Hibernia Savings & Loan Society v. Lauffer

This is an appeal from an order dismissing the above-entitled action for failure of plaintiff to prosecute said action with reasonable diligence.

On August 1, 1928, defendants John Lauffer and Margaret Lauffer executed a note and mortgage in favor of plaintiff, which mortgage contained a power of sale. The note became due and payable on August 1, 1929. On July

In arguing the question of whether the trial court erred in dismissing said action, the parties have discussed the nature of the power of the trial court with respect to such dismissals and the effect of the provisions of the statutes relating to such dismissals. It seems well settled that the power of a trial court to dismiss an action for failure on the part of plaintiff to prosecute it with diligence is an inherent power which exists without the aid of statutory authority and that the provisions of section 583 of the Code of Civil Procedure and of other related sections must be read in the light of the existence of such inherent power. (Romero v.

Since 1933, said section 583 of the Code of Civil Procedure has provided that ‘ ‘ The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed . . . unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended ...” It is thus apparent that said section purports to permit a dismissal in the discretion of the court at any time after two years and purports to require a dismissal at any time after five years except where the parties have stipulated for an extension. Said periods of two and five years now run from the time of the commencement of the action rather than from the time of the filing of the answer as previously provided.

The history of section 583 and the related sections is discussed at some length in Romero v. Snyder, supra, and Johnston v. Baker, supra, and need not be repeated here. The purpose of said section 583, as indicated in Romero v. Snyder, supra, at page 219 was “to fix': 1. A minimum period within which mere delay is not deemed to be sufficient cause; 2. An immediately ensuing interval of three years, during which the court, in its discretion, may adjudge it sufficient; and, 3. A maximum period of five years, upon the expiration of which, the delay is declared to be sufficient as a matter of law and the dismissal is made mandatory.” The dismissal was entered here after two years had elapsed and before five years had elapsed from the time of the filing of the action and therefore within the period in which the court admittedly had the power to dismiss the action in the exercise of its discretion. It would therefore appear immaterial whether the trial court was acting under its inherent power or under the power which said section purports to confer upon it for, in either case, it is settled that the order of the trial court dismissing said action should not be disturbed except upon a showing of a clear abuse of discretion. (Inderbitzen v. Lane Hospital, 17 Cal. App. (2d) 103 [ 61 Pac. (2d) 514 ] ; Steinbauer v. Bondesen, 125 Cal. App. 419 [ 14 Pac. (2d) 106 ]; Vogel v. Marsh, 122 Cal. App.

Plaintiff has endeavored to make a showing of an abuse of discretion on the part of the trial court but, in our opinion, the showing made is insufficient for that purpose. Plaintiff first calls attention to its affidavits in opposition to the motion in which it was alleged that certain negotiations were pending at one time. But defendants presented affidavits in conflict with those presented by plaintiff and alleged therein that defendants notified plaintiff in the early part of 1933 of their inability to make the payments required by the note and mortgage and further alleged that defendants then offered to convey the property to plaintiff and were then assured by plaintiff that it would not seek a deficiency judgment. These allegations were not denied by plaintiff. Plaintiff alleged that it did have certain negotiations with the holder of a subordinate judgment lien against the property but it affirmatively appears from plaintiff’s affidavits that any such negotiations were discontinued at some time prior to March 30, 1934, which was more than two years prior to the service of summons on defendants. It is undisputed that the place of residence and the place of business of defendants were in the county where the action was pending and were known at all times to plaintiff but no attempt to serve summons upon defendants was made until July 24, 1936. The trial court no doubt concluded that the pendency of any alleged negotiations prior to March 30, 1934, did not excuse the subsequent lack of diligence in the prosecution of the action and the trial court was entirely justified in so concluding. Plaintiff further calls attention to the fact that defendants failed to allege facts in their affidavits showing that they had a meritorious defense to the action or that they had been injured by the delay. It was unnecessary, however, to allege such facts. (Thompson v. Lester, 20 Cal. App. (2d) 745 [ 67 Pac. (2d) 1093 ] ; Heb v. Lager, 9 Cal. App. (2d) 324 [49 Pac. ( 2d) 886] ; Gray v. Times-Mirror Co., 11 Cal. App. 155 [ 104 Pac. 481 ].) Plaintiff cites and relies upon Herman v. Pacific Jute Mfg. Co., 131 Cal. 210 [ 63 Pac. 344 ], but that case is not controlling. The answer had been filed in that case and the court points out that defendant admittedly had no defense and had filed a sham answer merely for the purpose of delay. Such was not the case here. Ordinarily a defendant should not be required

Plaintiff further contends that defendants waived their right to move for a dismissal by the express terms of the mortgage and ,a!so by the filing of a demurrer and motion to set aside the trial court’s order permitting the filing of the amended and supplemental complaint. We find no merit in this contention. We will assume, solely for the purpose of this discussion and without deciding the question, that a defendant may waive the right to move for a dismissal and thereby deprive the court of any power to dismiss an action for failure to prosecute it with reasonable diligence. We are nevertheless of the opinion that there was no such waiver in the present case.

The mortgage contained the following provision: "In consideration of the granting of said loan to the Mortgagor by the Mortgagee, the Mortgagor hereby waives any and all defenses which may now or hereafter exist by virtue of any homestead statute, statute of limitation, or otherwise, to any action brought to foreclose said note or mortgage, or to the exercise of the power of sale herein contained, except the sole defense of payment.”

The quoted provision of the mortgage provides in effect for a forfeiture of certain rights of the mortgagor. The mortgage was drawn by the plaintiff and if it may be said that there is any uncertainty as to its meaning, it must be construed most strongly against the plaintiff. (Civ. Code, sec. 1654; 6 Cal. Jur. 309, sec. 185.) We will pass the question of whether the right to move for a dismissal of an action constitutes a "defense” as the above-quoted provision relates only to the waiver of the defense "to any action brought to foreclose said note or mortgage, or to the exercise of the power of sale therein contained.” So far as

In support of the contention that defendants waived their right to move for a dismissal by filing a demurrer and a motion to set aside the trial court’s order permitting the filing of an amended and supplemental complaint, plaintiff cites and relies upon certain language found in Johnston v. Baker, 167 Cal. 260 [ 139 Pac. 86 ] at page 265. We believe, however, that the decision in Romero v. Snyder, 167 Cal. 216 [ 138 Pac. 1002 ], is a complete answer to said contention. The language in Johnston v. Baker, supra, to which refer

In view of our conclusions that defendants had not waived their right to move for a dismissal of the action and that the trial court did not abuse its discretion in granting said motion, it follows that the order of dismissal should not be disturbed.

The order dismissing the action is affirmed.

Nourse, P. J., and Sturtevant, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 28, 1940, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 27, 1941.