HENCHMAN v. ESTATE OF SAPIN (1984)

Plaintiff appeals from judgment dismissing her action for failure to bring it to trial within five years after it was filed.  (Code Civ.Proc., § 583, subd. (b).)

On November 21, 1977, plaintiff filed a complaint against Isadore Sapin seeking general and special damages in unspecified amounts for personal injuries allegedly sustained by plaintiff when, as a pedestrian in a parking lot, she was struck by a car driven by Sapin.   At the time of the accident Sapin had an automobile liability insurance policy with limits of $15,000.   The insurer retained counsel to defend the action and on February 8, 1978, Sapin's answer to the complaint was filed;  six days later plaintiff filed an at-issue memorandum.   On July 5, 1979, plaintiff filed her election to submit the cause to arbitration, agreeing that the arbitration award should not exceed $15,000 (Code Civ.Proc., § 1141.12, subd. (b)(ii);  Cal.Rules of Court, rule 1600(b)).   In December 1981 defendant Sapin died and shortly thereafter plaintiff's counsel was informed of his death.   Apparently there was no probate of Sapin's estate.   On January 27, 1982, an arbitration hearing was held and plaintiff was awarded $6,809.05.   On February 12, 1982, the attorneys of record for Sapin served and filed a request for a de novo trial (Code Civ.Proc., § 1141.20).   On March 25, 1982, pursuant to order of the court, plaintiff served notice that trial setting conference would take place May 3, 1982.   On that date trial setting conference was ordered off calendar, and the cause was placed off the civil active list, due to failure of plaintiff's counsel to appear.   On May 12, 1982, plaintiff filed “notice of petition and petition to sue the estate of deceased defendant”;  on June 9, 1982, hearing on the petition was placed off calendar at plaintiff's request.

On January 25, 1983, more than five years after the complaint was filed, plaintiff noticed a motion to reinstate the case on the civil active list and set it for trial.¹  On February 16, 1983, the motion was denied without prejudice on the ground that plaintiff had not substituted Sapin's estate as defendant.   On February 19, 1983, plaintiff served on the attorneys of record for Sapin notice of petition and verified petition for an order allowing the action to be maintained against the estate for the purpose of establishing liability of the decedent to the limits of his automobile insurance policy (Prob.Code, § 721).   On March 14, 1983, the petition, which was unopposed, was granted.   On March 22, 1983, Sapin's estate, as defendant, filed a motion to dismiss the action for failure to bring it to trial within either two years or five years after the date of filing.  (Code Civ.Proc., § 583, subds. (a), (b).)   On May 25, 1983, the motion was granted and judgment was entered dismissing the action for plaintiff's failure to bring it to trial within five years after it was filed.  (Id., subd. (b).)

Plaintiff contends that her action should not have been dismissed because the five-year period specified in Code of Civil Procedure section 583, subdivision (b) ² was tolled from the date of Sapin's death to the date the action was allowed to proceed against his estate (a period of 15 months), by subdivision (f) of section 583 which provides:  “The time during which the defendant was not amenable to the process of the court and the time during which the jurisdiction of the court to try the action is suspended shall not be included in computing the time period specified in any subdivision of this section.”

In support of this contention plaintiff cites Herring v. Peterson (1981) 116 Cal.App.3d 608, 172 Cal.Rptr. 240.   There, the defendant in a personal injury action died approximately three years after the action was filed.   Defendant had tendered the case to her insurer and an answer was filed on her behalf a month after her death.   Defendant's estate was never probated nor was a personal representative appointed;  plaintiff made no attempt to secure appointment of a personal representative for the deceased defendant or serve process on her insurer (Code Civ.Proc., § 385).   More than five years after the complaint was filed the action was dismissed on motion of defendant's counsel.   In reversing the judgment of dismissal, the court stated:  “Subdivision (f) of section 583 exempts from the five-year period the time when the defendant is not amenable to service of process and the court's jurisdiction to try the case is suspended.   We have already held that the court's jurisdiction to try the case was suspended upon defendant's death and it never regained jurisdiction because no personal representative was appointed and defendant's insurer was never served with process.   In addition, since defendant was deceased, she was not amenable to service of process.   [Citation.]  Nor was her personal representative substituted or her insurer served.   This case fits the exemption under section 583, subdivision (f), and the five-year limit was therefore tolled․  [¶] We hold defendant's death suspended the trial court's jurisdiction to try the case and tolled the running of the five-year limit of Code of Civil Procedure section 583, subdivision (b).   Since plaintiff never made a valid attempt to proceed thereafter and indeed is not required by law to do so, the five-year limit has not yet been exceeded.” ³  (Herring v. Peterson, supra, 116 Cal.App.3d at pp. 613, 616, 172 Cal.Rptr. 240.)

