Clinton v. Joshua Hendy Corp.

Appellant filed an action for damages against various parties, including Joshua Hendy Corp., respondent herein, on June 11, 1959, in the municipal court; the same was transferred to the superior court on September 8, 1959. Thereafter, plaintiff took no steps to bring the action to trial against Joshua Hendy Corp. until a certificate of readiness was filed in latter 1964. No further action having been taken in that regard, Joshua Hendy Corp. on February 3, 1965, filed its notice of motion to dismiss the complaint under the provisions of section 583, Code of Civil Procedure. On February 11, 1965, the motion was granted and the court entered its order dismissing the action as to “All Defendants” under section 583. Plaintiff appeals from the order.

Over three years before, in 1961, other named defendants in the same action—International Organization of Masters, Mates & Pilots, West Coast Local No. 90, and Captain Robert E. Durkin, moved the court for a dismissal for want of prosecution. The motion was granted dismissing the action “pursuant to the provisions of section 583 C.C.P.,” on October 20, 1961; accordingly, the suit was dismissed as to those defendants. Appellant took no appeal from this order of dismissal, but thereafter, on November 1, 1961, moved the superior court for “Reconsidering the Court’s Order of Dismissal”; the

Shorn of its redundancies and irrelevant arguments concerning his subsequent “Motion for Reconsideration and Vacation of Order of Dismissal” (on which no hearing was had and no order made), “Notice of Intention & Motion For A New Trial” (which the trial judge ordered filed without setting for hearing because “there can be no ‘motion for new trial’ after action dismissed for want of prosecution pursuant to C.C.P. § 583”) and “Motion For Bringing in New Parties Under ‘C.C.P. #389’ ” (not part of this appeal), appellant ’s brief urges primarily that under neither the mandatory nor discretionary provisions of section 583, Code of Civil Procedure, is the action against Joshua Hendy Corp. subject to dismissal.

Section 583, Code of Civil Procedure, provides in pertinent part: ‘ ‘ The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due

Operation of the five-year limitation provision of section 583, Code of Civil Procedure, is mandatory unless the plaintiff can bring his ease within one of the exceptions made by the statute or within one of the implied exceptions recognized by decisions (Adams v. Superior Court, 52 Cal.2d 867 , 870 [ 345 P.2d 466 ] ; Rose v. Knapp, 38 Cal.2d 114 , 117 [ 237 P.2d 981 ] ; Eddings v. White, 229 Cal.App.2d 579 , 584-585 [ 40 Cal.Rptr. 453 ]; Tew v. Tew, 160 Cal.App.2d 141 , 144 [ 324 P.2d 625 ]); the burden of proving such exception lies with the plaintiff. (Muller v. Muller, 179 Cal.App.2d 815 , 819 [ 4 Cal.Rptr. 419 ].) The action was filed in the municipal court on June 11, 1959, and transferred to the superior court on September 8, 1959; the same had not been brought to trial on or before February 11,1965, almost five and one-half years later. Appellant argues that “the time consumed during the prior appeal is tolled and such is not comprised in the five-year period, and hence the statutory five-year period has not elapsed.” He attempts to bring himself within the following exception set forth in section 583: “When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed on appeal), the action must be dismissed by the trial court, . . . unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.”

This provision expressly applies only to a new trial of an action in which judgment has been entered and an appeal taken with reversal and remand for a new trial. “The statutory language is clear and the limitation therein expressed is not subject to construction or interpretation.” (Muller v. Muller, 179 Cal.App.2d 815 , 819 [ 4 Cal.Rptr. 419 ].) The exception is not applicable herein for a variety of reasons. First, the appeal on which appellant relies to toll the five-year

Both parties have discussed dismissal of the action under the two-year provision of section 583 and, while we have concluded that the action was properly dismissed under the five-year provision, it further appears that the same could have been dismissed under the following provision: “The court may in its discretion dismiss any action for want of prosecution . . . whenever plaintiff has failed for two years after action is filed to bring such action to trial, ...” (Code Civ Proc., § 583.) Up to the latter part of 1964 no steps were taken by plaintiff to bring the within action to trial between himself and Joshua Hendy Corp. The two-year discretionary period under the provisions of section 583, Code of Civil Procedure, expired at most in September 1961.

Appellant claims that if the trial court made its order under the above provision, it committed error in failing to file findings of fact and conclusions of law under section 632, Code of Civil Procedure, because “a ruling under the two-year discretionary dismissal provision requires a determination of a question of fact. ...” (A.O.B. p. 7.) The contention is without substance. Section 632 provides that “upon the trial” of a question of fact by the court, its decision must be given in writing, and in giving the same, the facts found and the conclusions of law must be separately stated. This section specifically refers to a “trial”; it contains no mention of hearings

Whether to dismiss an action for want of prosecution where two years have elapsed after the filing of the complaint is a matter within the discretion of the trial court, and the action of the court will be disturbed only upon a showing of manifest abuse (Hayashi v. Lorenz, 42 Cal.2d 848 , 851 [ 271 P.2d 18 ]; McKenzie v. Albaeck, 219 Cal.App.2d 97 , 98 [ 32 Cal.Rptr. 762 ] ; Rouse v. Palmer, 197 Cal.App.2d 666 , 669 [ 17 Cal.Rptr. 509 ]) ; it is incumbent upon appellant to show that there has been such an abuse of discretion. (Rouse v. Palmer, 197 Cal.App.2d 666 , 669 [ 17 Cal.Rptr. 509 ]; Bonelli v. Chandler, 165 Cal.App.2d 267 , 270 [ 331 P.2d 705 ].)

The trial court is bound to consider on a motion to dismiss not only whether plaintiff had a reasonable opportunity to bring the action to trial (Bank of America v. Superior Court, 84 Cal.App.2d 34 , 38 [ 189 P.2d 799 ] ; Ojeda v. Municipal Court, 73 Cal.App.2d 226 , 231 [ 166 P.2d 49 ]), but whether plaintiff discharged the duty falling on every person who files an action to prosecute it with reasonable promptness and diligence. (Bonelli v. Chandler, 165 Cal.App.2d 267 , 270 [ 331 P.2d 705 ].) It is the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to expedite his ease to a final determination. (Bella Vista Dev. Co. v. Superior Court, 223 Cal.App.2d 603 , 614 [ 36 Cal.Rptr. 106 ] ; Luna v. Valenzuela, 213 Cal.App.2d 232 , 236-237 [ 28 Cal.Rptr. 649 ].) The record before us is devoid of affidavits in opposition to the motion to dismiss or any mention of any preliminary proceedings, plaintiff claimed in his memorandum in opposition to motion for dismissal, had been had during the last five and one-half years. It appears, however, from appellant’s opening brief that his neglect of the within action against respondent herein was due to “the mistake of filing in municipal court and attempting to find federal court jurisdiction where there was none.” (P. 10.) Actually, only three months were “lost” to plaintiff by having filed his action in

We find nothing in the record before us to show any abuse of the trial court’s discretion if the dismissal was based upon want of prosecution during the two-year period; nor has appellant presented any facts which might justify his delay in bringing the action to trial.

The order is affirmed.

Wood, P. J., and Fourt, J., concurred.