104 Cal. App. 3d 201 | Cal. Ct. App. | 1980
Opinion
Petitioner is the defendant and real parties in interest (RPIs) are the plaintiffs in action No. NWC 50691 now pending in respondent superior court (pending action). Petitioner requests this court to mandate respondent court to dismiss the pending action because the record shows without dispute that RPIs did not as required by the settled construction of Code of Civil Procedure sections 583, subdivision (b) or 583, subdivision (c)
In pertinent part section 583, subdivision (b) mandates a trial court to dismiss an action .unless such action is brought to trial within
Respondent court based its denial of petitioner’s motion to dismiss on a new interpretation of section 583, subdivision (c) as announced in the current case of Briley v. Sukoff (1979) 98 Cal.App.3d 405, 408-410 [159 Cal.Rptr. 452].
In Briley, defendants succeeded in setting aside a default judgment obtained against them by Briley.
“We think it makes no difference whether the moving party has labeled the motion as one to reopen or for new trial (as in Simon v. Tomasini, supra) or for vacation of the judgment pursuant to Code of Civil Procedure section 473. Applicable here is Code of Civil Procedure section 583, subdivision (c), which recites that ‘[w]hen, in any action after judgment, a motion for a new trial has been made and a new trial granted, such action shall be dismissed. . .unless such action is brought to trial within three years after the entry of the order granting a new trial
The record at bench shows the last of three several actions in the municipal court by RPIs was filed on March 5, 1974. The three actions were thereafter consolidated for trial and transferred to respondent court on or about December 16, 1974, and numbered as NWC 50691. Subsequently a motion for summary judgment was made in respondent court without notice as required by law or any notice actual or constructive to petitioner of the date on which said motion was to be heard. It was heard in petitioner’s absence on June 19, 1978, and summary judgment was entered on June 23, 1978.
Thereafter pursuant to motion of petitioner to vacate said summary judgment, a new hearing was held on August 4, 1978, of which notice was given to RPIs and at which they were present. Respondent court vacated the summary judgment and entered a new judgment by its minute order, “Motion Granted. Summary Judgment Denied.”
On December 13, 1979, respondent court over petitioner’s objection granted RPIs’ notice to return the case to the civil active list and specially set the action for trial on March 31, 1980, reserving in its order petitioner’s right to move for a dismissal under section 583, subdivision (c). On January 9, 1980, petitioner’s motion to dismiss was denied and this mandate proceeding followed. We think the motion should have been granted.
Although we agree that the result in Briley is a desirable consummation of that case we disagree with respect that the principle announced, i.e., nullifying or setting aside a judgment entered by default or as in the case at bench a summary judgment, equates with an order granting a new trial as that phrase is used in section 583, subdivision (c). A default judgment by its very designation expressly states it is the result of a nonadversary proceeding.
We think too that a nullification of a summary judgment taken by default is in the same class as any other default judgment. It is clear from the record that the trial judge thought so too. The minute order recited above eloquently shows that the trial court regarded the June 19 hearing as a hearing prematurely noticed and merged RPIs’ premature motion with petitioner’s motion—proceeded to grant petitioner’s motion —and in a separate order stated, “Summary Judgment Denied.”
On the record at bench the facts justify a conclusion—certainly adopted by the trial court—there was no valid hearing resulting in a default judgment; therefore, section 583, subdivision (c) does not apply. In these circumstances assuming our interpretation of the trial court’s minute order is correct section 583, subdivision (b) applies and the five-year period of that section was in no way tolled.
In any event, assuming that RPIs’ were entitled to an extension for the approximate forty-day period their default judgment was in effect, RPIs’ motion to restore the case to the civil calendar and set it for trial was made more than four months after the five-year period thus extended had expired.
Let a peremptory writ of mandate issue requiring respondent court to vacate the order of January 7, 1980, denying the motion of the peti
Compton, J., and Beach, J., concurred.
The petition of real parties in interest for a hearing by the Supreme Court was denied June 19, 1980. Bird, C. J., was of the opinion that the petition should be granted.
All references herein unless otherwise noted are to the Code of Civil Procedure.
Commenting on this motion, it is clear that the Briley court was of the opinion the default judgment should not have been set aside. The court said at page 411, footnote 2: “It is fortunate for defendant Michael Sukoff that this court is not deciding whether his claim of lack of trial notice was a sufficient excuse. He was acting in pro. per., he provided no address for service in the court file, he had moved from his home address to an unknown location, his office wouldn’t give out his home address to plaintiff (also then in pro. per.), so plaintiff served him at his admitted business office address. Also, his own attorney in his domestic action actually saw the trial notice. Of course, he has no recollection of receiving notice and argued that notice given at his business address was improper notice. Virginia SukofFs excuse for not showing up for trial is equally uninspiring.”
