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

SOUTHERN CALIFORNIA EDISON CO., Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Thomas John LePLEY, Real Party in Interest.

Civ. 35628.

Decided: March 24, 1970

Chase, Rotchford, Drukker & Bogust, E. Michael Kaiser, Los Angeles, for petitioner. John D. Maharg, County Counsel, Harold S. Vites, Deputy County Counsel, for respondent. Robert Holzhauer, Torrance, for real party in interest.

Petitioner seeks a writ of mandate to compel respondent court to dismiss an action now pending in that court. The issue presented is whether the trial court abused its discretion in denying a motion to dismiss made by petitioner pursuant to the discretionary provisions of section 583 of the Code of Civil Procedure.

The complaint in which plaintiff (real party in interest herein) seeks damages for personal injuries was filed on November 1, 1965. Named as defendants were petitioner Southern California Edison Company, Palos Verdes Corporation, Filiorum Corporation, and Does I through III. Petitioner was served on November 4, 1965, Filiorum on January 11, 1966, and answers were filed by these parties. Discovery was completed on June 9, 1966. According to the record, plaintiff took no action of any kind for over three years. On July 16, 1969, plaintiff filed an at-issue memorandum. On August 7, 1969, the clerk of respondent court advised plaintiff that the at-issue memorandum had been removed from the civil active list for the reason that no answer to the complaint had been filed by defendant Palos Verdes Corporation. Plaintiff then filed a request for entry of dismissal as against said defendant, the matter was restored to the civil active list and, on August 18, 1969, a Certificate of Readiness was filed. On September 10, 1969, trial setting and settlement conference was scheduled for January 14, 1970.

On October 14, 1969, almost four years after the filing of the action, petitioner filed a motion to dismiss for lack of prosecution. This motion was denied on October 28, 1969.

At the conclusion of the hearing upon the motion, the trial court stated: ‘I'm familiar with the recent cases. I think, Mr. Holzhauer, it is * * * a situation in which the motion would have to be granted under ordinary circumstances. I think the sides to be balanced in a situation of this kind is whether your client would have to suffer for your remissions. The rule is a harsh one as far as the client is concerned. I realize that because of the condition of the court's calendar a person might get into a somewhat apathetic feeling and attitude about getting a case to trial, might be inclined to proscrastinate where otherwise he wouldn't. I think under the circumstances of this case that the motion should be denied. It would be too severe a penalty to, I think, cast upon the plaintiff in the action, under the circumstances. The motion is denied.’

Section 583, Code of Civil Procedure, permits the court in its discretion to dismiss any action for want of prosecution whenever plaintiff has failed for two years after the filing of said action to bring the same to trial. ‘After the expiration of two years from the filing of a complaint, if the action has not been brought to trial the court has the power and the duty to dismiss the same against plaintiff upon defendant's motion unless plaintiff can make a showing of excusable delay; the burden of making such a showing is on plaintiff.’ (Breckenridge v. Mason, 256 Cal.App.2d 121, 127, 64 Cal.Rptr. 201, 205; see also Bonelli v. Chandler, 165 Cal.App.2d 267–273, 331 P.2d 705; Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501, 510, 71 Cal.Rptr. 344; Market-Front Co. v. Superior Court, 271 Cal.App.2d 505, 506–507, 76 Cal.Rptr. 526.) If the plaintiff does not meet his burden of showing good cause for the delay, it is an abuse of discretion for the trial court to refuse to grant the motion to dismiss. (Paul W. Speer, Inc. v. Superior Court, 272 Cal.App.2d 32, 36, 77 Cal.Rptr. 152; City of Los Angeles v. Superior Court, 271 Cal.App.2d 292, 295, 76 Cal.Rptr. 256; Market-Front Co. v. Superior Court, supra, at pp. 507–508, 76 Cal.Rptr. 526; Black Bros. Co. v. Superior Court, supra, 265 Cal.App.2d at p. 510, 71 Cal.Rptr. 344.)1

It is well established that the duty rests upon a plaintiff ‘at every stage of the proceedings to use diligence to expedite his case to a final determination.’ (Emphasis added.) (Raggio v. Southern Pacific Co., 181 Cal. 472, 475, 185 P. 171, 173; see also Luna v. Valenzuela, 213 Cal.App.2d 232 236–237, 28 Cal.Rptr. 649; Knight v. Pacific Gas & Elec. Co., 178 Cal.App.2d 923, 929, 3 Cal.Rptr. 600; Breckenridge v. Mason, supra, 256 Cal.App.2d 121, 126, 64 Cal.Rptr. 201.)

