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SHAW v. KAPLAN (1974)

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

Edna SHAW, Plaintiff and Appellant, v. Arthur H. KAPLAN, Individually and dba K/B Development Company, et al., Defendants and Respondents.

Civ. 41823.

Decided: January 21, 1974

Richard A. Kleinrock, Los Angeles, for plaintiff and appellant. Wyman, Bautzer, Rothman & Kuchel, and Judith O. Stein, Beverly Hills, for defendant and respondent Arthur H. Kaplan, individually and dba K/B Development Co. Morgan & Roper and James L. Roper, Los Angeles, for defendants and respondents John McNeil and Homer Norman.

Plaintiff appeals from an order dismissing her personal injury action for failure to bring it to trial within five years of the date the action was commenced, the dismissal having been ordered pursuant to section 583, subdivision (b)1 of the Code of Civil Procedure.2 We reverse, holding that pursuant to the decision of our Supreme Court in Tresway Aero, Inc. v. Superior Court, 5 Cal.3d 431, 96 Cal.Rptr. 571, 487 P.2d 1211, we are required to consider whether defendants are estopped to seek dismissal under the statute, and that such consideration clearly demonstrates that an estoppel exists.

No purpose would be served by detailing here the many decisions which have held that application of the section is mandatory and jurisdictional, and that statutory and judicially declared exceptions to its operation are strictly construed in scope and sharply limited in operation.3 We have no doubt that under the traditional approach to section 583, the facts of the instant case which we will discuss below, would require the trial court to grant a motion to dismiss the action despite the extremely harsh consequences of such a result.

The majority of the Supreme Court, however, has now held that there is ‘a change in judicial attitude away from ‘mechanical application’ of sections 581a and 583. To limit estoppel to cases of representations to laymen and of stipulations in open court would be to return to a policy of mechanical infliction of injustice in the present case and in many cases to follow; it would make irrelevant any effort by the trial court to inquire into ‘all the circumstances in the individual case, including the acts and conduct of the parties' [citing General Motors v. Superior Court, 65 Cal.2d 88, 96, 52 Cal.Rptr. 460, 416 P.2d 492]; it would deprive the trial court in most cases of a tool—the doctrine of equitable estoppel—long found essential to subserve ‘the ends of substantial justice’ [citing Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 741, 329 P.2d 489]; it would relegate section 581a cases to a special preserve in which deception pays, and technical precision prevails over substantial justice.' (Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d at p. 440, 96 Cal.Rptr. at p. 577, 487 P.2d at p. 1217)4 The court referred to the ‘venerable doctrine of estoppel’ as affirming that one person may not by his conduct lull another into a false sense of security so that the latter forebears to do something which he otherwise would have done only to find that the former takes advantage of the inaction caused by his own conduct. (5 Cal.3d at pp. 437–438, 96 Cal.Rptr. 571, 487 P.2d 1211.) The court continued ‘Notwith-standing the desirability that actions be promptly filed and diligently prosecuted [citation omitted], we have held that a defendant may be estopped from raising the statute of limitations and from urging the defense of failure to file a timely claim. Although cases are in conflict on whether a defendant may be estopped to seek dismissal for failure to bring an action to trial within five years (Code Civ.Proc. § 583), the most recent decision of this court upholds estoppel. Woley v. Turkus (1958) 51 Cal.2d 402, 408, 334 P.2d 12 . . .. [Footnotes with citations omitted].’ (5 Cal.3d at p. 438, 96 Cal.Rptr. at p. 576, 487 P.2d at p. 1216.)

Turning to an argument that estoppels to move for dismissals (arising in cases where extensions of time had occurred) should be confined to extensions which have been stipulated to in open court, the majority stated ‘We perceive no logical reason why the doctrine of estoppel should be so restricted. Stipulations in open court are not the only words or conduct which reasonably and commonly induce reliance by counsel. When the defendant induces the plaintiff to delay service of summons, or to overlook errors in service, and the plaintiff's reliance is reasonable, an estoppel is essential to prevent the defendant from profiting from his deception. In such a case, any distinction between words spoken in open court or over the telephone, or between words spoken to an attorney or to a layman would be purely arbitrary.’ (5 Cal.3d at pp. 439–440, 96 Cal.Rptr. at p. 577, 487 P.2d at p. 1217.)

