*1 May 5, 1964.] Dist., Two. Div. Second No. 27488. [Civ. HARMON B. Appellant, v. and Plaintiff LANE, DAVID Respondents. al., et Defendants DAVIS Appellant. for Plaintiff Robert J. Johnston Gepner Philip N. for Defendants and Gepner & Fox and Respondents. single 1957, appellant On April1, sued
ROTH, J. broker’s commission. Demur- for a real estate cause of complaint and a second which was to the first rers being action, sustained, the latter causes of in two to amend. An was taken without leave sustained appellant, and order sustain- ing demurrer was affirmed as to the first cause of action action, with instruc- reversed as second cause *2 grant plaintiff trial court to to amend. tions to the leave (Lane Davis, 267].) v. The September 23,1959. remittitur was filed on complaints court, remand to the trial amended
After having filed, a demurrer to the second cause of action of complaint the fourth amended amend, was sustained without leave to but a demurrer to the first cause of action said judgment fourth amended was overruled. No sustaining upon appeal from order and no taken cause of action of leave the demurrer to the second complaint. the fourth amended
Respondents’ answer to the first cause of action was filed July August 25, on 1960. After a held in conference 1962, 1962, trial 1962. 19, was set October On October respondents ground appellant moved to dismiss years had failed to the action to trial within three as required by 583 of the Code of Civil Procedure. pertinent portion of section 583 reads as follows: judgment, appeal “... When an action after
been taken reversed with cause remanded for a new trial ... the action must be dismissed court, trial motion, on motion of defendant ... or of its own unless brought years from to trial within three the date ” remittitur is filed the clerk of the trial court. granted
The motion was and this is from the motion ment entered on the order under section 583. question presented whether The decisive (Lane Davis, supra) and remand of the court v. permitting amendment of the second cause of action of the granting of complaint, second amended a new trial meaning of within the section 583. all of this On fours with the facts ease the eases American McDonnell Trust v. Superior Court, Cal.Rptr. 826], and Robertson Cal. Cal.Rptr. App.2d (hearing denied 297] Supreme Court). as Each case holds that a situation such meaning here is a new trial within the described pertinent portion that, of section 583 and the action is remittitur, from date of to trial within three prior In the court reviews the court must dismiss. McDonnell says page 328: decisions argument support appellants’ of these decisions “Not one temper the apply discretion to trial court must ’’
rigidity of the rule. Appellant further contends that Berri v. suggests interpreta- a different 8] tion. Berri,
In a demurrer was sustained without leave however, Shortly amend. No was entered thereon. five-year period provided for in prior to the sought portion 583, plaintiff the first to enter Pending judgment on the order without leave. signing judgment by however, court, five- of such (in action) year period and defendant made a petitioned in to dismiss under section 583. Plaintiff motion sign compel the trial court to she mandate to presented. had directly Berri, speaking on the facts of that page 861: case said may change “Inasmuch, however, as the *3 judgment demurrer, entered, no on the as if it hereby to render trial court is directed give advisable, consideration to a reexamination deems ruling. latter, however, it does the is not In case reasoning under the above there to dismissal because partial trial of the action and section been, effect, a partial A trial of an action will take the inoperative. 583 is Angeles operation (City of section 583. out of the case O’Day v. 207]; see v. Superior 621].) Let Court, supra, 18 Cal.2d directing court to enter a the trial issue the writ ” the demurrer. or overrule and Robertson. It is prior McDonnell to ease was The Berri hearing denied in Robertson. was neither a cited in with- that a demurrer sustained the court decided In Berri entered, was upon which no amend presentation of a trial because only a right change do, to it had the might, as trial court ment This situation is the demurrer. mind and overrule and Robertson. in McDonnell it was same as Legislature did not appear that the it would rationale On bringing diligence litigant a case a penalize intend Me- applied interpreted by as if the statute trial, yet penalty for a Robertson, could he the result Donnell question of law litigant appeal on a could diligence. Thus, a sustained without on a demurrer such as months court within six to the trial and be remanded leave interpreted Applying 583 as complaint. plain- Robertson, the time allowed reduces McDonnell and years to three and trial from five tiff an action to one-half. however, than five involved, more On the facts here Appellant time the was filed. had from the advantage five-year limitation and the had the thus three-year limitation.