In support of his petition for a writ of mandate before this court, petitioner relies upon the record which shows a three-year period of total inactivity by plaintiff from June 9, 1966 (completion of discovery) to July 16, 1969 (when an at-issue memorandum was first filed). It is contended that the showing made by plaintiff was legally insufficient to excuse the delay.

The plaintiff's attorney's justification for the delay in bringing this matter to trial is summarized in the following quotation from his brief in opposition to the petition for a writ of mandate: ‘In addition to the foregoing action, plaintiff's attorney represented plaintiff in an ancillary action arising from the same accident, which action arising from the same accident, which action was tried in the Municipal Court in Long Beach to determine whether there was any medical insurance coverage to help pay plaintiff's bills. The present action was apparently confused with the Municipal Court action, which in turn caused plaintiff's attorney to fail to discover that steps had not been taken to initiate the trial setting of this action. At about the same time, plaintiff's attorney had other matters set in Long Beach, and these matters were each continued on numerous occasions; and plaintiff's attorney was, in fact, advised that no cases were going to trial except those which were approaching the five–year period provided under section 581 of the Civil Code [sic].’

This explanation fails to establish that diligence was exercised in the prosecution of this matter nor does it show an adequate excuse for his inactivity. Although pressure of business alone is not determinative of the issue of excuse, it is a factor which may be considered by the trial court. (See Knight v. Pacific Gas & Elec. Co., supra, 178 Cal.App.2d 923, 930, 3 Cal.Rptr. 600; Price v. Grayson,a 276 Cal.App.2d 50, ——, 80 Cal.Rptr. 602.) In the instant case, however, declarant did not assert nor did plaintiff prove that ‘pressure of business' was the reason for the delay. Nor does it appear that the municipal court litigation had any bearing on the outcome of the instant case.

Plaintiff also urges that the delay was excusable because of the condition of the trial court's calendar, basing this contention upon his alleged personal experience that cases which had been set ‘were continued on numerous occasions' and upon advice (from an unspecified source) that ‘no cases were going to trial except those which were approaching the five-year period.’

Counsel at the hearing on the motion to dismiss, asked the trial court ‘to take judicial notice of the condition of the calendar in Long Beach in the past couple of years.’ Courts will judicially notice the congested condition of the court's own calendar. (See People v. George, 91 Cal.App.2d 537, 544, 205 P.2d 464, Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill.App.2d 385, 197 N.E.2d 73, 78; 31 C.J.S. Evidence § 49, p. 1015.) The trial judge stated (in referring to the condition of the court's calendar) ‘a person might get into a somewhat apathetic feeling and attitude about getting a case to trial, might be inclined to procrastinate where otherwise he wouldn't.’ This would not appear to be a finding that the delay in this case was excused because of the condition of the calendar. To the contrary, the court characterized counsel's conduct as procrastination (indicating indifference, or putting off something that should be done without justification). The trial court stated that this was ‘a situation in which the motion would have to be granted under ordinary circumstances.’ This language indicates an implied finding that plaintiff had not used due diligence and had failed to present an acceptable excuse for the delay.

Counsel failed to file an at-issue memorandum at the completion of discovery, which reasonably would have been done in order to establish a ‘place in line’ for assignment of a trial date. Had he exercised such diligence, he could then have avoided a dismissal by demonstrating that, despite his earnest efforts to bring the matter to trial, ‘the procedure has itself been too slow.’ (Vecki v. Sorensen, 171 Cal.App.2d 390, 393, 340 P.2d 1020, 1021; see also Weeks v. Roberts, 68 Cal.2d 802, 806–807, 69 Cal.Rptr. 305, 442 P.2d 361.) In reviewing the record we find no adequate showing before the trial court that this case could not have been set for trial at any time within the three-year period of inactivity had counsel made an attempt. The record does not show that plaintiff made any official inquiry with regard to setting the case, or that any person who had the power to actually set the case for trial advised plaintiff's counsel that this case could not have been placed on the civil active list at any time earlier than July or August of 1969. Likewise, assuming that the trial court did take judicial notice of the general condition of that court's calendar during the three years of inactivity shown here, such notice does not prove that it would have been futile for the plaintiff to file an at-issue memorandum earlier than he did. At the worst, such a filing in June of 1966 would have given plaintiff a priority in setting over memoranda filed subsequently, and thus have assured a trial as soon as the congestion permitted. The very minimum action that diligence requires is that counsel ‘get in line’ for a trial setting as early as is possible; even though the queue may move slowly, it will move and a place in the middle will always be better than one at the tail end.

