DAVID LANE, Plaintiff and Appellant, v. HARMON B. DAVIS et al., Defendants and Respondents.
Civ. No. 27488
Second Dist., Div. Two.
May 5, 1964.
227 Cal. App. 2d 60
ROTH, J.; Kincaid, J. pro tem.; HERNDON, Acting P. J.
Gepner & Fox and Philip N. Gepner for Defendants and Respondents.
ROTH, J.—On April 1, 1957, appellant sued in a single cause of action for a real estate broker‘s commission. Demur-
After remand to the trial court, amended complaints having been filed, a demurrer to the second cause of action of the fourth amended complaint was sustained without leave to amend, but a demurrer to the first cause of action of said fourth amended complaint was overruled. No judgment was entered upon and no appeal taken from the order sustaining without leave the demurrer to the second cause of action of the fourth amended complaint.
Respondents’ answer to the first cause of action was filed on July 25, 1960. After a pretrial conference held in August 1962, trial was set for October 29, 1962. On October 19, 1962, respondents moved to dismiss on the ground that appellant had failed to bring the action to trial within three years as required by
The pertinent portion of
“... 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 ... 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.”
The motion was granted and this appeal is from the judgment entered on the order granting the motion under
The decisive question presented is whether the judgment and remand of the appellate court (Lane v. Davis, supra) permitting amendment of the second cause of action of the second amended complaint, is the granting of a new trial within the meaning of
On all fours with the facts of this case are the cases of McDonnell v. American Trust Co., 178 Cal.App.2d 325 [2 Cal.Rptr. 826], and Robertson v. Superior Court, 180 Cal.App.2d 372 [4 Cal.Rptr. 297] (hearing denied by the Supreme Court). Each case holds that a situation such as described here is a new trial within the meaning of the pertinent portion of
“Not one of these decisions support appellants’ argument that the trial court must apply its discretion to temper the rigidity of the rule.”
Appellant further contends that Berri v. Superior Court, 43 Cal.2d 856 [279 P.2d 8] suggests a different interpretation.
In Berri, a demurrer was sustained without leave to amend. No judgment, however, was entered thereon. Shortly prior to the expiration of the five-year period provided for in the first portion of
In Berri, the court speaking directly on the facts of that case said at page 861:
“Inasmuch, however, as the trial court may change its ruling on the demurrer, as no judgment has been entered, the trial court is hereby directed to render judgment, or if it deems advisable, give consideration to a reexamination of its ruling. In case it does the latter, however, the action is not subject to dismissal because under the above reasoning there has been, in effect, a partial trial of the action and section 583 is inoperative. A partial trial of an action will take the case out of the operation of section 583. (City of Los Angeles v. Superior Court, 15 Cal.2d 16 [98 P.2d 207]; see O‘Day v. Superior Court, supra, 18 Cal.2d 540 [116 P.2d 621].) Let the writ issue directing the trial court to enter a judgment of dismissal or overrule the demurrer.”
The Berri case was prior to McDonnell and Robertson. It is cited in neither and a hearing was denied in Robertson.
In Berri the court decided that a demurrer sustained without leave to amend upon which no judgment was entered, was only a partial trial because on presentation of a judgment the trial court might, as it had the right to do, change its mind and overrule the demurrer. This situation is not the same as it was in McDonnell and Robertson.
On rationale it would appear that the Legislature did not intend to penalize a litigant for diligence in bringing a case to trial, yet if the statute is applied as interpreted by Mc-
On the facts here involved, however, more than five years had expired from the time the complaint was filed. Appellant thus had the advantage of the five-year limitation and the three-year limitation.
Appellant urges that when respondents at the pretrial conference held in August 1962 permitted without objection the trial of the case to be set for October 29, 1962, which date was 10 days after the expiration of the three-year period, respondents estopped themselves from making any objection or waived any objection.
There is no showing that respondents or either of them knew, when a pretrial date was set, that the trial date was beyond the expiration of the three-year period, nor has any case been cited to us and we know of none which makes it respondents’ duty, even if they knew, to call such fact to appellant‘s attention. There is present in this case not the slightest evidence squinting at fraud or connivance on respondents’ part to have a trial date fixed to a time when the three-year period would have expired.
It seems to be clear too that the portion of
The judgment is affirmed.
Kincaid, J. pro tem.,* concurred.
