Southern Pacific Co. v. Seaboard Mills

These are appeals by plaintiff in four separate actions from orders and judgments of dismissal made on motion pursuant to section 583, Code of Civil Procedure, and from an order denying a motion to vacate the judgments. The record in each is limited to the clerk’s transcript. Each of the actions is based on a claim by appellant for money allegedly refunded in error to respondents. The controversies appear to have arisen as a result of the application to certain goods shipped by respondents over the rail lines of plaintiff of tariff classifications different from those which had been contemplated. The issues of fact and law are substantially identical in each action. A detailed statement of the alleged facts is contained in Southern Pac. Co. v. Fish, 166 Cal.App.2d 353 [ 333 P.2d 133 ], which reversed a summary judgment previously granted in each of the actions.

The clerk’s transcripts reflect that the suits were commenced by the filing of the complaints and issuance of summonses on the following dates: No. 25926, August 20, 1951; No. 25927, October 19, 1951; No. 25928, November 15, 1951; No. 25929, May 27, 1952. For various reasons not material to our decision, no action was taken in these proceedings by mutual consent of the parties for extended periods of time and answers were not filed until June 27, 1957.

Thereafter, proceedings were had upon a motion by respondents for summary judgment and such judgment was entered in their favor on September 19, 1957. This judgment was reversed on appeal and the cause remanded for further proceedings. (Southern Pac. Co. v. Fish, supra.) Remittitur was filed in the trial court on February 18, 1959.

On December 24, 1959, appellant filed a request for admission of facts and a response by respondents was filed January 15, 1960, with certain objections which were overruled on February 4, 1960. On February 26, 1960, appellant filed its Memorandum to Set Cause for Trial in ease No. 25928. In June 1960 a further request for admission of facts and the response thereto was filed. On August 17, 1960, pretrial conference was noticed for December 16, 1960. On December 27, 1960, the parties stipulated that the actions might be consolidated for trial and pretrial conference was reset for January 31, 1961. It was held on February 7, 1961, at which time the consolidated cases were set for trial on April 10,

In reaching this decision, the court relied on the definition of “trial” appearing in the case of Tregambo v. Comanche M. & M. Co., 57 Cal. 501 , 505, as follows:

“A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties, it may be considered a trial. (Emphasis added.)” (Smith v. City of Los Angeles, supra, pp. 301-302.)

In Adams v. Superior Court, 52 Cal.2d 867 [ 345 P.2d 466 ], an action which rejected the contention that the taking of testimony to show grounds for a continuance was a “trial” within the meaning of Code of Civil Procedure, section 583, the following definition appears (p. 870) : “A ‘trial’ is the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties. [Citations.] ” (Emphasis added.)

By the reference to “pleadings,” the latter definition appears somewhat more restrictive than that in the Tregambo case; however, it cites that case as authority. In any event, it is our view that the motion for summary judgment is a pleading and reference is necessarily made to other pleadings in the cause in the determination of the motion.

The court which reversed the summary judgments in the present actions, Southern Pac. Co. v. Fish, supra, 166 Cal.App.2d 353 , stated at page 358, that a summary judgment is a proceeding pursuant to section 437c of the Code of Civil Procedure “. . . which insofar as then pertinent read as follows: ‘In superior courts . . . when an answer is filed in any kind of action if it is claimed that the action has no merit, on motion . . . supported by affidavit . . . the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.’

“ ‘By an unbroken line of decision in this state since the

It is to be noted that the hearing on demurrer is likewise not a trial on the merits. Nor is the sustaining of a demurrer without denying leave to amend a trial, inasmuch as no final determination is made in such ease. This court so held in Ross v. George Pepperdine Foundation, 174 Cal.App.2d 135 , 139 [ 344 P.2d 368 ], stating as follows: “ ‘The rule is established that “the hearing of a demurrer is not a trial, within the meaning of section 583, unless the ruling on the demurrer is a final determination of the rights of the parties.” [Citations.] ’ ” In that ease we also held that a summary judgment in favor of one defendant, the other defendants not being involved, did not deprive the latter of the mandatory provision of Code of Civil Procedure, section 583. Our statement that “a summary judgment proceeding is not a trial upon the merits” was made only in reference to that situation.

