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

Francisco R. SALAS, a minor, by Federico SALAS, acting as Guardian ad litem and Federico Salas, individually, Plaintiffs and Appellants, v. SEARS, ROEBUCK AND COMPANY, a Corporation, Defendant and Respondent.


Decided: October 16, 1985

Oliver, Sloan, Vargas, Lindvig, Matthew, Jacobs & Pico, Pasadena, and Leonard Sacks, Encino, for plaintiffs and appellants. Lillick, McHose & Charles, Ralph D. Kirwan and John Randolph Haag, Los Angeles, for defendant and respondent.

Appeal from dismissal of action for failure to bring case to trial within five years.   Affirmed.

The issues on appeal are (1) whether there is a mandatory duty to specially set for trial within the five-year period, (2) whether the court's failure to rule on respondent's request for dismissal under the court's own motion precludes denial of the motion for trial preference, and (3) whether the trial judge's denial of appellant's motion for trial preference was an abuse of discretion.


Appellants are father and son.   The son was accidently shot by a friend with a gun purchased from respondent.   The gun had jammed just prior to the accident.   On September 12, 1979, appellants filed a complaint alleging negligence, breach of warranty and strict tort liability against respondent and against the friend.

On June 3, 1980, appellants filed an At-Issue Memorandum requesting a jury trial.

On July 15, 1983, the superior court sent a “Notice of Trial Setting Conference and Intention to Dismiss on Court's Own Motion” to appellants which required that appellants give respondents written notice within ten days of a trial setting conference set for September 21.   Appellants' only notification to respondent was a phone call the day before the conference.

The court took the trial setting conference off calendar when it learned respondent had not received proper notice and the next week the case was removed from the civil active list.

During the following ten months, appellants did nothing to set the case for trial.

On August 1, 1984, appellants gave respondent notice of an ex parte application for order shortening time for the hearing on a motion for trial preference.   The motion was heard on August 10.

Appellants' moving papers asserted only one ground for preferential setting, the imminence of the five-year time bar under Code of Civil Procedure section 583, subdivision (b).1  No legal authority was cited to support the granting of the motion.   No explanation was given for appellants' failure to set the case for trial during the ten months after the case was removed from the civil active list.   No claim was made that appellants were ready to proceed to trial.

Respondent filed opposition papers in which it invited the court to dismiss the action on the court's own motion pursuant to California Code of Civil Procedure section 583, subdivision (a),2

At the hearing the court indicated its tentative ruling was to deny the motion for trial preference, but ordered a second hearing on August 13, inviting the parties to file supplemental papers in support of their positions.

Appellants elected not to submit any further papers;  respondent submitted supplemental declarations attacking unsworn statements appellants made at the first hearing.

The court denied appellants' motion for trial preference.

On September 26, 1984, respondent filed a motion for a section 583, subdivision (b) dismissal, based upon plaintiffs' failure to bring the action to trial within five years.   The motion was granted on October 16, 1984.


(1) Is There a Mandatory Duty to Set for Trial Within the Five-Year Period?

Appellants contend that the recent decision of another division of this court in the case of Campanella v. Takaoka (1984) 160 Cal.App.3d 504, 206 Cal.Rptr. 745 compels a reversal of the judgment of dismissal with directions to the trial court to set the case for trial, but without prejudice to the court's right to dismiss under Code of Civil Procedure section 583, subdivision (a).

The Campanella court ruled “that a trial court cannot refuse to grant a plaintiff's motion for an early trial setting, even if the plaintiff has been guilty of unreasonable delay.”  (Id., at p. 513, 206 Cal.Rptr. 745.)

We respectfully disagree with that decision.

“A motion to specially set a matter for trial is addressed to the sound discretion of the trial court.   In the exercise of that discretion, the entire factual picture must be considered․”  (Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 134, 140, 199 Cal.Rptr. 295.)

In Karubian we held that the trial court did not abuse its discretion in denying plaintiff's motion to specially set for trial 40 days prior to the running of the five years, even though some part of the plaintiff's delay in bringing the matter to trial was attributable to a misdirected notice by the court clerk.

 The Campanella court criticized our decision in Karubian for (in its view) not properly applying the decision of the California Supreme Court in Weeks v. Roberts (1968) 68 Cal.2d 802, 69 Cal.Rptr. 305, 442 P.2d 361.) 3

 In Weeks a trial judge set a case for trial three days before expiration of the five-year period.   Seventeen days before trial, and after pretrial was completed, a different judge granted the defendant's motion to vacate the trial date after finding that plaintiff's failure to allow sufficient time for ordinary setting was inexcusable.