If these were new questions open for initial determination by us, I would refuse without hesitation to apply the abstract rules enunciated in the above cited decisions to the present action. Notwithstanding my belief that such a refusal by us is foreclosed by said decisions, I nevertheless shall set forth my reasons for regarding the interpretation therein given
To me it appears very clear that
The practical procedural considerations underlying this expression of legislative intent are clear. As stated in Continental Pac. Lines v. Superior Court, 142 Cal.App.2d 744, 750 [299 P.2d 417], in connection with a discussion of the recognized exceptions to the five-year limitation applicable to cases
In essence, then, it is clear that the language of
However, when all the necessary procedural steps have been completed and a trial on the merits has been had within the five-year period, but a new trial subsequently has been granted, the trial court must dismiss the action three years thereafter and may dismiss it, in the reasonable exercise of its inherent power, at any time after the order granting such new trial, or the filing of the remittitur if the new trial is granted following an appeal. (Cameron v. Cameron, 110 Cal.App.2d 258, 260-261 [242 P.2d 408]; Inderbitzen v. Lane Hospital, 17 Cal.App.2d 103, 106 [61 P.2d 514]; see also Holt v. Pardue, 178 Cal.App.2d 528, 533 [3 Cal.Rptr. 225]; Mastelotto v. Harbor Box & Lumber Co., 170 Cal.App.2d 429, 434 [338 P.2d 988]; Clements v. Ragghianti, 155 Cal.App.2d 188, 191 [317 P.2d 706], stating the inapplicability of
The soundness of the rulings in the cited decisions is apparent, for the plaintiffs therein had had full opportunity to complete all necessary proceedings prior to the first trial of their cases on their merits and ordinarily there would be no good reason that the second trials should not be rescheduled promptly.
In addition, it has been held that the sustaining of a
“When the demurrer has been sustained and judgment of dismissal has been entered there has been a trial and the action is not subject to dismissal under section 583.” (Italics added.) (Berri v. Superior Court, supra, at p. 859.) Further, in the Berri case where the trial court had not entered judgment following the sustaining of the demurrer without leave to amend, but subsequently had dismissed the action for failure to bring it to trial within five years, the court concluded (p. 861): “Inasmuch, however, as the trial court may change its ruling on the demurrer, as no judgment has been entered, the trial court is hereby directed to render judgment, or if it deems advisable, give consideration to a reexamination of its ruling. In case it does the latter, however, the action is not subject to dismissal because under the above reasoning there has been, in effect, a partial trial of the action and section 583 is inoperative. A partial trial of an action will take the case out of the operation of section 583. [Citations.]” (Italics added)
In Smith v. City of Los Angeles, supra, the court stated (p. 305): “Inasmuch as we hold that the sustaining of the demurrers herein without leave to amend, followed by judgments for the defendants, constituted a ‘trial’ within the meaning of
Similarly, in Southern Pacific Co. v. Seaboard Mills, supra, at pages 104-105, this court was not called upon to determine whether the three-year limitation upon the granting of new trials following reversal would have been applicable, because the matter had been dismissed prior to that date. We only pointed out therein that since the case had been brought to “trial” (a motion for summary judgment having been granted) thereafter the two and five-year limitations of
In my opinion, the rule that the erroneous sustaining of a demurrer without leave to amend constitutes a “trial” or partial trial sufficient to remove the action from the mandatory five-year limitation, does not necessarily require a holding that it becomes subject to a mandatory three-year limitation. In my view, a declaration that it does is both a non sequitur and diametrically opposed to the intent of the Legislature. The plaintiff, in the instant case, had been deprived of the period fixed by the Legislature as a reasonable one within which to bring his case on for trial initially upon its merits after full opportunity allowed to complete correction of pleadings, discovery and other pretrial procedural matters, by the application of a rule developed by the courts to avoid this very situation.
Indeed, even if the period preceding the filing of respondent‘s demurrer, which was erroneously sustained without leave to amend, were tacked on to the time elapsed following the filing of the remittitur (on the decision which corrected such error) until the trial date, the total still would not be equal to the five years to which he would have been entitled absent such error. However, if the question were open I would not feel it necessary to hold that tacking would be required, for I agree with the ruling in the Smith case above cited that in situations of the present type, none of the mandatory maximum limitations of
Since the dismissal in the instant case clearly was not
Furthermore, the record in the instant case clearly shows that both parties expressly stipulated to the trial date, and respondent necessarily would have waived any right he had to complain thereof. Although the stipulation referred to in
In the instant case, the pretrial conference order contained in the clerk‘s transcript filed in this appeal expressly states: “The parties stipulate the case may be set for trial in Department NE ‘A’ at 9:30 A.M. on the 29th day of October, 1962.” (Italics added.)
Were it not for the fact that I regard myself as bound by the earlier decisions heretofore cited, I would hold that respondent was not entitled to seek a dismissal in the face of the express stipulation contained in the trial setting order, and, for this second reason, I would reverse the judgment.