PACIFIC GREYHOUND LINES v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO (1945)

Petitioners request that a writ of mandate issue compelling respondent court to dismiss an action entitled ‘Mark B. Lane and Marjorie B. Lane, Plaintiffs, versus Earl Bagby, Sr., Earl Bagby, Jr., Pacific Greyhound Lines, a corporation,’ etc., under the provisions of Code of Civil Procedure, § 583.

The above section provides that an action ‘shall be dismissed * * * unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.’

The action was filed January 29, 1940, and was not brought to trial within five years of that date. On February 21, 1945, defendants moved to dismiss the action. The motion was denied in the superior court on March 20, 1945. On March 27, 1945, plaintiffs moved the court to restore said action to the active trial calendar to be set for trial. Defendants filed certain affidavits in opposition thereto. On the same day the petition herein was filed. On oral argument it was stipulated that the affidavits filed with the motion to set the case for trial should not be considered on the present petition.

The following facts are averred in a counter affidavit to defendants' motion to dismiss:

‘* * * that on or about the 20th day of December, 1940, plaintiffs filed a memorandum to set said cause for trial, and thereafter defendants made a demand for jury trial and the matter was thereafter put on the regular jury calendar; that the trial of the above action was set for hearing for March 3, 1941, but due to defendants' failure to deposit jury fees was forced to go off calendar;

‘Subsequent thereto, and on or about April 9, 1941, defendants' attorney Leighton Bledsoe informed plaintiffs' counsel, affiant herein that the co-defendant Earl Bagby, Jr. had enlisted in the Armed Services in March of 1941, and attorney Bledsoe further stated that the matter would have to remain off calendar; it was thereupon orally stipulated between counsel for plaintiffs and defendants that said matter would remain off calendar pending the return of Earl Bagby, Jr. to civilian status.

‘That from time to time affiant made inquiry as to Earl Bagby, Jr.'s status, and was informed on several occasions by defendants' attorney that said defendant was still in the Service; that affiant is informed and believes that the said Earl Bagby, Jr. is still serving in the Armed Forces of the United States as of this date; that to continue to prosecute the case during the military absence of said defendant Earl Bagby, Jr. was impossible, impractical and a futile gesture; that the presence of Earl Bagby, Jr. is necessary to properly prosecute this action.’

There is no denial by defendants either in the trial court or on appeal that it was orally stipulated that the case should remain ‘off calendar’ pending the return of Bagby, Jr., and no denial of the fact that defendants' attorney solicited plaintiffs' attorney to stipulate to the continuances.

The rule set forth in section 583 received a strict interpretation in Rosefield Packing Co. v. Superior Court, 4 Cal.2d 120, 47 P.2d 716. In Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 219 P. 1006, a literal construction was adopted. Therein it was held that there must be a written stipulation and it must be certain and definite. At page 340 of 192 Cal., at page 1008 of 219 P., the court said: ‘The provision that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties.’

The general rule in California is that estoppel resulting from conduct is not a ground for avoiding dismissal under section 583. Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153; Bank of America v. Moore & Harrah, 54 Cal.App.2d 37, 128 P.2d 623. However, in these cases defendants merely adopted a method of delay contenanced in legal procedure, namely, a motion for a change of venue in the former and a petition in bankruptcy in the latter. In the present case the method pursued was not illegal but, nevertheless, might be called a device or artifice to obtain a continuance by which the delay resorted to by the defendant was used as an attempt to deprive the plaintiff of the right of trial. On the question of estoppel under such circumstances, see Benner v. Industrial Acc. Comm., 26 Cal.2d 346, 159 P.2d 24. In other cases broader exceptions based upon improper conduct and other reasons are found. As an intermediate appellate court the views of courts of equal jurisdiction are generally persuasive, but the decisions of the Supreme Court are binding in cases where the facts are similar. One clear exception is that the time during which the court has no jurisdiction to proceed with the trial shall be excluded, as, for example, the time during which an appeal from a judgment is pending (Kinard v. Jordan, 175 Cal. 13, 164 P. 894), or the time between the dismissal and the reinstatement, where contestants of a will were fraudulently induced to consent to a dismissal of their contest and later had the dismissal vacated. Estate of Morrison, 125 Cal.App. 504, 14 P.2d 102.

An exception was recognized in situations where the court retained jurisdiction to proceed to trial, but proceeding to trial would be impossible, impractical and futile. The court enunciated this modification in Christin v. Superior Court, supra. The court held that the time consumed in taking an appeal from an order granting a change of venue should be excluded even though the lower court did not lose jurisdiction to proceed with the trial. The court said (9 Cal.2d at page 532, 71 P.2d at page 208, 112 A.L.R. 1153): ‘The purpose of the statute is plain: to prevent avoidable delay for too long a period. It is not designed arbitrarily to close the proceeding at all events in five years, for it permits the parties to extend the period without limitation, by written stipulation.’

In Westphal v. Westphal, 61 Cal.App.2d 544, 143 P.2d 405, the court held that it would have been ‘practically futile’ if not ‘legally impossible’ for plaintiffs to go to trial while their co-plaintiffs' appeal was pending, and that the time consumed on this appeal should be excluded from the operation of section 583. In Bayle-Lacoste & Co. v. Superior Court, 46 Cal.App.2d 636, 116 P.2d 458, an action in eminent domain, the court held that a defendant who voluntarily enters an appearance after an elapse of five years, asking for affirmative relief, waives his right to have the action dismissed.

