263 Cal. App. 2d 68 | Cal. Ct. App. | 1968
This is an appeal by plaintiff from the order dismissing its action, because of the lapse of five years without a trial. We are affirming the order.
The action was commenced July 12, 1961. Defendants’ notice of motion to dismiss was filed just five years later, on July 12, 1966. A demurrer had been interposed by the defendants on September 5, 1961. It was sustained, with leave to amend, as to two of the four causes of action of the complaint, and a first amended complaint was filed October 25, 1961. To this, defendants Vector (as we shall refer to defendant Vector Manufacturing Company, Inc.) and Piske filed an answer, containing, as a second affirmative defense, a statement that the written agreement of September 15, 1957, upon which plaintiff relied in each of its four causes of action, contained a provision that
On July 19, 1963, defendants gave notice of their intention to move July 26, 1963, “for an order for a separate pretrial conference and jury trial of the special defense of lacking of standing to sue as pleaded in the defendants’ answer to the plaintiffs’ first amended complaint.” . . . The notice further advised that the motion “will be based upon the provisions of the California Code of Civil Procedure, section 597. . . -”
The original record, to which we have turned to obtain a more complete account of events, contains a written order filed, August 21, 1963,
Interspersed with other pretrial matters, this phase was continued from time to time, but came to a pretrial hearing on October 22, 1963, with a joint statement reciting: “Defendants motion for separate pre-trial and trial on the second affirmative defense only was granted by the court and is presently the only matter before the court at this pre-trial. ’ ’ Also we find: “Discovery. We certify that all depositions and discovery proceedings have been completed, except as follows for the following reasons: no exceptions. ’ ’ Then, a Pretrial Coneerence Order was filed November 13, 1963, beginning: “A pretrial conference was held on the 22 day of October 1963,” to which was attached, among other things, the joint statement above referred to. Among the statements appearing in the order are these: “All discovery has been completed and none will be permitted hereafter. The case is ready to be set
We interrupt our review of events in the order of their occurrence, and skipping over September 1, find a notice, filed September 14, of a motion to reset the case for a pretrial conference. It was set for pretrial on January 12, 1965. Then, on July 12, 1966, we find the notice of a motion to dismiss, under section 583, Code of Civil Procedure, referred to in our opening paragraph. The motion was heard, granted, order of dismissal filed, and plaintiff appealed. On its appeal, it insists: first, that the action was brought to trial on January 17, 1964 • and second, that there was a period in the five years between the commencement of the action and the motion to dismiss, when, for over six months, “it was impractical and futile to proceed to trial.” We look at the events of January 17, 1964, and of the period “when it was impractical and futile to proceed to trial,” with plaintiffs’ argument in mind.
As to the “trial” of January 17, to which, plaintiff argues, the action was brought, we have not only more than a page of the court’s minutes covering the events of the day, but a reporter’s transcript of that which was said and done. We are not going into details, but the hearing was in chambers, and the events and nature of the discussion were typical of a pretrial hearing, not a trial. This hearing resulted in the vacation of the order that “second affirmative defense in defendants’ answer to first amended complaint be heard and determined at a separate pretrial conference and separate jury trial.” The assignment or transfer of said cause to this department was also vacated and, “the matter is therefore ordered off calendar.” If that which took place on January 17 was a break in the five-year period that section 583 says can not be exceeded without a dismissal, then no case that is pretried within the five-year period is subject to a dismissal because not brought to trial within the prescribed limit. We are no more persuaded than the trial court was that the case was brought to trial on January 17.
Plaintiffs’ second contention is stated in its brief as follows: ‘ ‘ The trial court failed to toll the five-year limitation during the time it was impractical and futile to proceed to trial.”
We are not unaware of the authorities that may be cited to support the thesis that during a time when it is
There are many periods, during the ordinary five years, when it would be both impractical and futile to bring a case to trial, which, we are sure, should not be made use of to add to the five-year period. Take this case, commenced July 12, 1961. How futile it would have been to try to bring it to trial before the defendants had filed their answer to the first amended complaint, on November 29, 1961. Should this period of over four months have been added to the five years when defendants filed their motions to dismiss on July 12, 1966? How many more days should be added for the Sundays and other holidays appearing through the five-year period, days when it would be futile to bring the action to trial 1 Of course, the answer is “none.” Should the trial court have added six months to the code’s five years, because of the period pointed to by the appealing plaintiff ? That is our question.
This is the period to which our appealing plaintiff points: “In the instant action, on July 1, 1963, right in the middle of extensive discovery proceedings, the Trial Court suspended the appellant’s right to discovery on all issues, except the respondents’ second affirmative defense, . . , The Court’s
The order from which plaintiff appealed is affirmed.
Jefferson, Acting P. J., and Kingsley, J., concurred.
Ketired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
Pertinent to our situation are these words of section 597, Code of Civil Procedure: ' ‘ When the answer . . . sets up any . . . defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement of the prosecution thereof, the court may upon the motion of either party; proceed to the trial of such special defense or defenses before the trial of any other issues in the case. ...”
The order recites, obviously in error, that the motion came on for hearing June 26, 1963.