Skip to main content


Reset A A Font size: Print

Court of Appeal, Fifth District, California.

Anthony MELLO, Plaintiff and Appellant, v. SAN JOAQUIN VALLEY PACKERS, INC. et al., Defendants and Respondents.

Civ. 7329 (F000556).

Decided: March 20, 1984

Howard Renge, Fowler and Lawson Renge, Fresno, for plaintiff and appellant. Dietrich, Glasrud & Jones and Myron F. Smith, Fresno, for defendants and respondents.


Plaintiff appeals from a judgment dismissing his action for lack of prosecution pursuant to the two-year discretionary dismissal statute.  (Code Civ.Proc., § 583, subd. (a).)  The action was filed August 7, 1978, and was dismissed on April 21, 1982, approximately three years and eight months after the complaint was filed.

The action was for breach of contract, conversion, fraud and goods sold and delivered.   The complaint seeks $30,395 for the value of an onion crop grown by the plaintiff and allegedly sold and delivered to the defendants.

There are three groups of defendants.   Each is represented by separate counsel.   The first group consists of San Joaquin Valley Packers, Inc., Gary Drew, Calvin Freeman and John Diedrich (hereinafter referred to as San Joaquin), which was represented by the law firm of Dietrich, Glasrud & Jones, by Donald H. Glasrud and Myron F. Smith.   The second group consists of Fresco International, Inc., William A. Mack, Diane Mack and Harold Kelly (hereinafter referred to as Group Two), represented by Attorney Jeffrey Nelson until he withdrew shortly before the dismissal.   The third group of defendants consists of A.R. Mack and Hector Monreal.   These defendants were never served with a complaint and summons (hereinafter referred to as the unserved defendants).

The motion to dismiss and dismissal were as to San Joaquin only.

A cross-complaint in indemnity was filed by San Joaquin against most of the second group of defendants and A.R. Mack.   Fresco International, Inc. and William A. Mack also filed a cross-complaint against plaintiff Mello.

San Joaquin promptly appeared in the action.

Of the Group Two defendants, Fresco International, Inc. and William A. Mack promptly appeared.   As to the defendant Harold Kelly, plaintiff's counsel granted an extension to appear to Attorney Nelson, and Harold Kelly did not file an answer to the complaint until April 25, 1980.   The long delay was due to the fact that Mr. Nelson's law firm moved its offices in April 1979 and subsequently Mr. Nelson changed employers, which necessitated another move of his office.

On November 3, 1980, plaintiff took the default of defendant Diane Mack.   Pursuant to Attorney Nelson's request, the plaintiff stipulated to set aside the default.   Diane Mack filed an answer on December 22, 1980.

Because the unserved defendants were never served, they never appeared in the action.

Plaintiff filed an at-issue memorandum on April 14, 1981.   On April 20, 1981, Attorney Nelson filed a counter at-issue memorandum on behalf of his clients which represented that all of the essential parties had not been served.

On September 21, 1981, the Fresno County Clerk's office sent the attorneys of record a “Notice of Trial and Settlement Conference” which scheduled a settlement conference for December 7, 1981, and trial for January 4, 1982.

On November 3, 1981, the attorneys stipulated that the trial date of January 4, 1982, be continued to May 3, 1982, which would allow time for the defendants to complete discovery, and plaintiff agreed to dismiss the two unserved defendants, Hector Monreal and A.R. Mack, before trial.

Early in 1982 San Joaquin moved to procure some records from the Department of Agriculture and on March 29, 1982, took the deposition of plaintiff.

On March 9, 1982, Attorney Nelson filed a motion to be relieved as counsel for the Group Two defendants for whom he had appeared, based upon the nonpayment of fees and the fact that he was unable to communicate with his clients as their whereabouts were unknown.   The motion was subsequently renoticed and a new declaration was filed by Nelson which stated that he had been able to locate his clients but they were unable to pay their bills.   The declaration included William A. Mack's address in Arizona.   The motion was heard and granted on April 13, 1982, followed by a formal order on April 19, 1982.

On March 15, 1982, pursuant to Code of Civil Procedure section 583, subdivision (a), San Joaquin filed a motion to dismiss.   Upon agreement with plaintiff's counsel, the 45-day notice period required by California Rules of Court, rule 203.5 (now rule 373), was waived and the hearing was held on April 21, 1982.   After argument, the motion was granted on that date.


 Plaintiff makes some very persuasive arguments that the trial court abused its discretion in dismissing the case pursuant to Code of Civil Procedure section 583, subdivision (a), including contentions that the factors set forth in California Rules of Court, rule 203.5(e), were not all considered or were in some instances misapplied.   He further argues that the court erred in relying upon the doctrine of presumed prejudice and in relying upon the fact that the plaintiff's opposition to the motion was filed more than 15 days after the motion (rule 203.5(b)), though the opposition was before the judge well before the time that he granted the motion.   We have concluded, however, that we need not decide the case on these arguments as we are of the opinion that the defendant, San Joaquin, was precluded from moving to dismiss the case until May 3, 1982, the trial date to which all parties had stipulated.