With this background we turn to the facts of the case now before us. Plaintiff's action was filed on July 12, 1967. Defendant Kaplan and defendant McNeil were separately represented.5 McNeil answered in 1968 and Kaplan in 1969. There is no contention that plaintiff's counsel was not diligent in doing that which was necessary to prepare the action for trial. The delays in answering were the result of defense requests predicated on the need to wait the outcome of a workmen's compensation proceeding arising out of plaintiff's accident. On September 23, 1969, plaintiff caused an at-issue memorandum to be filed with the superior court. Settlement discussions ensued and counsel for McNeil offered to settle by contributing the full amount of his insurance coverage. In July and October 1971, plaintiff inquired of the court as to the status of the case. He was advised, in October, that within one to four months he would receive a notice of eligibility to file a certificate of readiness. The notice of eligibility having been received on December 13, 1971, plaintiff's counsel sent it to counsel for McNeil. The latter signed and returned it on December 21, 1971, again saying in his letter of enclosure that his client would contribute the amount of liability coverage toward settlement of the matter. Counsel for Kaplan signed and returned the certificate promptly and it was filed on December 31, 1971. On January 4, 1972, plaintiff's counsel received notice of a trial setting conference to be held March 13, 1972 and immediately gave notice of this date to opposing counsel.

McNeil's attorney did not attend the trial setting conference, having previously advised plaintiff's counsel that he would accept any trial date. The attorney for plaintiff asked for the earliest available date. Counsel for Kaplan, however, inquired as to the latest available date for trial and on being told that June 19, 1972 was the latest date being assigned stated that no one in his firm would be available for trial that soon. Counsel for plaintiff then consented that the trial setting conference be continued to May 4, 1972. The minutes of the court for the March 13, 1972 trial setting conference state that it ‘is continued to May 4, 1972 . . . because counsel for [Kaplan] request a trial date after June 19, 1972.’

On being given notice of the continued date McNeil's counsel repeated his offer to cooperate in any possible way and to contribute policy limits in settlement. He did not appear at the May 4, 1972 conference, again stating that any trial date was acceptable. The declaration of counsel for plaintiff, filed in opposition to the subsequently made motion to dismiss the action establishes that Kaplan's counsel ‘requested July 28, 1972 for the trial date. Declarant agreed to accommodate him and the clerk set the case for trial on that date and the mandatory settlement conference for July 7, 1972.’

On being notified of these dates McNeil's counsel stated, in a letter, ‘We will cooperate in connection with the settlement conference set for July 7, 1972, and subsequent trial.’ (Emphasis added.)

The matter was not settled at the mandatory settlement conference. On July 14, 1972, counsel for each defendant filed a notice of motion to dismiss pursuant to section 583, subdivision (b). The motion was subsequently granted.

It has been emphasized that in determining whether an estoppel to move for dismissal should be imposed it is ‘the duty of the trial court to examine all the acts and conduct of the parties, and render a discretionary decision with a view to furthering the ends of justice. . . .’ (Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d 431, 440, 96 Cal.Rptr. 571, 577, 487 P.2d 1211, 1217.) (Emphasis by the Supreme Court) Using this standard we have no hesitancy in holding that the responsibility for plaintiff's failure to bring the action to trial within the required time is founded on the conduct of defense counsel, particularly counsel for Kaplan. It is true that had plaintiff's counsel been more alert, he would not have acquiesced in a trial setting date which was beyond the five year period. The record is crystal clear, however, that the case could and would have been set for trial well within the five year period had not counsel for Kaplan asked for a later date. It is also clear that throughout this time the codefendant continued to offer a substantial sum in settlement. It is thus apparent that plaintiff possessed a cause of action with substantial value. It is likewise apparent that counsel for plaintiff, accommodating his professional brother's request for a late trial date, was lulled into believing that plaintiff would have her day in court on July 28, 1972. In addition to the request for a July 28, 1972 trial date, counsel for plaintiff had been told by McNeil's counsel that he would cooperate ‘at the subsequent trial.’

The facts here appear even stronger than those held sufficient to create an estoppel in Tresway. There the extension in question was not granted in open court. Here, unlike Tresway but like the situation occurring in Govea v. Superior Court, 26 Cal.App.2d 27, 78 P.2d 433, defendant's request for a continuance appeared in the court's minutes and was made during a trial setting conference.6 The second such conference was likewise attended by counsel for Kaplan who asked the court for the date assigned.

