GOODMAN v. TABAN

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

Leonard GOODMAN, Plaintiff and Appellant, v. Asher TABAN, M.D., Defendant and Respondent.

No. B023890.

Decided: November 12, 1987

Girardi, Keese and Crane, and James B. Kropff, Los Angeles, for plaintiff and appellant. Dummit, Faber & Brown, and David A. Heck, Los Angeles, for defendant and respondent.

This is an appeal from an order of dismissal for delay in prosecution under Code of Civil Procedure section 583.420.   We reverse and hold that under Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346, 228 Cal.Rptr. 504, 721 P.2d 590, the trial court must look at all the factors in the case and may not dismiss merely because of the lapse of time.

On August 4, 1983, appellant, Leonard A. Goodman, filed a complaint against respondent, Dr. Asher Taban.   Two years and nine months later, on March 11, 1986, respondent was served with a summons and complaint.

A month later, on April 22, 1986, respondent filed an answer to the complaint along with six affirmative defenses.   That same day, respondent propounded his first set of interrogatories to appellant along with a request for specification of damages.   Three weeks later on May 12, 1986, appellant filed a notice of deposition for the taking of respondent's deposition.   Later on June 6, 1986, respondent filed a motion to dismiss for failure to prosecute.   Four days later, June 10, 1986, appellant was notified that respondent would not be present at the scheduled deposition which had been scheduled for June 11, 1986.   Appellant then changed the date of the deposition to July 29, 1986.   Later that month, on June 24, 1986, appellant responded to a request for production of documents.

On July 14, 1986, appellant provided respondent with copies of discoverable information including:  “medical bills;  medical reports;  medical records;  documentation regarding loss of earnings and earning capacity;  medical, health and disability insurance policies;  medical containers, labels, prescriptions, notes and letters to doctors;  notes, calendars, diaries, and other memoranda;  all correspondence;  photos, slides, motion pictures, and videotapes.”

Thereafter, on July 18, 1986, appellant's attorney John A. Girardi, filed opposition to the motion to dismiss in which he detailed all of the efforts his office had undertaken in the case including the facts set forth, supra.   Additionally, he indicated the case had been assigned to an attorney who had left the office in the summer of 1984.   When the attorney had left the office, the attorney's files regarding the case had been lost and Mr. Girardi had assumed responsibility for the case.   Mr. Girardi had immediately sent out copies of appellant's medical records to medical experts in an attempt to find a doctor who could provide further review and testify as to respondent's lack of care in the treatment of appellant.   Thereafter, in October 1985, Mr. Girardi caused the complaint to be dismissed against several other doctors who had been named as defendants.   Finally, after further meetings with his consulting physicians, respondent had been served with the summons and complaint.   Additionally, Mr. Girardi indicated it was his intent to file the at issue memorandum as soon as he took respondent's deposition.

The motion to dismiss came up for hearing on July 25, 1986.   At that time the trial court continued the matter at respondent's request in order to allow respondent time to provide proof of actual prejudice.   Prior to granting the continuance, the court indicated the motion would be denied if no prejudice were shown.   Concurrently, the court indicated respondent's moving papers were to be filed by August 13 and appellant's opposition was due by August 20.   Even though respondent's papers were due to be filed by August 13, respondent did not sign his declaration until August 14, and the declaration was not filed with the court until August 19, 1986.   Even though the papers were not timely filed, counsel for respondent sent appellant's copy by mail.   As a result, counsel for appellant did not receive the moving papers until August 18.   Consequently, appellant's attorneys had to attend the August 22 hearing without having had time to file written opposition.

Upon examination, respondent's proof of prejudice amounted to declarations by respondent and another treating doctor that so much time had passed that they had little or no recollection of the events that had occurred.

Following the hearing of August 22, the court granted the motion to dismiss.   Appellant filed a motion for reconsideration which was denied and on October 21, 1986, the court filed an amended order for entry of judgment which stated (1) respondent had been prejudiced by the delay in service, and (2) there was no excuse for the delay in service of the complaint.

