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Court of Appeal, Second District, Division 1, California.

Mark C. WILLIAMS, as Special Administrator, etc., Plaintiff and Appellant, v. Evelyn Combs CHUMO et al., Defendants and Respondents.

Civ. 66608.

Decided: February 07, 1984

Arthur Wasserman, Encino, for plaintiff and appellant. Haight, Dickson, Brown & Bonesteel and Roy G. Weatherup, Bruce A. Armstrong, Robert Kaufman, and Hall R. Marston, Santa Monica, for defendants and respondents.

Appellant, Mark C. Williams, appeals from an order dismissing his lawsuit against respondents, Evelyn Combs Chumo and Westland Motors, for failure to prosecute.  (Code Civ.Proc., § 583, subd. (a).)  (All further statutory references are to the Code of Civil Procedure.)

Appellant's father, Larry L. Williams, filed the original complaint in this action on July 2, 1976, and a first amended complaint on September 20, 1976.   On October 26, 1976, respondents filed their answer to the first amended complaint and concurrently filed a cross-complaint against Larry Williams.   On December 16, 1976, Larry Williams filed his answer to the cross-complaint, and on December 23, 1976, an at-issue memorandum was filed.

On April 6, 1977, pursuant to stipulation, a supplemental first amended complaint was filed alleging that Lee Combs had died.   On June 24, 1977, respondents served Larry Williams with interrogatories to which he failed to respond.   On January 6, 1978, Larry Williams was ordered to answer the interrogatories.   He complied with that order.

Larry Williams died on September 5, 1978.   On January 12, 1979, respondents' attorney sent a letter to Larry Williams' counsel advising that an estate be set up for prosecution of this action.

On May 28, 1981, Larry Williams' attorney filed a notice of motion to advance the case for trial.   As grounds for bringing this motion, Larry Williams' counsel stated that “this action will not otherwise be brought to trial within 5 years after it was filed.”   The trial court ruled on June 12, 1981, that the motion would not be granted unless the deceased plaintiff's personal representative was substituted into the case before June 15, 1981.

On June 15, 1981, appellant's ex parte motion for an order substituting himself as the plaintiff was granted, and trial was set for July 1, 1981.

On June 17, 1981, respondents filed a motion under section 583, subdivision (a), to dismiss for failure to prosecute.   The motion claimed that appellant had prejudiced respondents by delaying the substitution of a representative for the estate of Larry Williams as plaintiff.   Specifically, respondents claimed that “[s]ince the death of [Larry Williams], the [respondents] have been completely unable to propound requests for admissions, interrogatories and other discovery due to the fact that there was no party plaintiff with the capacity to respond to such discovery.”   Respondents further argued that, due to the lengthy failure to substitute a new plaintiff, respondents had been acting under the assumption that Larry Williams' original claim had been abandoned.   On July 1, 1981, the trial court granted respondents' motion and dismissed appellant's complaint as to respondents solely pursuant to section 583, subdivision (a).  (No order of dismissal was entered as to defendant Margaret Evelyn Combs Chumo as executrix of the estate of Lee Combs.)

Appellant contends that the time within which the case was required to be prosecuted was tolled during the 33 months between Larry Williams' death and the appointment of appellant as the special administrator.   Appellant bases this contention on section 583, subdivision (f), which provides:  “The time during which the defendant was not amenable to the process of the court and the time during which the jurisdiction of the court to try the action is suspended shall not be included in computing the time period specified in any subdivision of this section.”

Appellant has not cited, nor has our research located, any authority holding that death of a plaintiff tolls the time periods of section 583.   Appellant relies on Herring v. Peterson (1981) 116 Cal.App.3d 608, 172 Cal.Rptr. 240 in support of such contention.   In that case the court held that the death of the defendant tolled the running of section 583, subdivision (b).  (Accord, Wills v. Williams (1975) 47 Cal.App.3d 941, 946, 121 Cal.Rptr. 420.)   This holding was based in part on the section 583, subdivision (f) provision that creates an exclusion for the “time during which the defendant was not amenable to the process of the court.”  (See Herring v. Peterson, supra, 116 Cal.App.3d 608, 613, 172 Cal.Rptr. 240.)   There is no equivalent provision in section 583, subdivision (f), requiring that the plaintiff be amenable to the process of the court.   The Herring court's holding was also based on its determination that the court had lacked jurisdiction to try the case in that the dismissal entered in the absence of a substitution of a representative of the deceased defendant's estate was an act in excess of the court's jurisdiction.  (Herring v. Peterson, supra, 116 Cal.App.3d at pp. 611–613, 172 Cal.Rptr. 240;  accord Wills v. Williams, supra, 47 Cal.App.3d at p. 946, 121 Cal.Rptr. 420.)

