BOURKE v. EAST BAY REGIONAL PARK DISTRICT (1985)

In applying Code of Civil Procedure section 583.320 ¹ (former § 583, subd. (c)), a hearing after a demurrer constitutes a trial when the ruling results in a judgment of dismissal.   Following an appeal and a remittitur reversing that judgment, dismissal of the action is mandatory when a new trial has not been brought within three years.   The five-year provision of section 583.310 (former § 583, subd. (b)) to bring an action to trial for the first time is not applicable.

Plaintiff Patricia Bourke appeals from a judgment of dismissal for failure to bring the case to trial within three years after issuance of the remittitur as provided in section 583.320.   We affirm.

The California Department of Transportation (Caltrans) sold excess property previously acquired for state highway purposes to the East Bay Regional Park District, to be leased by the City of Oakland for its Shepherd Canyon corridor plan.   Under this plan, Oakland constructed bicycle paths and hiking trails upon the land, which alleviated congestion from pedestrians and increased the traffic capacity of approximately parallel city streets.   On July 25, 1975, plaintiff instituted a taxpayer's suit to set aside the sale of the land, contending it was an unconstitutional gift of public funds and an impermissible diversion of motor vehicle fuel tax revenues.   Demurrers to the complaint were sustained with leave to amend;  plaintiff filed an amended complaint containing the same allegations.   On December 10, 1975, the trial court sustained a second demurrer without leave to amend and entered a judgment of dismissal.   Plaintiff appealed and this court issued an opinion on November 3, 1977, affirming the dismissal of the first and third causes of action, but reversing the dismissal of the second cause of action.  (Bourke v. East Bay Regional Park Dist. (Nov. 3, 1977) 1 Civ. No. 38887.)   The opinion became final on January 3, 1978, and the remittitur was issued on the same date.

On October 2, 1978, plaintiff filed a second amended complaint.   Trial was set for July 21, 1980.   On July 10, 1980, plaintiff moved for a continuance over defendants' opposition.   The trial court granted the motion and continued the trial to August 21, 1980.   Thereafter, upon plaintiff's request, the parties agreed to drop the matter from the civil active list.   On January 6, 1981, more than three years after the issuance of the remittitur on January 3, 1978, defendants moved to dismiss the complaint for lack of prosecution pursuant to the mandatory three-year period of section 583.320.   The motion was granted and judgment of dismissal was entered on January 21, 1981.   Plaintiff's motion for a new trial was denied and she filed a timely appeal.

In this appeal, plaintiff contends that by reading together sections 583.310, 583.320, subdivision (a)(3) and 583.340, subdivision (a) (former § 583, subd. (f)), one must conclude that the five-year umbrella period of section 583.310 controls over the three-year period of section 583.320, subdivision (a)(3), and that plaintiff had five years from the time the complaint was filed, excluding the two years the case was on appeal, in which to bring the case to trial.   In effect, plaintiff argues that the five-year statute of limitations was tolled for the two years the case was on appeal and that she is entitled to an additional two years to prosecute her complaint.²  In opposition, defendants allege that a “trial” occurred within the meaning of section 583.310 when the judgment of dismissal was entered after the demurrer was sustained without leave to amend, and therefore the five-year period is inapplicable.³

In support of their respective contentions, both sides rely on our Supreme Court's decision in McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 105 Cal.Rptr. 330, 503 P.2d 1338.   There, plaintiff Mary Grasso sued defendant McDonough Power Equipment Company for personal injuries.   The trial court sustained a demurrer without leave to amend and entered a judgment of dismissal.   Plaintiff appealed and the Court of Appeal reversed the judgment with directions to overrule the demurrer.   The cause came up for trial more than three years following the issuance of the remittitur and defendant moved to dismiss the action under the statutory forerunner of the three-year provision of section 583.320, subdivision (a)(3).   The trial court denied the motion and defendant petitioned for a writ of mandate to compel dismissal.   The Supreme Court granted the writ.   In its decision, the McDonough court held that the dismissal of the action is mandatory unless the action is brought to trial within three years following the issuance of the remittitur.  (Id., at pp. 530–531, 105 Cal.Rptr. 330, 503 P.2d 1338.)   The court expressly rejected the same contention that plaintiff herein raises, i.e., that upon reversal of the judgment of dismissal, the action is reinstated under the umbrella of the five-year provision of the statute.  (Id., at p. 533, 105 Cal.Rptr. 330, 503 P.2d 1338.)   In reaching this conclusion, the court reasoned that the five-year provision applies only when there has been no trial.   The court held, consistent with cited authorities, that when a demurrer has been sustained and a judgment of dismissal has been entered, there has been a trial and the five-year period is inapplicable.  (Id., at pp. 532–533, 105 Cal.Rptr. 330, 503 P.2d 1338.)

