1965.   Denham notified plaintiffs on August 27, 1965, that unless their bill of particulars, as previously demanded on May 4, was furnished within fifteen days he would move the court for an order imposing sanctions;  plaintiffs furnished the same on September 10, 1965.

According to the record, plaintiffs took no action of any kind for over two years.   On November 1, 1967, they filed a substitution of attorneys, by which their present counsel, Harris K. Lyle and Donald E. Werner, were substituted for the firm of Lyle, Yudelson and DiGuiseppe.   On November 3, 1967, plaintiffs submitted interrogatories to petitioner, who filed with the court his answers thereto on November 20, 1967.   Plaintiffs, on November 28, 1967, filed an At-Issue Memorandum and Certificate of Readiness, and on November 29, 1968 the court set the cause for pretrial on February 13, 1969.   On the latter date, pursuant to stipulation, the action was dismissed as to the Board of Supervisors.   Trial was set for April 21, 1969, the minute order stating:  “No law and motion or discovery proceedings pending or contemplated except that the plaintiff may take defendant's deposition and defendant may file requests for admissions.”

On April 8, 1969, petitioner noticed his motion for an order to dismiss the action pursuant to section 583 of the Code of Civil Procedure on the ground that said action had not been prosecuted with reasonable diligence and had not been brought to trial more than two years after the action was filed.   The motion was based upon the pleadings, records and files in the case and the declaration of counsel submitted with the motion.   The motion was noticed for hearing on April 18, 1969, but upon being advised by the court that such matters “under an order of the Presiding Judge adopted in this court more than one year past” were not heard on Fridays, defendant, on April 11, executed and served a Notice of New Date, setting the matter for April 21, 1969, but upon being advised by the court that such matters “under an order of the Presiding Judge adopted in this court more than one year past” were not heard on Fridays, defendant, on April 11, executed and served a Notice of New Date, setting the matter for April 21, 1969 (the date also set for trial) stating that the motion would be made and based upon the grounds and documents referred to in the previous notice.

On April 9, plaintiffs' counsel executed and served his declaration in opposition to the motion, together with points and authorities.   Declarant therein states that he is “an attorney at law licensed to practice before all Courts of the State of California, and am one of the attorneys of record for the plaintiff in the above-entitled action.   That a pre-trial in this case was held in February, 1969, and a trial date of April 21, 1969, assigned to the case.   That a deposition of the plaintiff was taken and depositions of the defendant and a witness are now set.   That the plaintiff is ready to proceed to trial on April 21, 1969.”   Points and Authorities were submitted for the propositions that the court's discretionary power to dismiss an action for lack of diligent prosecution must be exercised in accordance with the spirit of the law and with a view to subserving, rather than defeating, justice;  that it is the policy of the law to encourage trial and disposition of cases on their merits;  and that in ruling on a motion to dismiss the court should resolve all doubts in favor of the party “attempting to get to trial.”

The motion was heard and denied on April 21, 1969.   Petitioner herein contends that respondent court was under a duty to dismiss said action in view of the delay shown in the record which was before the trial court;  that the declaration filed in opposition to the motion failed to show any reason or excuse for such delay.   We are in agreement with these contentions.

Section 583 of the Code of Civil Procedure provides in pertinent 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, * * *.”

 The granting of relief after the lapse of two years is addressed to the sound discretion of the trial court, and will be disturbed only for clear abuse.  (Weeks v. Roberts, 68 Cal.2d 802, 69 Cal.Rptr. 305, 442 P.2d 361.)

 If the plaintiff does not meet the burden of showing good cause for the delay, it is an abuse of discretion for the trial judge to refuse to grant the motion to dismiss.  (Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501, 71 Cal.Rptr. 344;  a City of Los Angeles v. Superior Court, 271 Cal.App.2d 292, 76 Cal.Rptr. 256;  b Market-Front Co. v. Superior Court, 271 Cal.App.2d 505, 76 Cal.Rptr. 526;  c Paul W. Speer, Inc. v. Superior Court, 272 Cal.App.2d 32, 77 Cal.Rptr. 152.)   The burden of showing good cause for the delay of more than two years in bringing the action to trial is upon the plaintiff (Breckenridge v. Mason, 256 Cal.App.2d 121, 127, 64 Cal.Rptr. 201).