Appellant urges respondents pre that when at the August permitted trial conference held objection 29, 1962, of the case to be for October set days expiration three-year which date after the period, respondents estopped making any themselves from objection objection. any or waived showing respondents There is or either of them knew, set, date was that the trial when date was beyond three-year period, nor has been cited to us and case we know none which makes respondents’ duty, they knew, call such fact to appellant's attention. There is in this case not the slightest squinting at evidence fraud or connivance on respondents’ part to have a trial date fixed to a time when three-year period expired. would have portion
It seems to be clear too that the of section 583 stipula here involved cannot be extended even with written tion; Skernswell, thus Neustadt v. page says: “It should be noted 694] portion however of section 583 here does incorporate exception portions found in other excusing delay stipulation the section when a written extending holding time has been made. Cases that the ‘writ might stipulation exceptional ten’ be excused under certain application circumstances have no to the last sentence of the section stipulation here and which admits of no *4 written oral.”
The is affirmed. pro
Kincaid, tern.,* J. concurred. judge superior sitting pro tempore *Retired court under assignment by the Chairman of the Judicial Council.
6é judgment. Acting HERNDON, P. I concur J. feeling impelled my that this However, I feel to declare con by solely in Robertson v. compelled decisions currence is Cal.Rptr. 297], Cal.App.2d 372 hear. 180 Co., American Trust den., and McDonnell holding Cal.Rptr. 826], that section 583 of Code of 325 [2 three-year mandatory particularly Procedure, and Civil involving period, to cases the correction on by demurrers, and erroneous Legg Ins. 136 Cal. decisions v. United Benefit Life App.2d 553], den., and Neustadt v. hear. holding Skernswell, 694], that, three-year period is to no applicable, when such arising estoppel that of an from exceptions, stipulation parties date. later trial open questions If for initial determination these were new apply the by us, hesitation to abstract I would refuse without cited in the above decisions rules enunciated Notwithstanding my by refusal belief that us action. by decisions, set foreclosed I nevertheless shall forth said given regarding interpretation therein my reasons for intent of the 583 as in accord with the basic section preferable Legislature in order that whatever rule is deemed may by appropriate be established amendment. appears very that
To me it clear section was intended limiting applicable to to establish certain standards cases diligent prosecution, there has a lack of and that which penal- operate it was not intended to as vehicle which to judicial diligent litigant delay ize a for attributable to error responsible. way Initially, he was may limits within which the trial court establishes certain power to exercise its inherent dismiss cases have not diligence. Thus, pro- it trial with reasonable court an action vides not dismiss to trial until failure to two have years. that it must dismiss after of five Section sets a limitation for the retrial of 583 also maximum eases granted which, following trial, a new trial has been either the trial court or reversal upon appeal. practical underlying procedural considerations this
expression legislative intent clear. As stated Conti Cal.App.2d nental Pac. Lines v. 417], recog in connection with a discussion of the exceptions nized cases
65 practical proceeding to which, purposes, in all trial “It have futile: the described would within [the years five from the was amended to measure the statute] beginning action, and it the five was intended years to afford fair allowed should be considered sufficient though part opportunity trial, a a cause to necessarily five-year period be consumed in service must plead- demurrers, process, disposition amendment of in ings, necessary, usual and time consumed reasonable place securing waiting for a on the court’s calendar or necessary jury pro- attendance of a and usual and suchlike quoted ceedings; language approval This with ...” Penney v. 52 666, J. C. Co. Cal.2d 670 [343 reasoning 919], applied, part, P.2d least developments in pretrial proceedings. recent the field of then, essence, language it is clear of section 583 recognition Legislature expresses that, view of procedural appropriate steps leading essential and trial, to a it years, be would inadvisable to dismiss less than two end years,
but that it should be dismissed at the on five judicially exceptions, unless extended certain created by stipulation parties. However, necessary procedural steps when all the have completed trial on the merits been had within five-year period, subsequently but new trial has been granted, the trial court must dismiss the action three it, thereafter and dismiss in the reasonable exercise of power, granting its inherent time after the order trial, new or the of the remittitur if the new granted following an appeal. (Cameron Cameron, 110 v. Cal. App.2d 258, 260-261 P.2d 408]; Inderbitzen v. Lane [242 Hospital, Cal.App.2d 103, 17 514]; 106 P.2d see also [61 Pardue, Cal.App.2d Holt 528, v. 178 Cal.Rptr. 533 225]; [3 Mastelotto v. Harbor Box & Lumber 429, 988]; P.2d Ragghianti, Clements v. 188, stating 706], inapplicability involving 583 cases mistrials.) trials or rulings soundness in the cited decisions is apparent, plaintiffs therein had had full opportunity complete necessary proceedings all prior to the first trial of their cases on their ordinarily merits there would be good reason that the second trials should not be resched- promptly. uled
In addition, it been held that (Berri without leave to amend demurrer City 8]; Smith v.