Given the procedural history of the case, the representations made to the court in July, as well as the nature of the affidavits supplied by respondent, and the court's own language in its order of dismissal, it is clear that the trial court found that there was actual prejudice and that this showing of prejudice overcame any possible justification for the delay.

Code of Civil Procedure section 583.420 provides in relevant part:  “(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:  [¶] (1) Service is not made within two years after the action is commenced against the defendant.”

In reviewing motions to dismiss, a reviewing court should not reverse the trial court's decision unless it has been shown that the trial court abused its discretion, and it is apparent that there has been a miscarriage of justice.   Moreover, the burden is on the complaining party to establish the abuse of discretion.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)

In Longshore v. Pine (1986) 176 Cal.App.3d 731, 736–737, 222 Cal.Rptr. 364, the court noted that the appellate courts of this state appear to be in disagreement as to whether the defendant needs to show prejudice in a motion to dismiss, such as the one before this court.   There the court held the dismissal proper, even though the defendant had not made a showing of prejudice.   In effect, the Longshore court inferred prejudice from the passage of time.

However, since Longshore was decided, the California Supreme Court in Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at page 346, 228 Cal.Rptr. 504, 721 P.2d 590, quoting from Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 561, 194 Cal.Rptr. 773, 669 P.2d 9, stated:

“ ‘ “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 defendant resulting from the delay.  [Citations.]  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.’ ” '  (Id., at p. 561 [194 Cal.Rptr. 773, 669 P.2d 9];  quoting Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 260 [10 Cal.Rptr. 314];  italics deleted.)”  (Emphasis added.)

Later in the opinion the court stated:  “․ we conclude that although the interests of justice weigh heavily against disposing of litigation on procedural grounds—a policy we reaffirm—that policy will necessarily prevail only if a plaintiff makes some showing of excusable delay.  [Citations.]”  (Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at p. 347, 228 Cal.Rptr. 504, 721 P.2d 590.)

Here, appellant made such a showing.   His counsel clearly indicated the problems that had occurred in the case including the losing of the file once the attorney originally assigned to the case left the law firm and the steps that new counsel had taken to insure that the case would proceed as promptly as possible.   On the other hand, respondent made no showing of prejudice other than the failure of memories that occur in any case as it proceeds to trial.   We also note that inevitably it was respondent's counsel who prevented respondent's deposition from being taken on two separate occasions.

Salas teaches us:  (1) there is a preference for a trial on the merits whenever possible;  (2) the plaintiff must make some showing of excusable delay, and (3) once that showing is made, the trial court must weigh all of the factors before coming to its decision.   In the case at bar, we believe the trial court erred in weighing these factors and that as a result a miscarriage of justice has occurred.

The order appealed from is reversed.   The complaint is reinstated and the matter is remanded to the trial court for further proceedings consistent with this opinion.

Appellant to recover costs.

I dissent.

On the authority of Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346, 228 Cal.Rptr. 504, 721 P.2d 590, the majority reverses the trial court's order of dismissal for delay in prosecution under Code of Civil Procedure section 583.420, subdivision (a)(1) because “the trial court must look at all the factors in the case and may not dismiss merely because of the lapse of time.”  (Majority opn., ante, p. 663.)

I submit the record demonstrates clearly that (1) the trial court considered the appropriate factors in the case, (2) appellant failed to make the requisite showing of excusable delay, and (3) apart from the inference of prejudice from appellant's failure to effect service until seven months after expiration of the statutory two-year period, respondent made a sufficient showing of actual prejudice.   Under the foregoing circumstances, this court is compelled under the Supreme Court's decision in Salas to uphold the trial court's exercise of discretion in dismissing the complaint.

The following chronology highlights the salient events pertinent to appellant's claim that the dismissal was erroneous.