The changed judicial attitude remarked upon in Tresway, to which we here conform, allows to plaintiff her day in court. It thus effectuates the more ‘powerful’ policy which favors disposition on the merits, over the policy which seeks to prevent unreasonable delays in litigation. (Denham v. Superior Court, 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.) This result in no way eliminates section 583. It is still true that ‘. . . [t]he policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law. . . .’ (Transit Ads, Inc. v. Tanner Motor Livery, Ltd., 270 Cal.App.2d 275, 282, 75 Cal.Rptr. 848, 852.) That is a far different matter than the facts presented by this record.

We hold only that under the facts of this case, plaintiff having been diligent except for keeping an eye on the five year period, and that single lapse having occurred as a result of the conduct of the defense, ‘the ends of substantial justice’ require the invocation of the doctrine of estoppel.

It is unnecessary for us to consider the further contention of plaintiff that because of the continued trial setting conference it was impracticable and futile for him to proceed to trial within the five year period.

The order is reversed.



1.  All statutory references are to the Code of Civil Procedure.

2.  Section 583, subdivision (b) states: ‘Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.’

3.  Many of the cases illustrating a restricted application of the doctrine of estoppel to the mandatory dismissal provisions of section 583, subdivision (b) are collected and analyzed in the dissenting opinion in Tresway Aero, Inc. v. Superior Court, supra, 5 Cal.3d 431, 442–446, 96 Cal.Rptr. 571, 487 P.2d 1211. Other cases emphasizing the mandatory operation of the section include Tunis v. Superior Court, 59 Cal.2d 465, 30 Cal.Rptr. 135, 380 P.2d 823; Sacramento T. Co. v. California Reclam. Co., 205 Cal.2d 42, 269 P. 640, and Camille's Corp. v. Superior Court, 270 Cal.App.2d 625, 75 Cal.Rptr. 868. See also 4 Witkin, Cal. Procedure, 2d ed. 2754, 2773.

4.  Tresway involved the likewise mandatory provisions of section 581a, requiring dismissal if summons was not served and returned within three years of the commencement of an action. However, both the majority and dissenting opinions in the case treated the application of estoppel as being the same, no matter which section is involved (Tresway, majority opinion at pp. 437–439; dissenting opinion at p. 443, 96 Cal.Rptr. 571, 487 P.2d 1211 and fn. 3 thereof.) The extension involved in Tresway had been made over the telephone; its effect was to extend the time of a defendant to answer a complaint beyond the three year period provided for in section 581a. Since the summons which had been served in that case was held to be defective, the result of the extension was to require dismissal if section 581a was literally applied.

5.  The motion for dismissal eventually filed by McNeil's counsel was also made on behalf of a third defendant, apparently unserved by plaintiff.

6.  We recognize that this request, in and of itself did not continue the case beyond the five year period. Nevertheless, it secured the cooperation of the court in a process which ultimately led to the dismissal. Section 583, subdivision (b) provides that a written stipulation filed by the parties may extend the five year period. Govea v. Superior Court, supra, held that if the minute reference to a stipulation did not constitute literal compliance with section 583 it did estop the defendant from later making a motion to dismiss. The court further stated (26 Cal.App.2d at p. 31, 78 P.2d at p. 434): ‘. . . that a party to an action cannot be allowed in such manner to play fast and loose with the court . . .’ and that this proposition by itself was a bar to granting a motion to dismiss.Nothing in this opinion should be taken to indicate that any defense counsel acted deliberately or intentionally to deceive counsel for plaintiff. “Actual fraud in the technical sense, bad faith, or an intent to mislead, are not essential to create such an estoppel.” (Tresway, at fn. 18, 5 Cal.3d p. 441, 96 Cal.Rptr. p. 578, 487 P.2d p. 1218, quoting Industrial Indem. Co. v. Ind. Acc. Com., 115 Cal.App.2d 684, 690, 252 P.2d 649 and Denham v. County of Los Angeles, 259 Cal.App.2d 860, 867, 66 Cal.Rptr. 992).In particular, at oral argument counsel for plaintiff stated that McNeil's counsel had acted in exemplary fashion.

COLE,* Associate Justice. FN* John L. Cole, Judge of the Superior Court, Los Angeles County, assigned by the Chairman of the Judicial Council.

FILES, P. J., and KINGSLEY, J., concur.

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SHAW v. KAPLAN (1974)

Docket No: Civ. 41823.

Decided: January 21, 1974

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

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