The record in this case shows that more than four years and ten months elapsed between the filing of the action and the submission of petitioner's motion.   The complaint was filed on June 19, 1964, and the case was at issue on March 16, 1965, approximately nine months later.   Thereafter, plaintiff took no affirmative action until November 3, 1967, when they served interrogatories, a period in excess of two years and seven months.   The Certificate of Readiness was filed on November 28, 1967, more than three years and five months after the complaint was filed.   The record reveals that the court did not respond to this Certificate of Readiness until November 29, 1968 when a pretrial date was set.   During this period the case was permitted to lie dormant and plaintiffs took no affirmative action thereafter until the date set for the pretrial conference, February 13, 1969, at which time, as indicated by the minute order of that date, discovery proceedings had not been completed.

 Petitioner, in reliance upon this record, made a prima facie case showing unreasonable delay and the burden was upon plaintiffs to show that they had acted with reasonable diligence and that the delays were excusable.   The declaration filed on behalf of plaintiffs in opposition to the motion, quoted hereinabove in its entirety, is obviously insufficient for this purpose.   It offers nothing whatever to excuse or explain the delays reflected in the record.   Plaintiffs may rely upon the record to demonstrate that due diligence was exercised by them and that the delay was excusable.  (See d City of Los Angeles v. Superior Court, supra, 271 Cal.App.2d 292, 76 Cal.Rptr. 256.)   However, the only portion of the record which is of any assistance to plaintiffs is the showing that the court did not set the matter for pretrial for a period of one year after the filing of the Certificate of Readiness.

 A plaintiff is charged only with the duty of prosecuting his case with reasonable diligence, and a showing of excusable delay will prevent a dismissal;  periods of time during which for all practical purposes it would have been impossible to go to trial are not to be counted.  (Wilson v. Barry, 119 Cal.App.2d 621, 627, 629, 259 P.2d 991.)   There is nothing in the record, however, to show that this delay of a year was unavoidable.   There is no evidence that plaintiffs made any inquiries concerning this delay, that they took any steps to obtain an earlier pre-trial date, or that an earlier date would have been unavailable had one been applied for.   The duty rests upon a plaintiff at every stage of the proceedings to use due diligence to expedite his case to a final determination.  (See, Raggio v. Southern Pacific Co., 181 Cal. 472, 475–476, 185 P. 171.)   And, “the burden is on the plaintiff or resisting party to make a showing that would excuse the delay or reduce the period of time disclosed by the record to have elapsed since the filing of the action.”  (Bonelli v. Chandler, 165 Cal.App.2d 267, 273, 331 P.2d 705, 709.)   In any event, even if we were to assume that the year's delay was caused entirely by the court, and that respondent court took judicial notice of such fact, the action had been pending for three years and five months when the Certificate of Readiness was filed, and this period included over two years and eight months of inaction which is wholly unexplained.

Plaintiffs have lodged with this court certain declarations which offer some explanation for the delay.   This evidence, however, was not before the trial court and could not have afforded a basis for the exercise of its discretion.   ( e Market-Front Co. v. Superior Court, supra, 271 Cal.App.2d 505, 76 Cal.Rptr. 526.)

Plaintiffs contend, however, that the facts contained in these declarations were all matters of which the court could and presumptively did take judicial notice, pursuant to section 451, subn. (f), and 452, subns. (g) and (h) of the Evidence Code.1  It is claimed that in determining whether plaintiffs met their burden, the court is presumed to have judicially noticed the following matters, which sustain the trial court's order:  (1) “That during the period particularly involved in the claim inaction of real parties, the status of their legal representation was disrupted on three separate occasions, first by the withdrawal of a member of the firm theretofore responsible for handling real parties' case;  second, by the appointment of his successor * * as a commissioner of the Municipal Court, Los Angeles Judicial District;  and thirdly, by the appointment of his successor * * * as a judge of that Municipal Court.”  (2) “The frequent changes in local and statewide rules concerning trial settings, and of the practical impossibility and futility of attempting to bring the case to trial during most of the period involved.”

With regard to the subject of judicial notice the court, in Standley v. Knapp, 113 Cal.App. 91, 95, 298 P. 109, 111, quotes from Ruling Case Law, volume 15, p. 1057:  “ ‘In every instance the test is whether sufficient notoriety attaches to the fact involved as to make it safe and proper to assume its existence without proof.  * * Judicial knowledge in any case is by no means determined or limited by the knowledge of the particular judge or court.  * * And therefore individual and extrajudicial knowledge on the part of a judge will not dispense with proof of facts not judicially cognizable and cannot be resorted to for the purpose of supplementing the record.’ ”   In Communist Party v. Peek, 20 Cal.2d 536, 546–547, 127 P.2d 889, 895–896, the court states:  “The doctrine of judicial notice was adopted as a judicial short-cut to avoid necessity for the formal introduction of evidence in certain cases where there is no real need for such evidence.   Before a court will take judicial notice of any fact, however, that fact must be a matter of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain.   The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.”  “It is truly said that the power of judicial notice is, as to matters claimed to be matters of general knowledge, one to be used with caution.   If there is any doubt whatever, either as to the fact itself or as to its being a matter of common knowledge, evidence should be required.”  (Varcoe v. Lee, 180 Cal. 338, 345, 181 P. 223, 226.)