We are thus presented with the question whether the section 583, subdivision (f) exclusion of “time during which the jurisdiction of the court to try the action is suspended” includes a period of time when there is no living plaintiff.   In deciding this question we are aided by the analysis of the court in White v. Renck (1980) 108 Cal.App.3d 835, 166 Cal.Rptr. 701.   That case held that the period between the death of the original guardian ad litem and the appointment of a second guardian ad litem did not toll the running of section 583, subdivision (b), because, while trial in the absence of a guardian ad litem would involve an excess of jurisdiction, there was no lack of jurisdiction in the fundamental sense during the hiatus between the death of the original guardian ad litem and the appointment of the second one.  (White v. Renck, supra, 108 Cal.App.3d at pp. 838–841, 166 Cal.Rptr. 701.)   Thus a judgment obtained during that hiatus would have been voidable, but would not have been subject to collateral attack as being void.   (White v. Renck, supra, 108 Cal.App.3d at pp. 839–840, 166 Cal.Rptr. 701;  1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 223, pp. 756–757.)

“The distinction between lack of fundamental jurisdiction and an act in excess of jurisdiction has been explained by our Supreme Court as follows:  ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties ․’ ”  (White v. Renck, supra, 108 Cal.App.3d at p. 840, 166 Cal.Rptr. 701, original italics.)   Because subdivision (f) refers to “jurisdiction of the court to try the action ” (emphasis supplied), the White court concluded that this part of the subdivision (f) tolling provision is limited to “jurisdiction in the strict sense.”  (White v. Renck, supra, 108 Cal.App.3d at p. 840, 166 Cal.Rptr. 701;  cf. Moore v. Powell (1977) 70 Cal.App.3d 583, 587–588, 138 Cal.Rptr. 914 [section 583 not tolled during nine-month period between granting of motion for change of venue and transfer of action].)

The holding of White is supported by the Supreme Court's decision in Woley v. Turkus (1958) 51 Cal.2d 402, 334 P.2d 12.   In that case the court described one of the exceptions to the section 583 time limits as a situation “where a party is unable from causes beyond his control to bring the case to trial ․ because of a total lack of jurisdiction in the strict sense on the part of the trial court ․”  (Id., at p. 407, 334 P.2d 12, italics added.)   Subdivision (f), which was added in 1970 (Stats. 1970, ch. 582, § 2, pp. 1159–1160), is a codification of the principle recognized in Woley v. Turkus.  (See McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 533, 105 Cal.Rptr. 330, 503 P.2d 1338;  Moore v. Powell, supra, 70 Cal.App.3d at p. 589, 138 Cal.Rptr. 914;  4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 103, p. 2766.)

 The death of the plaintiff after an action has begun does not result in a lack of jurisdiction in the strict sense.   Mr. Witkin explains that in such a case it is improper to render a judgment for or against a deceased party without substituting a representative.  (1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 207, p. 739.)   While such a judgment without substitution “seems clearly in excess of jurisdiction” (ibid.), it does not result in a lack of jurisdiction in the strict sense because the judgment would not be subject to collateral attack as a void judgment.  (Id., at pp. 739–740.)

 We have concluded that the death of a plaintiff does not toll the running of section 583 because there is no loss of jurisdiction in the strict sense.   We must now determine whether the trial court abused its discretion in granting the motion to dismiss.   In making this determination we are governed by the rule that a trial court's exercise of discretion in determining a motion to dismiss pursuant to section 583, subdivision (a), “will be disturbed only in cases of manifest abuse.  [Citation.]”  (Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 416–417, 134 Cal.Rptr. 402, 556 P.2d 764.)   As we have previously stated, the purposes of section 583 are to “ ‘discourage stale claims' ” and to “ ‘compel reasonable diligence in the prosecution of actions.’ ”  (Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1016, 165 Cal.Rptr. 524.)   We hold that the diligence required under section 583 includes reasonable diligence to take the appropriate steps to substitute as plaintiff the representative of the deceased plaintiff's estate.

 We find no abuse of discretion in the case at bench.   Even though advised by opposing counsel regarding the necessity for substitution of a new plaintiff, appellant's attorney gave no heed to this requirement for a period of 30 months.   Furthermore, during the two years and two months after the filing of this action, Larry Williams answered respondents' interrogatories only after much delay and did not do so until his answers were compelled by judicial order.  (See Cal. Rules of Court, rule 203.5(e).)

Respondents have delineated the manner in which these delays prejudiced their case.   Specifically, their ability to adequately conduct discovery was hampered by the unavailability of a party plaintiff from the time of Larry Williams' death until the substitution of appellant only two weeks before trial.   During the period in which the action lay dormant a key witness died and employees of Westland Motors moved away.   In addition, respondents reasonably assumed that Larry Williams' claim had been completely abandoned in view of the lengthy period in which there was no party plaintiff despite respondents' suggestion that a representative be appointed.

The order of dismissal is affirmed.

DALSIMER, Associate Justice.

LILLIE, Acting P.J., and L. THAXTON HANSON, J., concur.