The foregoing analysis is unsound.   First, the fact that defendant was not amenable to service of process after her death does not support the conclusion that her death operated to toll the five-year limit of section 583, subdivision (b).   Since defendant tendered the action to her insurer, she obviously was served with process during her lifetime.   Under these circumstances the provision of section 583, subdivision (f) regarding lack of amenability to service of process simply is not pertinent in determining whether the five-year limit of subdivision (b) was tolled.   In short, Herring failed to recognize that where personal jurisdiction over defendant is acquired before his death, a judgment thereafter rendered for or against him is merely voidable, not void.   Witkin explains:  “Judgments for or against dead persons call for this distinction:  [¶] (1) If the plaintiff or defendant was dead before the action was begun, the judgment is void and subject to collateral attack, because he never was a party, i.e., the court never acquired jurisdiction of the person.  [Citations.]  [¶] (2) If the defendant was alive when the action was begun and personal jurisdiction over him was obtained, he was originally a party.   Death occurring thereafter, prior to judgment, makes it improper to render judgment for or against him without first taking the procedural step of substituting his executor or administrator.   The failure to take this step is a departure from the mandatory requirements of the statute, and does result in a judgment for or against a person not a party.   Hence it seems clearly in excess of jurisdiction and subject to prevention or annulment by some form of direct attack.  [Citations.]  [¶] This technical lapse, however, does not render the judgment void and subject to collateral attack.   The courts, frequently described it as a ‘mere irregularity,’ which renders the judgment ‘voidable only.’  [Citations.]”  (1 Witkin, Cal.Procedure (2d ed. 1970) Jurisdiction, § 207, pp. 739–740;  latter emphasis added.)

Second, in holding that defendant's death suspended the court's jurisdiction to try the case, Herring ignored the distinction between excess of jurisdiction and total lack of jurisdiction in the fundamental sense.   The phrase “time during which the jurisdiction of the court to try the action is suspended” in section 583, subdivision (f) refers to lack of jurisdiction in the strict sense, i.e., total absence of power or jurisdiction to hear the case.  (White v. Renck (1980) 108 Cal.App.3d 835, 840–841, 166 Cal.Rptr. 701.)   That the death of a defendant does not deprive the court of power to hear or determine the case is shown by Collison v. Thomas (1961) 55 Cal.2d 490, 11 Cal.Rptr. 555, 360 P.2d 51.   In Collison the defendant, administratrix of the estate of a decedent, died during trial;  the trial proceeded to its conclusion without knowledge of her death by anyone participating in the trial, and the court ordered judgment in favor of defendant;  thereafter a successor administrator was appointed and the judgment was entered.   The Supreme Court held:  “The court did not lose jurisdiction of the case in the strict sense upon Mrs. Kellogg's death.   This is established by the many cases in this state holding ‘that the death of a party pending suit does not oust the jurisdiction of the court, and hence that the judgment is voidable only, not void.   This does not mean that a judgment can be really rendered for or against a dead man, but that it can be rendered nominally for or against him, as representing his heirs or other successors, who are the real parties intended.’  [Citations.]”  (Collison v. Thomas, supra, 55 Cal.2d at pp. 495–496, 11 Cal.Rptr. 555, 360 P.2d 51;  emphasis added.   Cf. Smith v. Bear Valley etc. Co. (1945) 26 Cal.2d 590, 602, 160 P.2d 1.)