PROCEDURAL HISTORY

In support of the motion to dismiss, respondent filed the declaration of his counsel David A. Heck, which indicated in part:  “Due to the fact that the alleged negligence arose almost four years ago, contacting witnesses, finding the complete facts, and completing investigation into this claim will place the defendant at a great disadvantage in this action.”

Additionally the declaration of respondent Dr. Taban was filed, stating in part:  “I have very little recollection of the events surrounding my participation in the care and treatment of the plaintiff, independent and apart from entries reflected in my office records and the medical chart of the plaintiff, Leonard Goodman, from Northridge Hospital Medical Center.   I have little, if any, recollection of any conversations that were not noted in the medical chart of the plaintiff, including conversations with the plaintiff, his wife and family, Dr. Yook, Dr. Ziman, Dr. Chernoff, Dr. Schultz, and nurses at Northridge Hospital Medical Center due to the fact that it has been four (4) years since I provided care and treatment to the plaintiff, Leonard Goodman.”   Respondent also filed the declaration of Dr. Richard Yook, who was appellant's treating physician and originally named as a defendant in this action.   Dr. Yook similarly had “very little recollection of the events and conversations” in question.

At the conclusion of a hearing held on August 22, 1986, the trial court ordered the action “dismissed for lack of diligent prosecution.”   At a further hearing held on October 21, 1986, upon appellant's motion for reconsideration, the court denied reconsideration and ruled:  “After full consideration of the evidence, points and authorities submitted by both parties, and oral argument of counsel, it appears, and the Court finds that Defendant, ASHER TABAN, M.D., has shown by admissible evidence or inferences that Plaintiff delayed almost two (2) years and nine (9) months [3 ] in serving the Summons and Complaint on Defendant, that this delay in service of the Complaint has caused prejudice to the Defendant, that Plaintiff had no adequate excuse for failure to serve the Summons and Complaint on Defendant in a timely manner and therefore, that Defendant is entitled to dismissal of Plaintiff's complaint pursuant to Code of Civil Procedure § 583.420(a)(1) for failure to serve the Summons and Complaint within two (2) years after the action was commenced against the Defendant.   Therefore, the said moving party, ASHER TABAN, M.D., is entitled to judgment as a matter of law.

“IT IS THEREFORE ORDERED that the Motion to Dismiss the Complaint is granted and that judgment shall be entered forthwith as requested in said Motion in favor of Defendant, ASHER TABAN, M.D., and against Plaintiff, LEONARD GOODMAN.”

The trial court's final order of dismissal was premised solely on appellant's failure to serve respondent within the required two-year period (Code Civ.Proc., § 583.420, subd. (a)(1)) and not on the additional ground urged by respondent, namely appellant's failure to bring the action to trial within the required three-year period (Code Civ.Proc., § 583.420, subd. (a)(2)).

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT APPELLANT'S DELAY WAS NOT EXCUSABLE

With reference to motions to dismiss for failure to prosecute, the Supreme Court has held:  “When the trial court has ruled on such a motion, ‘ “unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” ’  [Citations.]  ‘ “The burden is on the party complaining to establish an abuse of discretion․” ’  [Citation.]”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.   See also Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at pp. 345–346, 349–350, 228 Cal.Rptr. 504, 721 P.2d 590.)

The case law draws a distinction between failure to effect timely service of the summons and complaint, and failure after proper service to bring the action to trial within the period specified by law.   Less latitude is allowed in the case of unexcused delay in service.