The Supreme Court reversed, holding that “a trial court should not confuse and discredit the law by refusing to set a cause within the five-year period because it believes that a discretionary dismissal is warranted.”  (Weeks v. Roberts, supra, 68 Cal.2d 802, 806, 69 Cal.Rptr. 305, 442 P.2d 361.

Apparently the second trial judge's decision was largely based on the difficulty in providing a courtroom because the Weeks Court pointed out that “[i]f a court feels impelled to dismiss an action less than five years after its filing for want of prosecution, it should do so and accept review on that basis.   It should not exercise its discretion to dismiss on the basis of inconvenience to the court and in the guise of a refusal to specially set.   It is monstrous to foreclose a litigant's substantial rights because of the inconvenience incident to providing a courtroom.”  (Id., at p. 807, 69 Cal.Rptr. 305, 442 P.2d 361.)

However, the Weeks Court clearly distinguished the case before it from cases in which pretrial proceedings had not been held.  “The question of what would constitute a reasonable time for pretrial and trial is more difficult than the question of a reasonable time within which to provide a courtroom for commencement of trial where pretrial proceedings have been held, and we do not decide it here.”  (Ibid.)

The Court then pointed out that such cases as General Ins. Co. v. Superior Court (1966) 245 Cal.App.2d 366, 53 Cal.Rptr. 777 and Stuart v. Hollywood Turf Club (1956) 146 Cal.App.2d 261, 303 P.2d 897, which upheld denial of a motion for trial preference “may continue to control setting matters encompassing pretrial and trial for periods of less than 28 days,” but went on to say that “a preferred procedure would be to grant preferential dates expressly without prejudice to a motion to dismiss.”  (Weeks v. Roberts, supra, 68 Cal.2d 802, 808, 69 Cal.Rptr. 305, 442 P.2d 361.)

Appellants contend that when the Supreme Court states a preference for a procedure, the procedure becomes mandatory, relying on language in Bozanich v. Kenney (1970) 3 Cal.3d 567, 570, 91 Cal.Rptr. 286, 477 P.2d 142, in which the Court says that its prior statement that “we prefer the Whitmore [v. French (1951) 37 Cal.2d 744, 235 P.2d 3] language ․ leaves no doubt of its purpose to disapprove the use”, in this case, of another jury instruction.

However, the Supreme Court's specific language quoted above, that certain cases may continue to control in certain instances, confirms that its statement of preference was not a mandate.

The Supreme Court further confirmed this interpretation in Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 194 Cal.Rptr. 773, 669 P.2d 9.   In Wilson the Court approved the action of a trial judge who, rather than denying a motion to specially set, initiated a dismissal motion for failure to prosecute and dismissed the action under Code of Civil Procedure section 583, subdivision (a).   However, the Wilson Court pointed out that a plaintiff should anticipate “that his diligence in prosecuting the action would be one of the issues canvassed in connection with the motion to specially set the case for trial.”  (Id., at p. 559, 194 Cal.Rptr. 773, 669 P.2d 9.)   These words indicate that the trial court had discretion to deny such a motion.

The Court clearly affirmed that discretion when, in discussing the motion for trial preference it said:  “The action of the court on such a motion is tantamount to action upon a motion to dismiss for failure to prosecute within the two-year period prescribed by section 583 of the Code of Civil Procedure;  in each instance the motion is addressed to its sound legal discretion;  the motivating factors in the exercise of that discretion would be pertinent to both motions;  and its decision ‘will be disturbed only in cases of manifest abuse.’ ”  (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d 554, 561, 194 Cal.Rptr. 773, 669 P.2d 9, quoting from Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 260, 10 Cal.Rptr. 314, emphasis added.)

The Campanella decision would reward a plaintiff's unreasonable procrastination with an automatic trial date.   The burden would then be on the court or the defendant to move for dismissal.   No defendant could rely on dismissal.   Thus, a defendant unwilling to expend substantial time and money preparing for a trial that is not even calendared could be placed in the unjust position of having to choose between going to trial ill-prepared or stipulating to a continuance.   Such a policy would completely thwart the legislative intent in enacting the five-year time bar.

The trial court had no mandatory duty to set the case for trial.

(2) Did Failure to Dismiss Under Section 583, Subdivision (a) Require Granting the Motion?

 Appellants point out that the action of the court on a motion for trial preference to avoid the five-year time bar has “traditionally invited an inquiry into the same factors which are relevant to a motion to dismiss under section 583, subdivision (a).”  (Wilson v. Sunshine Meat & Liquor Co., supra, 34 Cal.3d 554, 560–561, 194 Cal.Rptr. 773, 669 P.2d 9.)