 We conclude that the death of defendant Sapin, which occurred after personal jurisdiction over him was obtained, did not divest the court of jurisdiction in the fundamental sense of power to try the case and thus, contrary to language in Herring, there was no need for the court to “regain” jurisdiction by appointment of a personal representative for decedent or service of process on decedent's insurer.   It follows that section 583, subdivision (f) did not operate to toll the running of the five-year limit of subdivision (b) during the period between Sapin's death and the substitution of his estate as defendant.

 Section 583, subdivision (b) requires dismissal of an action not brought to trial within five years after it was filed unless the plaintiff can bring his case within one of the statutory exceptions or one of the implied exceptions recognized by decisional law.  (Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 466;  King v. State of California (1970) 11 Cal.App.3d 307, 310, 89 Cal.Rptr. 715.)   Such implied exceptions arise where it would be impossible, impracticable or futile due to causes beyond a party's control to bring an action to trial during the five-year period.  (Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 546, 105 Cal.Rptr. 339, 503 P.2d 1347.)  “Whether it is impossible, impracticable or futile to proceed to trial must be determined in the light of the circumstances in each case” (Woley v. Turkus (1958) 51 Cal.2d 402, 407, 334 P.2d 12), bearing in mind that the duty rests upon a plaintiff at every stage of the proceedings to use due diligence to expedite his case to a final determination.  (Crown Coach Corp. v. Superior Court, supra, 8 Cal.3d at p. 548, 105 Cal.Rptr. 339, 503 P.2d 1347.)  “[R]easonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability or futility.”   (Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 105, 191 Cal.Rptr. 549.)   Assuming arguendo that Sapin's death presented a procedural obstacle making it impossible, impracticable or futile to bring the case to trial within the five-year period, it was within plaintiff's pwoer to remove that obstacle.   Plaintiff did not attempt to do so until May 1982 when, five months after Sapin's death and four and one-half years after the action was filed, she moved for leave to sue decedent's estate;  hearing on the matter was placed off calendar at plaintiff's request for reasons which do not appear in the record.   Not until February 1983, more than five years after the action was filed, did plaintiff again move to substitute the estate as defendant.   It is thus apparent that plaintiff failed to exercise the reasonable diligence necessary to raise an implied exception to the mandatory five-year dismissal provision of section 583, subdivision (b).

The judgment is affirmed.

FOOTNOTES

1.   In support of the motion plaintiff argued that the five-year period set forth in Code of Civil Procedure section 583, subdivision (b) was tolled during the pendency of the arbitration proceedings by Code of Civil Procedure section 1141.17 which, prior to amendment in 1983 (Stats.1983, ch. 123, § 3, eff. Jan. 1, 1984), provided in pertinent part:  “Submission to arbitration pursuant to a court order within six months of the expiration of the statutory period shall toll the running of such period until the filing of an arbitration award.”Inasmuch as this provision does not apply to consensual arbitration initiated by plaintiff's election to submit to arbitration (Taylor v. County of San Bernardino (1983) 143 Cal.App.3d 42, 45–47, 191 Cal.Rptr. 518;  Davenport v. Vido Artukovich & Son, Inc. (1983) 141 Cal.App.3d 60, 64–66, 190 Cal.Rptr. 64), the running of the five-year period was not tolled by the arbitration proceedings herein.   On this appeal from the judgment of dismissal plaintiff does not argue otherwise.

2.   “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.”  (Code Civ.Proc., § 583, subd. (b).)

3.   Respondent argues that this portion of Herring is dictum because the basis of the decision was the trial court's lack of jurisdiction to dismiss the action on motion of the deceased defendant's counsel.  (116 Cal.App.3d at pp. 611–613, 172 Cal.Rptr. 240.)   We do not agree.   The opinion is governed by the rule that where two independent reasons are given for a decision neither one is to be considered mere dictum, since it cannot be said that one reason rather than the other is the real basis of the decision.  (County of Los Angeles v. City of Los Angeles (1963) 212 Cal.App.2d 160, 166, 28 Cal.Rptr. 32;  McClain v. County of Alameda (1962) 209 Cal.App.2d 73, 76, 25 Cal.Rptr. 660.)

LILLIE, Associate Justice.

SPENCER, P.J., and L. THAXTON HANSON, J., concur.