The case that is very much in point is Judson v. Superior Court, 21 Cal.2d 11, 129 P.2d 361. In that case the plaintiffs had made a reasonable but unavailing effort to serve defendants with process throughout the years intervening between the filing of the action and the hearing on the motion to dismiss under the provisions of section 583. It appeared that defendants had secreted themselves within the state or had resided out of the state with intent to evade service. The same contention is made in the present case as in the Judson case—that without written stipulation it was the duty of the court to dismiss. In the Judson case, 21 Cal.2d at page 14, 129 P.2d at page 363, the court said: ‘Under these circumstances, to require the plaintiffs to take the uncertain path of publication of summons against defendants who, they had been informed, were nonresidents, would reward subterfuge and make dishonesty profitable. The courts have recognized that the statute relating to dismissals although mandatory in form, should not be applied where, although the defendant was not guilty of acts tending to obstruct the administration of justice, it would have been impracticable for the plaintiff to have brought the action to trial. Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153; Estate of Morrison, 125 Cal.App. 504, 14 P.2d 102; and Kinard v. Jordan, 175 Cal. 13, 164 P. 894. The facts of the present case show much greater justification for an exception to the statutory requirement than those heretofore presented as the basis for an order denying a motion to dismiss.’ The court further observed that ‘the rule is not so rigid as to be without exception, and an action should not be dismissed when, as a result of the conduct or action of a defendant, the plaintiff may not proceed to trial with reasonable certainty that a judgment would conclusively determine the rights of the parties.’ Other cases upholding implied exceptions to the rule are: Burns v. Massachusetts, etc., Ins. Co., 62 Cal.App.2d 962, 146 P.2d 24; Allyne v. Superior Court, 200 Cal. 661, 254 P. 564; City of Los Angeles v. Superior Court, 15 Cal.2d 16, 98 P.2d 207; Martin v. Gibson, 48 Cal.App.2d 449, 119 P.2d 1012; Jackson v. Thompson, 47 Cal.App.2d 405, 118 P.2d 31; Bank of America v. Superior Court, 47 Cal.App.2d 359, 117 P.2d 932; Hibernia Sav. & Loan Soc. v. Lauffer, 41 Cal.App.2d 725, 107 P.2d 494.

The trial court in the present case had a right to consider the fact that the case was taken off the trial calendar on the request of the defendants; that at all times when the possibility of trial was discussed they repeated the assertion that it was impossible to go to trial while Bagby, Jr., was in the army. Defendant Bagby, Jr., however, did not apply for relief under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.Appendix, § 501 et seq. Plaintiffs claim that defendant Bagby Jr.'s presence was necessary to the presentation of their case.

However, there is no claim that at any time plaintiffs or defendant called the court's attention to the facts and the possibility of the application of section 521 of the Soldiers' and Sailors' Civil Relief Act. This section provides for a stay of proceedings, in which a serviceman is involved, by the court on its own motion or upon the application of the serviceman whenever it appears that his rights may be prejudiced by the continuance of the proceedings during the period of his military service. If a motion under the provisions of the Soldiers' and Sailors' Civil Relief Act had been presented there is no way of determining what the action of action trial court would have been, but plaintiffs may have been lulled into a sense of security by the actions of defendant in refraining from applying for relief.

Whether defendant's actions, taken collectively, constituted a ‘subterfuge’ (Judson v. Superior Court, supra) and attempt to delay the case, and subsequently to invoke the provisions of section 583, are questions to be determined solely in the discretion of the trial court. The section does not sanction a penalty against the innocent party for delay when it is impossible, impractical or futile to proceed. Christin v. Superior Court, supra; Carmichael v. Superior Court, 55 Cal.App.2d 406, 130 P.2d 725. Whether a factual situation exists which the Supreme Court has determined to be an exception to the mandatory language of the statute must be determined by the trial court. Unless there is a clear abuse of discretion appellate courts will not interfere. Hibernia Sav. & Loan Soc. v. Lauffer, supra; Cohn v. Rosenberg, 62 Cal.App.2d 140, 144 P.2d 399; Inderbitzen v. Lane Hospital, 17 Cal.App.2d 103, 61 P.2d 514; Allyne v. Superior Court, supra; City of Los Angeles v. Superior Court, supra. In Lake v. Superior Court, 39 Cal.App.2d 247, 249, 102 P.2d 1107, discussing section 583 the court said: ‘Thus the decision upon this application for a writ must rest upon the sold ground that when the trial court has acted within its jurisdiction upon a mixed question of law and fact its order, whether right or wrong, cannot be controlled by mandamus. Bank of America v. Superior Court, 22 Cal.App.2d 450, 452, 71 P.2d 296, 297.’

All of the exceptions which have been judicially recognized must be passed upon by the trial court. The order thereon ‘constitutes a judicial determination which may not be disturbed by the reviewing courts in a mandamus proceeding instituted for such purpose. Ewell v. Superior Court, 69 Cal.App. 629, 232 P. 153. In other words, as said by the Supreme Court in the case of Charles L. Donohoe Co. v. Superior Court, 202 Cal. 15, 258 P. 1094, 1095: ‘It is only when there is an entire absence of any showing constituting good cause presented in the superior court upon the hearing of the motion to dismiss that a writ of mandate to compel the dismissal of the action may properly issue. (Citing authorities.)’' Bank of America, etc., v. Superior Court, 22 Cal.App.2d 450, 453, 71 P.2d 296, 297.

The alternative writ issued herein is discharged and the application for a peremptory writ is denied upon the authority of Judson v. Superior Court, supra, and other cases cited herein.

WARD, Justice.

PETERS, P. J., and KNIGHT, J., concur.