 Judicial notice of the matters specified in Section 451 of the Evidence Code is mandatory, whether or not the court is requested to notice them.  (See, “Comment-Assembly Committee on Judiciary” to Section 451, West's Annotated Evidence Code.)   The court may take judicial notice of the matters set forth in section 452 of the Evidence Code, even when not requested to do so;  and it is required to notice them if a party requests it and satisfies the requirements of section 453.2  Section 455 provides further procedural safeguards designed to afford the parties reasonable opportunity to be heard both as to the propriety of taking judicial notice of a matter and as to the tenor of the matter to be noticed.3

 It seems clear that the changes made in the personnel of the law firm representing plaintiffs hardly present “universally known” facts within the mandatory provisions of section 451, subn. (f).  Much less apparent is the significance of these changes, which would depend upon many factors, with regard to the ability of plaintiffs to prosecute their action with diligence, in the absence of any evidence on the subject.   It is our conclusion that no provision of section 451 warrants the claim that judicial notice had to be taken of any of the facts under discussion.

 Nor do the provisions of section 452 assist plaintiffs in this case.   They made no request that judicial notice be taken of any fact (sec. 453) so the court was under no duty to do so.   Assuming that the court could judicially notice the rules of court (sec. 452, subn. (e)), and that an attorney within the jurisdiction had been appointed to the bench (sec. 452, subn. (c)), plaintiffs' argument is more extensive and includes the consequences or effect of such judicially noticed facts upon plaintiffs and counsel in this particular case.   It is our opinion, in view of the cases hereinabove cited, that the latter are not such “facts and propositions” as may be judicially noticed under subdivisions (g) and (h) of section 452.   Furthermore, there was no compliance with section 455.   Accordingly, respondent court could not properly take judicial notice of the matters upon which plaintiffs rely in determining whether to grant or deny the motion to dismiss.

The plaintiffs also contend that this court may consider the “generally unavoidable delay in reaching trial in Los Angeles County,” in upholding the trial court's order denying the motion to dismiss.   However, plaintiffs failed to present any evidence to the trial court that the delay in bringing the matter to trial was caused by the condition of the court's calendar nor was any evidence presented of any efforts by the plaintiffs to obtain an earlier trial date.

Plaintiffs further urge a number of equitable defenses which, so far as appears, were not presented to the trial court for its consideration.   It is contended that the trial court's order is sustained by reason of petitioner's refusal to do equity, his “unclean hands”, and by laches.   We have carefully reviewed the record and find no support for these contentions.   Likewise without merit is the claim that he court was justified in denying dismissal upon the ground of the inadequacy of the notice given of the motion to dismiss.  (Welden v. Davis Auto Exchange, 153 Cal.App.2d 515, 522, 315 P.2d 33.)

 Finally, plaintiffs contend that this court “lacks jurisdiction to set aside the order of the trial court in the absence of both claim and showing of miscarriage of justice”, citing Article VI, section 13, of the California Constitution.   This constitutional provision provides:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”   Upon the record herein, said provision may not be invoked in this case.   Petitioner makes no claim of errors during the course of the hearing relative to matters of pleading, rulings on evidence, instructions to a jury, or in relation to matters of procedure.

 Since there was no evidence presented to the trial judge to excuse the delay by way of affidavit or from the record, the failure of respondent court to grant the motion to dismiss was an abuse of discretion.   The demurrer to the petition is overruled.

Let a peremptory writ of mandate issue as prayed.



FOOTNOTE.   Advance Report Citation:  271 A.C.A. 348, 351.

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

FOOTNOTE.   Advance Report Citation:  272 A.C.A. 32, 37.

FOOTNOTE.   Advance Report Citation:  271 A.C.A. 348, 351.

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

1.   Section 451 subn. (f):  “Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of a dispute.   Section 452 subn. (g):  “Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.”Section 452 subn. (h):  “Facts and propositions that are reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

2.   Evidence Code, section 453:  “The trial court shall take judicial notice of any matter specified in Section 451 if a party requests it and:  (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request;  and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”

3.   Evidence Code, section 455:  “With respect to any matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action:  (a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.  (b) If the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken.”