The record does not contain a denial of a motion to dismiss nor does it indicate the court addressed such a motion.

However, appellants argue that the trial court's failure to rule on respondent's invitation to the court to dismiss the action on its own motion requires that the motion be deemed denied and that, since the same factors that would prompt denial of a motion to dismiss are those that would justify a motion for trial preference, the court's actions were inconsistent.

Appellants rely on cases in which failure to rule on a motion for a new trial was deemed denied under the specific provisions of Code of Civil Procedure section 660.  (Church v. Capital Freight Lines (1956) 141 Cal.App.2d 246, 247–248, 296 P.2d 563;  Richardson v. United etc. of Carpenters (1954) 129 Cal.App.2d 249, 276 P.2d 636;  Thompson v. Pioneer Laundry Co. (1942) 54 Cal.App.2d 360, 128 P.2d 915.)

The cited cases are clearly not applicable to the case at hand.   There is no statutory presumption involved here.

The court's failure to dismiss was actually to appellant's advantage.   While a dismissal of the action appears to have been justified, the court, in its discretion, gave appellants additional time in which they could have prepared more adequate moving papers to support a new motion for trial preference.

(3) Was Denial of Appellants' Motion An Abuse of Discretion?

“In passing upon the motion for an early and preferential setting, the court was not limited to a consideration of the single fact that the five-year period was about to expire but was required to view the total picture, including the dilatory action of the plaintiff, the condition of the court's calendar, the rights of other litigants, and the prejudice to the defendants resulting from the delay.”  (Beswick v. Palo Verde Hospital Assn., Inc., supra, 188 Cal.App.2d 254, 260, 10 Cal.Rptr. 314.)

We cannot determine the precise reasons why the trial court denied appellants' motion for trial preference because transcripts of the August 10 and August 13 hearings are not a part of this record.

However, it is obvious the trial judge gave appellants every opportunity to justify granting the motion by continuing the first hearing and inviting appellants to submit supplemental papers to augment the deficient moving papers filed prior to the first hearing.

 Appellants' failure to initiate discovery during the five-year period, their failure to give notice of the trial setting conference, their failure to restore the case to the civil active list in the ten months following its removal, their failure to submit the invited supplemental moving papers and the prejudice to respondent that resulted from appellants' delays are, taken together, more than sufficient justification for the denial of appellants' motion.

Appellants also attempt to rely on Vogelsang v. Owl Trucking Co. (1974) 40 Cal.App.3d 1068, 115 Cal.Rptr. 666 in which we found denial of a motion to specially set 46 days before the expiration of the five-year period to be an abuse of discretion.   However, in Vogelsang all discovery was complete except for defendant's medical examination of plaintiff and the issue was whether the case was ready for trial when no pretrial conference had been conducted.   We held that the action was in essentially the same stage of preparation as in the Weeks case because the parties had not requested a pretrial conference.

Appellants situation is entirely different.   They made no showing of readiness for trial notwithstanding the trial court's granting of a new hearing to enable them to do so.

 Moreover, since the transcript of the hearing of the particular motion here is not part of the record before us, we must presume the trial court's action was proper.  “ ‘A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ”  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.

The orders under review are affirmed.


1.   Former Code of Civil Procedure section 583, subdivision (b), applicable at the time of this action, provided in relevant part:  “Any action ․ shall be dismissed by the court ․ unless such action is brought to trial within five years after the plaintiff has filed his action․”

2.   Former Code of Civil Procedure section 583, subdivision (a), applicable at the time of this action, provided in relevant part:  “The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed.”

3.   Even if we were to agree with the Campanella decision, which we do not, we are unauthorized to overrule our own Karubian decision, a hearing thereof having been denied by the California Supreme Court.   “ ‘[W]hen the precise question of law has been decided by a District Court of Appeal and the Supreme Court has denied a hearing, such decision will be followed as settling the law in the absence of a later decision of the Supreme Court overruling or modifying the prior case.’ ”  (Estate of Brissel (1963) 218 Cal.App.2d 841, 844, 32 Cal.Rptr. 458, citing Housing Authority v. Peters (1953) 120 Cal.App.2d 615, 616, 261 P.2d 561.)   Unlike Karubian, no petition for hearing [now review] was requested in Campanella.   Thus it remains to be seen whether the imprimitur of the Supreme Court will remain upon our view expressed in Karubian or will be changed and placed upon the view expressed in Campanella.

BEACH, Associate Justice.

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

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