This distinction was recognized in Adams v. Roses (1986) 183 Cal.App.3d 498, 506, 228 Cal.Rptr. 339, and Longshore v. Pine (1986) 176 Cal.App.3d 731, 735, 222 Cal.Rptr. 364, both Second District cases involving medical malpractice claims.  Adams and Longshore relied substantially on Lopez v. Larson (1979) 91 Cal.App.3d 383, 153 Cal.Rptr. 912, which held:  “Also significant in the case at bench is the nature of the delay—a two-year-four-month delay in serving the sole defendant.   Delay in effecting service constitutes a particularly pernicious form of delay in terms of potential prejudice, for the defendant during the period of that delay may be unaware that the action has been filed and thus not alerted to the necessity for making discovery, interviewing witnesses and preserving evidence essential to his defense.   Even if witnesses do not become unavailable, their memories of details such as times and dates and the specific words used in critical conversations will fade.   Although in the case at bench there was no express averment in the declarations filed in support of the motion to dismiss that defendant was unaware of the pendency of the action, the declaration executed by Attorney Field strongly suggests that that was true, and the great potential for prejudice to a defendant in such circumstances was pointed out to the trial court in the memoranda of points and authorities submitted by defendant.”   (Id., at pp. 402–403, 153 Cal.Rptr. 912.   See also Cubit v. Ridgecrest Community Hospital (1987) 194 Cal.App.3d 1552, 240 Cal.Rptr. 346.)

Under subdivision (b) of section 583.420 pertaining to discretionary dismissals, the time within which service must be made is computed in the same manner as the time provided for mandatory dismissals.   Thus among the various periods excludable from the time in which service must be made is the time during which “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control.   Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.”  (Code Civ.Proc., § 583.240, subd. (d), emphasis added.)

It is readily apparent that appellant offered no valid excuse for the delay in serving respondent.   Respondent's identity had been ascertained by appellant prior to the filing of the complaint in August of 1983 which named respondent as a defendant.   The departure of the attorney handling appellant's case from the law firm retained by appellant and the inability of the successor attorney in the same firm to locate the departed attorney's records do not explain or justify appellant's failure to serve respondent within the one year which remained for service under section 583.420, subdivision (a)(1).   As the court held in Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 134, 140, 199 Cal.Rptr. 295, “Plaintiffs' counsel, by a single phone call, letter, or visit to the clerk's office ․ could have discovered the inactive status of the case in ample time to remedy the situation.”   Thereafter, the act of locating and serving respondent, a licensed California physician ultimately served at his office in Northridge, should not have taken much time or effort since his identify was apparent from the face of the complaint.

Nor did the attempts by appellant's second counsel between June of 1984 and February of 1986 to obtain review of the medical records by experts explain or justify the failure to effect service before the August 1985 deadline.   As the court expressly held in Adams v. Roses, supra, 183 Cal.App.3d at pages 504–505, 228 Cal.Rptr. 339, the time during which a plaintiff alleging a medical malpractice claim engages in the review of his case with one or more medical experts and obtains a certificate of merit, as required under Code of Civil Procedure section 411.30, does not toll the two-year period;  subdivisions (b)(2) and (b)(3) of section 411.30 set forth the circumstances under which compliance with the requirements of section 411.30 may be postponed or excused.  “The trial judge properly found that the two and one-half year pursuit of a favorable expert opinion did not justify the delay.”  (Adams v. Roses, supra, 183 Cal.App.3d at p. 506, 228 Cal.Rptr. 339.)

In House v. State of California (1981) 119 Cal.App.3d 861, 881, 174 Cal.Rptr. 279, the court held that, “[a]lthough illness and disruption in a small law firm has constituted cause for delay under particular facts” in bringing a case to trial (citing Denham v. Superior Court (1970) 2 Cal.3d 557, 560–563, 86 Cal.Rptr. 65, 468 P.2d 193), the terminal illness of the sole practitioner's father in House was an inadequate excuse for the attorney's taking almost three years to serve a summons and complaint.