Angeles, 943]), and the 305 [190 (Southern summary of a motion Mills, Cal.App.2d 97, 104-105 Co. v. Seaboard Pacific to remove “trials” sufficient Cal.Rptr. 236]) constitute Nothing in of section 583. action from the *6 authority for provides any decisions, however, these following “tri- appeal reversal on proposition that the so as granting of a “new trial” to als” constitutes applicable. portions of mandatory section other make the judgment of sustained “When the demurrer trial and has been a there dismissal been entered (Italics subject under section 583.” to action Court, supra, p. 859.) Further, added.) (Berri v. judg- trial court had not ease where the the Berri sustaining without leave following the of the demurrer ment the action for subsequently had dismissed amend, to but con- years, five it to trial within failure to “Inasmuch, however, 861) as the trial (p. : cluded demurrer, as no has been change judg- hereby to render trial court is directed entered, the give to a reex- advisable, consideration ment, if it deems ruling. latter, however, In of case it does amination subject to dismissal because under above is not been, effect, partial trial of the reasoning there has inoperative. A an action and section 583 is of operation take the case 583. action will (Italics added) [Citations.]” Angeles, supra, City the court stated In Smith v. sustaining 305): hold of the (p. “Inasmuch as we amend, judg- to without leave followed demurrers herein defendants, a ‘trial’ within the constituted ments Procedure, meaning Code of we of the Civil unnecessary con- to be to examine and decide the conceive upon the of the appellants that reversal tentions of subject dismissal under herein, were ments the actions Procedure provisions of section of the Code Civil they brought trial within a of three because years lodged of the court was the remittitur computing and, the clerk of the trial court that in with brought an action must be period of five within which provisions of the under the section 583 Code to trial Procedure, final has been entered where a Civil upon sustaining an order a demurrer appeal amend, followed and reversal elapsing the time between the demurrer the final determination of must (Italics be added.) excluded.” Similarly, in Mills, supra, Southern Co. v. Seaboard Pacific pages 104-105, upon this court was not called to determine three-year whether the of new trials reversal would applicable, have been because prior the matter had pointed only been dismissed to that date. We out therein that since the case had been (a “trial” summary having motion for granted) thereafter the two and limitations of sec- inapplicable tion 583 were and the trial court had not granted the motion to dismiss under its inherent discretion- ary powers. my opinion, rule that the erroneous
demurrer without leave to amend constitutes a “trial” or partial trial sufficient to remove the action from the manda- tory five-year limitation, necessarily require does not a hold- ing that it mandatory becomes three-year limita- my tion. In view, a declaration that it does both a non sequitur diametrically opposed Legis- to the intent of the *7 plaintiff, lature. The in ease, deprived the instant had been of period by Legislature the fixed the as a reasonable one within which to his initially upon case on for trial its merits opportunity full complete allowed to correction of discovery pleadings, pretrial procedural and other matters, application developed rule the courts to avoid very this situation. Indeed, even if preceding filing respond- ent's demurrer, erroneously which was sustained without amend, were elapsed tacked on to the time (on of the remittitur the decision which corrected error) such until the trial date, the total still would not bo. equal to the five to which he would have been entitled absent would not required, However, question error. open I necessary feel it tacking to hold that would be agree for I with the in the Smith case above cited in situations of type, none of man- datory maximum limitations of section 583 that the only to dismissal under the power inherent of the court. Since the clearly the instant case was not power court, and any inherent made the exercise showing plaintiff lacking there was
since bringing diligence case on for trial that would have powers, I reverse the an exercise of such would warranted judgment if I were free so to do. Furthermore, clearly the record in the instant case shows stipulated parties expressly date, that both respondent necessarily to the right would have waived he had Although stipulation complain to in thereof. referred Groom, Wright writing, section 583 must he the case Cal.Rptr. 80], Trucking Co., 206 490-492 [24 stipulation points an oral entered in the expressly out that requirement, this but one that is minutes satisfies Wright point does The court in went on to not. (p. foregoing language 492): “The pretrial order case before us. The conference any stipulation plaintiffs rely, here makes no mention of parties. Indeed, entered into between the parties no consent of the required setting of the case for trial after pretrial conference. Plaintiffs seek to have us [Citations.] pretrial look behind the court’s conference order and change it, by construing stipulation. effect aas written stipulation This we cannot do. It is not a written and makes stipulation.” (Italics no mention a written added.) (Cf., Penney also, Court, supra, J. C. Co. v. 666, 671.) ease, In the instant conference order contained filed, transcript
in the clerk’s expressly this states: parties stipulate “The the case be set trial in Depart- ment NB “A” at day 9:30 A.M. on the 29th October, (Italics added.) 1962.” regard myself Were it not the fact that I as hound cited, earlier decisions heretofore I would hold that respondent was not entitled to seek a dismissal in the face of stipulation express .the contained in setting order, and, reason, judgment. for this second I would reverse the