Majority
Opinion
Plaintiffs Louie Visco, et al., appeal from a judgment for defendants entered after the granting of defendants’ motion to dismiss
The relevant facts are as follows: On December 8, 1976, plaintiffs filed a complaint seeking specific performance of a contract for the purchase of approximately 500 acres of unimproved land. Allegedly from the date of filing the complaint until April 1, 1981, plaintiffs and defendants engaged in negotiations to settle the matter.[1]
On April 1, 1981, plaintiffs substituted counsel for purposes of trying the case when it became evident that a settlement was unobtainable. That same day, plaintiffs filed an at-issue memorandum as well as a motion for a special setting. Plaintiffs’ motion was granted on April 20, 1981, and the case was set for trial on October 5, 1981.
On May 7, 1981, defendants made a motion to dismiss pursuant to section 583, subdivision (a). On June 24, 1981, the trial court filed its order of dismissal. The court concluded that although defendants had shown no actual prejudice from the long delay between December of 1976 to April of 1981, prejudice would be presumed. Plaintiffs thereafter initiated this appeal.
Plaintiffs contend the trial court’s reliance upon the “presumption of prejudice” constitutes an abuse of discretion where no actual prejudice has been shown. They argue that the court failed to consider factors set forth under Rules of Court, rule 203.5(e).
California Rules of Court rule 203.5 sets forth several factors which a trial court must consider in exercising its discretion in adjudicating a motion to dismiss under Code of Civil Procedure section 583, subdivision (a). “[T]he trial court must consider factors such as the length of time between the filing of the complaint and the motion to dismiss, bearing in mind that as the time passes from two years nearer to five, the showing required to excuse a failure to bring a case to trial grows greater and greater. [Citations.] Other matters to be considered include the court’s file and the affidavits and supporting data submitted by the parties; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including
1 Defendants deny this allegation and insist that plaintiffs gave no indication that they desired to settle the matter. It is suggested that plaintiffs deliberately sought to delay the prosecution of the claim for economic and tactical considerations.
In its tentative ruling, the court considered the late filing of plaintiffs’ at-issue memorandum and how it possibly resulted in memory loss to witnesses, thereby prejudicing defendant. In its final ruling, the following colloquy is evidenced:
“The Court: I think it is a close case, and the reason I think it is a close case is that I do agree [defendants] have not demonstrated any substantial prejudice of the kind that commonly occurs in five year cases where people come in and make a showing there are certain necessary witnesses or desirable witnesses who are not able to be reached or documents have been destroyed or anything like that. And the moving party is relying on—as far as I am concerned—on the presumption of prejudice, rather than any demonstration of actual prejudice.
“Mr. Steward: We are claiming it, though.
“The Court: You are claiming it, but I am not giving you the motion based on that.
“I think all that has been demonstrated to the court’s satisfaction is the prejudice that always occurs from loss of memory, and the presumed prejudice that I think is still viable as a matter of law where there has been an unreasonable delay by the plaintiff, which has the burden of moving the action forward. And, as I have indicated, I think the event that triggers justified action by defendant—that is, justified inaction by the defendant-in not preserving those memories is the failure to file the at issue memorandum. I think that tips the balance in this close case.
“So I will grant the motion.”
Finally, defendants submit that this case is similar to Innovest, Inc. v. Bruckner (1981) 122 Cal.App.3d 594 , 599 [ 176 Cal.Rptr. 90 ]. In Innovest, we upheld the discretionary dismissal of the cross-complaint because it appeared from the record that plaintiff lacked any sincere desire to prosecute the cross-complaint with diligent speed. (Id., at p. 599.) Defendants maintain that plaintiffs here acted in a similar manner since the delay substantially benefited them.[2]
Innovest itself involved a plaintiff who failed to prosecute a cross-complaint in order to delay entry of a stipulated judgment. We are faced with no such situation here. While it may have been economically and tactically beneficial for plaintiffs to tie up only $500 in escrow, that in and of itself is not indicative of a lack of any sincere desire to prosecute their case. The $500 for escrow purposes most certainly was a mutually agreed upon figure.
Code of Civil Procedure section 583, subdivision (a), makes it discretionary for a trial court to dismiss an action for want of prosecution if it is not brought to trial within two years after being filed. (House v. State of California (1981) 119 Cal.App.3d 861 , 880 [ 174 Cal.Rptr. 279 ].) Such discretion should not be disturbed on appeal unless it appears there has been a miscarriage of justice. However, discretion is abused when the court exceeds the bounds of reason considering all the circumstances then before that court. (Innovest, Inc. v. Bruckner, supra, 122 Cal.App.3d at p. 598; Corlett v. Gordon, supra, 106 Cal.App.3d at p. 1012.) The burden is on defendant to show that dismissal was warranted. (Hocharian v. Superior Court (1981) 28 Cal.3d 714 , 722-723, fn. 7 [ 170 Cal.Rptr. 790 , 621 P.2d 829 ].)
2 The alleged benefit to plaintiffs is that they had deposited only $500 in escrow in connection with the contract and they were unwilling to incur the expense of prosecuting the action. Thus, defendants insist it cost plaintiffs little or nothing to keep the property tied up. “It was to the economic benefit of [plaintiffs] to delay until the last possible moment, and this is precisely what they did.”
After reviewing the record in toto, we are of the opinion that plaintiffs’ delay in bringing their action to trial was not entirely unreasonable and therefore we must conclude that the trial court exceeded its discretionary authority in dismissing their complaint. Resolving all reasonable doubts in favor of the party attempting to get to trial, substantial justice requires giving plaintiffs the opportunity to get their case tried on the merits. “[T]he discretion to be exercised in determining whether to dismiss the action is not a capricious or arbitrary discretion but ‘ “is one controlled by legal principles and is to be exercised in accordance with the spirit of the law and with a view to subserving, rather than defeating, the ends of substantial justice.” ’ (Ordway v. Arata, supra, 150 Cal.App.2d 71 , 75 [ 309 P.2d 919 ], quoting from Jepson v. Sherry (1950) 99 Cal.App.2d 119 , 121 [ 220 P.2d 819 ].)” (United Farm Workers National Union v. International Brotherhood of Teamsters, supra, 87 Cal.App.3d at p. 233.)
The order is reversed.
Feinerman, P. J., and Ashby, J., concurred.
A petition for a rehearing was denied August 1, 1983, and respondents’ petition for a hearing by the Supreme Court was denied September 14, 1983.
Cases cited
- Corlett v. Gordon 106 Cal.App.3d 1005 at 1013 p. 907
- Tannatt v. Joblin 130 Cal.App.3d 1063 at 1068 p. 907
- United Farm Workers National Union v. International Brotherhood of Teamsters 87 Cal.App.3d 225 at 236 p. 907
- City of Los Angeles v. Gleneagle Development Co. 62 Cal.App.3d 543 at 563 p. 908
- Innovest, Inc. v. Bruckner 122 Cal.App.3d 594 at 599 p. 908
- House v. State of California 119 Cal.App.3d 861 at 880 p. 908
- Hocharian v. Superior Court 28 Cal.3d 714 at 722-723 p. 908
- Ordway v. Arata 150 Cal.App.2d 71 at 75 p. 909
- Jepsen v. Sherry 99 Cal.App.2d 119 at 121 p. 909