Counsel who is aware of the crowded condition of the court's civil calendar cannot complacently speculate that the trial court will deny an assignment for a trial date or deny a motion for an early setting to avoid a dismissal. 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, supra, 265 Cal.App.2d 501, 506, 71 Cal.Rptr. 344, 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, supra, 271 Cal.App.2d 505, at 507, 76 Cal.Rptr. 526, 528.)

Plaintiff relies upon the rule stated in Weeks v. Roberts, supra, 68 Cal.2d 802, 806, 69 Cal.Rptr. 305, 307, 442 P.2d 361, 363, ‘But the power to dismiss should be used ‘in view of the facts of the entire situation,’ taking into account any unusual circumstances, and acting to promote substantial justice. (E. g., Daley v. County of Butte, 227 Cal.App.2d 380, 394, 38 Cal.Rptr. 693; Ordway v. Arata, 150 Cal.App.2d 71, 75–79, 309 P.2d 919; Jepsen v. Sherry, 99 Cal.App.2d 119, 120–121, 220 P.2d 819, 822.)'

‘It is the policy of the law that every person who has a justiciable claim should have his day in court and a trial on the merits. (Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501, 505, 71 Cal.Rptr. 344.) However, it is also the policy of the law that the defendant in a civil action is entitled to a speedy disposition of the claim against him so that he may prepare his defense when the evidence is still available and witnesses' memories are fresh.’ (City of Los Angeles v. Superior Court, supra, 271 Cal.App.2d 292, 294–295, 76 Cal.Rptr. 256, 258; see also Jepsen v. Sherry, supra, 99 Cal.App.2d 119, 121, 220 P.2d 819.)

The rule which authorizes dismissal on technical grounds, rather than upon the merits, is a harsh one so far as any plaintiff is concerned. As pointed out in Weeks v. Roberts, supra, 68 Cal.2d at pages 806–807, 69 Cal.Rptr. 305, 308, 442 P.2d 361, 364, ‘The harshness upon plaintiffs who are seldom personally responsible for delays in our system of representative litigation is manifest.’

Nevertheless, each case must be decided on its individual facts and features (Bonelli v. Chandler, supra, 165 Cal.App.2d 267, 275, 331 P.2d 705; Ordway v. Arata, 150 Cal.App.2d 71, 77, 309 P.2d 919; Daley v. County of Butte, 227 Cal.App.2d 380, 390, 38 Cal.Rptr. 693; Knight v. Pacific Gas & Elec. Co., supra, 178 Cal.App.2d 923, 932, 3 Cal.Rptr. 600) and, in reviewing the record in the instant case, we find no ‘unusual circumstances' bringing this case within the rule above referred to in Weeks v. Roberts, or the cases therein cited. In order ‘to promote substantial justice’ the court cannot look solely to the interest of the litigant opposing the motion. ‘Plaintiffs' right to substantial justice must be measured in the light of the right of all litigants and the orderly procedure prescribed for the benefit of all.’ (Knight v. Pacific Gas & Elec. Co., supra, 178 Cal.App.2d 923, 933, 3 Cal.Rptr. 600, 606.)

Nothing was done by plaintiff for a period of three years; no valid excuse or extenuating circumstances justifying this delay were established. Upon this record, the failure to dismiss was a clear abuse of discretion.

Let a peremptory writ of mandate issue as prayed.



1.  Recent cases applying this rule: Price v. Grayson, 276 A.C.A. 79, 80 Cal.Rptr. 602; Rodde v. Trousdale Constr. Co., 276 A.C.A. 507, 80 Cal.Rptr. 774; Monroy v. Roman Catholic Archbishop, 276 A.C.A. 581, 81 Cal.Rptr. 130; St. Louis-San Francisco Ry. Co. v. Superior Court, 276 A.C.A. 921, 81 Cal.Rptr. 705; Hershman v. Bernard Homes, Inc., 1 Cal.App.3d 651, 81 Cal.Rptr. 817; Bolsinger v. Marr, 1 Cal.App.3d 267, 81 Cal.Rptr. 498; Carnation Company v. Superior Court, 1 Cal.App.3d 891; Raynolds v. Volkswagenwerk Aktiengesellschaft, 275 A.C.A. 1126, 80 Cal.Rptr. 610.

FOOTNOTE.  FNa. Advance Report Citation: 276 A.C.A. 79, 83.

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

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