It appears plaintiff filed an at-issue memorandum on April 14, 1981.   On April 20, 1981, Attorney Nelson, on behalf of the Group Two defendants, filed a counter at-issue memorandum which represented that all essential parties had not been served.1  Nevertheless, on September 21, 1981, the trial court sent a notice of trial for January 4, 1982, to counsel of record.

Immediately thereafter, on September 24, 1981, San Joaquin's attorney wrote a letter to the court indicating that because of conflicts in his calendar he would be unable to try the case on January 4 and that he would be requesting a continuance.2  Counsel for the second group of defendants, on September 28, 1981, wrote a similar letter, stating a conflict and also pointing out that the case was not at issue, and indicated he would be requesting a continuance.

All parties met at court on November 3, 1981, and they stipulated that the case could be continued to and reset for trial on May 3, 1982.   Plaintiff agreed to dismiss the unserved defendants by that date.   A consideration in the length of the continuance was to permit the defendant San Joaquin an opportunity to do some discovery.   The trial court, pursuant to the stipulation, set the case for trial on May 3.   The plaintiff avers that he was ready to go to trial on January 4, 1982 (inferentially indicating that the unserved defendants would be dismissed) and that he did not intend to do any discovery.

Notwithstanding the aforesaid stipulation to a trial date of May 3, 1982, the defendant San Joaquin filed its motion to dismiss on March 5, 1982, and it was heard and granted on April 21, 1982—12 days before the trial date.

In Knight v. Pacific Gas & Elec. Co. (1960) 178 Cal.App.2d 923, 3 Cal.Rptr. 600, a dismissal proceeding under the two-year discretionary dismissal provisions of Code of Civil Procedure section 583, the court stated:

“A stipulation continuing a case for trial to a specified date precludes a defendant from obtaining a dismissal prior to that date (City of Los Angeles v. Superior Court, 185 Cal. 405, 408 [197 P. 79] ), but does not require the court to conclude, as a matter of law, that the defendant thereby waived or was estopped to assert a right to obtain a dismissal thereafter.  [Citations.]”  (Id., at p. 930, 3 Cal.Rptr. 600;  see also, City of Los Angeles v. Superior Court (1921) 185 Cal. 405, 408, 197 P. 79.)

 While the court in Knight did not explain the basis for the above enunciated principle, we think it can be found in the proposition that inherent in a stipulation to set a trial date is an implied waiver of the delay that has theretofore occurred and therefore the parties so stipulating are thereafter estopped to rely upon the previous delay.

Support for this position may be found in the analogous situation where a party who moves to dismiss and has previously filed an at-issue memorandum is estopped from relying on the previous delay.   Thus, in City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 133 Cal.Rptr. 212, the court concluded that on the merits the trial court was justified in entering a dismissal, but the trial court erred in entering the dismissal as to Gleneagle Development Co. because it had filed an at-issue memorandum.   The court stated:  “In short, we conclude that the conduct of Gleneagle, in filing its own at-issue memorandum, thus indicating that it was ready to proceed with the case, estopped it from thereafter relying on the previous delay.”   (Id., at p. 564, 133 Cal.Rptr. 212.)

A very similar rule has been applied in cases dealing with Code of Civil Procedure section 583, subdivision (a), dismissals where there has been a stipulation involving taking a demurrer off calendar and extensions of time in which to answer a complaint.   The courts in these cases have held that the delay caused by the stipulations would not be charged against the plaintiff for the purpose of upholding a discretionary dismissal.  (General Ins. Co. v. Superior Court (1975) 15 Cal.3d 449, 455–456, 124 Cal.Rptr. 745, 541 P.2d 289;  Meraia v. McCann (1978) 83 Cal.App.3d 239, 147 Cal.Rptr. 756.)

The judgment is reversed.


1.   Defendants A.R. Mack and Hector Monreal had not been served.

2.   The letter from San Joaquin's counsel read in relevant part as follows:“Dear Judge Hamlin:“I am in receipt of the Court's Notice of Trial in the above referenced action indicating a scheduled commencement date of January 4, 1982.   This is to advise that I have a conflicting trial date in United States District Court for the Northern District Action No. C–81–1064 AJZ, entitled Dean's Materials, Inc., a California corporation, et al., plaintiffs, v. Lawrence R. Borneman, et al., defendants.   This action is expected to commence jury trial on January 4, 1982 and is further expected to consume eight to ten weeks of trial time.“Accordingly, at the settlement conference on December 7, 1981 I will request a continuance of the trial date in the above referenced action.”

GEO. A. BROWN, Presiding Justice.

FRANSON and ZENOVICH, JJ., concur.

Copied to clipboard