The mere hearing of a motion for summary judgment is not a partial trial because it is concerned only with issue finding. However, in the event a court finds that there are no issues of fact to be determined, it must then make a determination as to whether the uncontroverted facts justify granting of the motion in favor of the moving party. (Desny v. Wilder, 46 Cal.2d 715 , 725 [ 299 P.2d 257 ]; Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553 , 555 [ 122 P.2d 264 ]; Southern Pac. Co. v. Fish, supra, 166 Cal.App.2d 353 , 358.) In Cone v. Union Oil Co., 129 Cal.App.2d 558 [ 277 P.2d 464 ], at page 563, the court stated the rule as follows: “Absent a genuine issue of fact as disclosed by the affidavits, a party is not entitled to proceed to trial and the court, applying the law to the uncontroverted material facts, may render a summary judgment. The sole question then is, is the defendant entitled to a summary judgment on the basis of the undisputed facts in the affidavit it filed in support of its motion?” (Emphasis added.) This determination necessarily draws into question the entire body of our substantive law, and a court may be called upon to determine important questions of law on a motion for summary judgment.

The motion for summary judgment calls for evidentiary affidavits to show whether there is any substantial proof to support the allegations of the pleading. It must be determined

This motion is distinguishable from a demurrer in that the latter is confined to the pleadings. While the demurrer questions the pleadings, the motion for summary judgment questions the proof. On the hearing of either matter, the court must assume the truth of matters stated, but the affidavits are sworn statements. Furthermore, each affidavit must affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. (Code Civ. Proc., § 437c.)

In view of the foregoing analysis, it seems unquestionable that a “trial” in a more fundamental sense has been accomplished on the granting of a motion for summary judgment than on the sustaining of a demurrer without leave to amend. We therefore hold that the actions here were brought to trial. Obviously, a defendant waives objection to antecedent delay by going to trial without moving to dismiss. (Holt v. Pardue, 178 Cal.App.2d 528 , 533 [ 3 Cal.Rptr. 225 ].) The mandatory five-year provision of Code of Civil Procedure, section 583, applying prior to trial can have no application.

The summary judgment was entered on September 19, 1957, and remittitur was filed on February 18, 1959. The judgment was reversed and the cause remanded for further proceedings. Notice of motion to dismiss was filed March 27, 1961. More than two, but less than three, years elapsed between the going down of the remittitur and the motion to dismiss. It seems necessary to consider whether the two-year pretrial discretionary provision of Code of Civil Procedure, section 583, is applicable. The section expressly provides that when an appeal has been taken and judgment reversed with the cause remanded for a new trial, the action must be dismissed if not brought to trial within three years from the date the remittitur is filed in the trial court. No mention is made of the two-year provision in respect to delay subsequent to trial. In Clements v. Ragghianti, 155 Cal.App.2d 188 [ 317 P.2d 706 ], a case where, on appeal, it was held that the action

The fact that dismissal is mandatory after three years does not, however, deprive the court of the right to dismiss within a shorter time for lack of diligent prosecution. (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 Holt v. Pardue, supra, 178 Cal.App.2d 528 , 533.)

However, the notice of motion in the instant case was made on the authority of Code of Civil Procedure, section 583, and respondents state in their brief that at the hearing they opened the presentation of their motion with the statement that the motion was being made "on the basis of the two-year provision of Code of Civil Procedure 583, as well as the five-year provision of Code of Civil Procedure 583.” The judgment of dismissal also so provides and it is therefore clear that the dismissal was not granted under the inherent discretionary power of the court existing following the remittitur.

Since the dismissal was not granted under the inherent discretionary power of the court, we need not discuss whether a dismissal under such power would have constituted an abuse of discretion in this instance. However, even if the motion had sought to invoke the court’s general powers, it should not have been granted where, as here, it was noticed for hearing only seven days before the trial date and where, as the result of the efforts of both counsel after the filing of the remittitur on the former appeal, the trial was to be limited to consideration of two questions of law. All the facts had been agreed upon at the pretrial, and the trial was scheduled for a date 60 days thereafter with a time estimate of one-half day.

Fox, P. J., and Ashburn, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied October 17, 1962.