McDONOUGH POWER EQUIPMENT CO v. GRASSO

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

McDONOUGH POWER EQUIPMENT CO., Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Mary GRASSO, Real Party in Interest.

Civ. 39541.

Decided: February 16, 1972

Dryden, Harringtion & Swartz by Peter Abrahams, Los Angeles, for petitioner. Olney, Levy, Kaplan, Ormes & Tenner by Richard Devirian, Los Angeles, for real party in interest. No appearance for respondent.

McDonough Power Equipment Company seeks a writ of mandate to compel the superior court to dismiss an action pursuant to the provisions of Code of Civil Procedure section 583 for lack of prosecution.

Section 583 provides, in pertinent part, two periods of time for mandatory dismissal of an action for lack of prosecution: (1) after five years, when an action has not been brought to trial, (2) after three years, when a judgment has been reversed on appeal and cause remanded for a new trial.

In June 1965 plaintiff Mary Grasso filed a complaint against McDonough for personal injuries which occurred in October 1956. The trial court sustained McDonough's demurrer without leave to amend and entered a judgment of dismissal in December 1965. The Court of Appeal reversed the judgment (Grasso v. McDonough Power Equipment, Inc., 264 Cal.App.2d 597, 70 Cal.Rptr. 458), and in October 1968 its remittitur was received in the superior court. In November 1971 McDonough moved to dismiss the action for failure to bring it to trial within three years of the reversal of a judgment on appeal. (Code Civ.Proc., § 583(b).) In denying the motion the trial court reasoned that the five-year period of limitation for bringing an action to trial applied, that because of the exclusion of the time the cause had been pending on appeal the five-year period had not run, that therefore plaintiff's time to prosecute the case had not expired. ‘. . . the Court finds that it has been in excess of three years since the remittitur was filed. There has been no excuse offered for the failure of the plaintiff to bring the action to trial within the three year period. If the Court felt that the three year section of 583 [were] controlling, the Court would dismiss the case. The Court feels, however, that the Legislature anticipated in drawing the five year decree that there would be a five year period during which time the plaintiff would have a free and unfettered right to bring it to trial. . . .’

In our view the trial court should have dismissed the action, for when in the earlier phase of the cause a judgment of dismissal was entered based on a demurrer sustained without leave to amend, the action had been brought to trial within the meaning of section 583. (Berri v. Superior Court, 43 Cal.2d 856, 860, 279 P.2d 8.) Thereafter, the five-year period had no further application to the cause, and when Grasso obtained a reversal of the judgment from the Court of Appeal the three-year period became applicable on remand. (Hsu v. City, etc., of San Francisco, 240 Cal.App.2d 317, 320–321, 49 Cal.Rptr. 531; Lane v. Davis, 227 Cal.App.2d 60, 61–62, 38 Cal.Rptr. 425, and cases there cited.)

Exceptions for impracticability and impossibility apply to the three-year period (Good v. State of California, 273 Cal.App.2d 587, 591, 78 Cal.Rptr. 316), but neither exception is pertinent here, for the trial court specifically declared it would have dismissed the action if it had thought the three-year period applicable. (See St. Louis-San Francisco Ry. Co. v. Superior Court, 276 Cal.App.2d 762, 767–768, 81 Cal.Rptr. 705.)

The peremptory writ is granted.

FLEMING, Associate Justice.

HERNDON, Acting P. J., and COMPTON, J., concur.