Similarly in White v. Mortgage Finance Corp. (1983) 142 Cal.App.3d 770, 775, 191 Cal.Rptr. 277, the court held:  “Delay attributable to sickness or death of counsel or of the parties is not necessarily excusable.   Each case must be decided on its own peculiar features and facts.  (Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 254, 261 [10 Cal.Rptr. 314]․)”  In rejecting the plaintiffs' contention that the dismissal order should be reversed, the court in White noted that there was but a brief period of delay between the time original counsel died and new counsel was retained.   The court pointed out:  “No explanation is given as to why their first attorney did nothing to advance the case ․ or why their second attorney was likewise inactive until ․ more than one and a half years after being retained.”  (142 Cal.App.3d at p. 774, 191 Cal.Rptr. 277.)  “As stated recently by the Supreme Court, the policy of disposing of litigation on the merits does not prevail unless the plaintiff makes some showing of excusable delay.  (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 347 [228 Cal.Rptr. 504, 721 P.2d 590]․)”  (Cubit v. Ridgecrest Community Hospital, supra, 194 Cal.App.3d at p. 1567, 240 Cal.Rptr. 346.)

I submit appellant clearly has failed to demonstrate that the substantial delay in serving respondent was excusable.   There has been no showing, and certainly there can be no assumption, that appellant's counsel's inability to locate the original attorney's records would, with diligence on his part, warrant taking an additional year to locate and serve respondent.4

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT RESPONDENT WAS PREJUDICED BY APPELLANT'S DELAY

There is substantial authority to the effect that where there has been failure to prosecute, prejudice to the defense from the delay need not be demonstrated.  (Blank v. Kirwan, supra, 39 Cal.3d at p. 332, 216 Cal.Rptr. 718, 703 P.2d 58.)   It has been held that where the delay involves service of the summons and complaint, prejudiced is inferred.  (Longshore v. Pine, supra, 176 Cal.App.3d 731, 735, 222 Cal.Rptr. 364.)  “[U]nder the rule affirmed in Blank there was no requirement that the defendant here make a showing of prejudice before the action could be dismissed for delay in prosecution.”   (Longshore v. Pine, supra, 176 Cal.App.3d at p. 736, 222 Cal.Rptr. 364.)   Blank holds that even if a defendant has not been prejudiced, dismissal may still be had because “ ‘ “[t]he legislative policy ․ too, is to expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.”  [Citations.]’ ” (Ibid.)

Assuming, arguendo, that a showing of prejudice was required, the trial court's ruling was supported by the inference of prejudice that arises from appellant's failure to serve respondent until two years and seven months after the complaint was filed.   Additionally, actual prejudice was sufficiently established by the three declarations filed by respondent indicating that his and Dr. Yook's “memories of details such as times and dates and the specific words used in critical conversations [have] fade[d].”  (See Lopez v. Larson, supra, 91 Cal.App.3d at p. 403, 153 Cal.Rptr. 912.   See also Adams v. Roses, supra, 183 Cal.App.3d at p. 506, 228 Cal.Rptr. 339;  cf. City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 562, 133 Cal.Rptr. 212.)

CONCLUSION

The trial court's order, set forth above, reflects that it considered the appropriate factors in dismissing the action.  (See Code Civ.Proc., § 583.130;  Cal. Rules of Court, rule 373(e).)   The trial court allowed the parties ample opportunity to present their respective positions both at the original hearing and upon appellant's motion for reconsideration.

For the foregoing reasons, I conclude that the trial court acted well within its discretion in dismissing the complaint, and I would affirm the judgment of dismissal.5

FOOTNOTES

FOOTNOTE.  

FN1. Quoted dates and activity are as described in the declaration of appellant's counsel John A. Girardi..  FN1. Quoted dates and activity are as described in the declaration of appellant's counsel John A. Girardi.

FN2. August 3, 1985, fell on a Saturday.  (See Code Civ.Proc., § 12a.).  FN2. August 3, 1985, fell on a Saturday.  (See Code Civ.Proc., § 12a.)

3.   In fact the delay amounted to two years and seven and a half months.

4.   The majority opinion's references to the relative responsibility of the parties for the delay in discovery has no bearing on the excusability of the delay in service, since the discovery proceedings in question all took place well after expiration of the two-year statutory period and subsequent to the service of the complaint and summons on respondent.

5.   I would deny respondent's request for sanctions under Code of Civil Procedure section 907.

MUNOZ, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

KINGSLEY, Acting P.J., concurs.

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