Despite this unequivocal language, plaintiff herein claims that such an approach would work to the detriment of the diligent litigant who brings the case to trial, appeals an adverse judgment and obtains a reversal with the remittitur issuing all within two years from filing the complaint.   Plaintiff argues that under this scenario, section 583.320, subdivision (a)(3) requires a litigant to bring the case to trial within three years following the issuance of the remittitur, even though such period is less than five years from the filing of the complaint.   She relies upon the reference in McDonough Power Equipment Co. v. Superior Court, supra, to the 1972 amendment to former section 583 which noted the addition of the following language to subdivision (c) (now § 583.320, subd. (b)):  “ ‘Nothing in this subdivision shall require the dismissal of an action prior to the expiration of the five-year period prescribed by subdivision (b).’ ”  (8 Cal.3d at pp. 533–534, fn. 5, 105 Cal.Rptr. 330, 503 P.2d 1338.)   Relying on this language, she contends that the court impliedly recognized that the 1972 amendment brought the three-year provision under the umbrella of the five-year provision, excluding the time the case is on appeal.   This is an incorrect reading of the opinion.   The McDonough court recognized that in some cases where a judgment is speedily obtained, the result which plaintiff complains of may occur.   The court noted that the Legislature provided a remedy for this in its 1972 amendment to former section 583, subdivision (c), the effect being to give plaintiff either five full years from the filing of the complaint in which to bring the case to trial, or three years after issuance of the remittitur, whichever period is greater.   However, the court went on to distinguish those rare instances, described immediately above, which penalize the diligent litigant against the specified procedural events at bar where there has been a “trial.”   Here, as in McDonough, the five-year period is inapplicable.   (Id., at pp. 532–533, 105 Cal.Rptr. 330, 503 P.2d 1338.)

Plaintiff relies on Bergin v. Portman (1983) 141 Cal.App.3d 23, 26, 190 Cal.Rptr. 81, for a contrary position.   In Bergin, a complaint for specific performance was filed on July 21, 1976.   Summary judgment was entered for plaintiffs, but was reversed on appeal.   The remittitur was issued on May 12, 1978.   On May 21, 1981, more than three years later, the parties stipulated to schedule the trial on a date which was more than five years after the filing of the complaint.   On August 3, 1981, defendant moved to vacate the trial date and to dismiss the action on the alternate grounds that the plaintiff failed to bring the case to trial within five years after filing the complaint or three years after the remittitur was issued.  (Former § 583, subds. (b), (c).)   Judgment was entered dismissing the action under the three-year provision.  (Id., at p. 25, 190 Cal.Rptr. 81.)   Relying on former section 583, subdivision (f) (now § 583.340, subds. (a), (b)), the Bergin court concluded that the time the case was on appeal must be excluded from the five-year period specified in former section 583, subdivisions (b) and (c), with the result that plaintiffs had an additional one year and sixteen days in which to bring their case to trial.  (Id., at p. 26, 190 Cal.Rptr. 81.)

 The situation in Bergin is similar to that of the plaintiff in McDonough and in the case at bar, except that in Bergin, the plaintiffs appealed from a summary judgment, whereas here and in McDonough, the appeal is from a demurrer without leave to amend.   A summary judgment is as much a determination of the law as a demurrer and is the equivalent of a trial for the purposes of the dismissal statutes.  (See McDonough Power Equipment Co. v. Superior Court, supra, 8 Cal.3d at pp. 531–532, 105 Cal.Rptr. 330, 503 P.2d 1338.)   The Bergin court did not distinguish McDonough, and we are unable to discern any legal distinction.   We are bound by the Supreme Court's opinion in McDonough (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), and hold that upon the issuance of a remittitur following a demurrer, summary judgment, mistrial, or other proceeding on the merits, a plaintiff has three years in which to bring the case to trial.

Plaintiff refers to 4 Witkin, California Procedure (2d ed. 1983 supp.)   Proceedings Without Trial, section 114, page 54, wherein the author states that the 1972 amendment to section 583, subdivision (c) nullifies the effect of McDonough.   The author also directs us to a discussion in 4 Pacific Law Journal 316.   There, the editors comment that, as amended, former section 583, subdivision (c) “eliminates this inequity by providing that the three year limitation in such cases does not supersede the overall five year limitation.”

 We find nothing unfair about requiring plaintiffs whose cases have been “tried” once, either by summary judgment, demurrer or full trial, to conduct a retrial within three years after the remittitur is filed.   These litigants have already had one opportunity to have issues of fact or law decided and brought to a final disposition.  (See McDonough Power Equipment Co. v. Superior Court, supra, 8 Cal.3d at p. 532, 105 Cal.Rptr. 330, 503 P.2d 1338.)   They stand in a qualitatively different position from plaintiff, whose cases have had no adjudication on the merits and thus no “trial.”   When there has been no determination of issues of fact or law (cf. Tiholiz v. Superior Court (1980) 104 Cal.App.3d 201, 163 Cal.Rptr. 452;  Briley v. Sukoff (1979) 98 Cal.App.3d 405, 159 Cal.Rptr. 452), then the plaintiffs have five years to bring the case to trial, excluding the time spent on appeal.

In light of our conclusion, it is not necessary to address defendants' cross-appeal from the order granting plaintiff's motion for partial summary judgment.

The judgment of dismissal is affirmed.

FOOTNOTES

1.   The dismissal statutes were repealed and reenacted as Code of Civil Procedure section 583.310 et seq. in 1984 without any substantive changes.  (Stats. 1984, ch. 1705, § 4, p. 925;  Stats. 1984, ch. 1705, § 5, pp. 925–928.)All section references are to the Code of Civil Procedure unless otherwise indicated.

2.   The notice of appeal was filed on January 13, 1976.   The opinion was filed on November 3, 1977, and the remittitur was issued on January 3, 1978.

3.   Former section 583, subdivision (b) provided in pertinent 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․”  (See ante, fn. 1.)Former section 583, subdivision (c) provided in pertinent part:  “When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial ․, the action must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court․”  (Emphasis added;  see ante, fn. 1.)

LOW, Presiding Justice.

KING and HANING, JJ., concur.