Opinion
6-25-1953
HIROKO KAWAKITA HAYASHI et al. v. LORENZ et al. * Civ. 4531.
Morris Lavine, Los Angeles, for appellants. Horton & Knox, El Centro, for respondents.
HIROKO KAWAKITA HAYASHI et al.
v.
LORENZ et al. *
June 25, 1953.
Hearing Granted Aug. 20, 1953.
Morris Lavine, Los Angeles, for appellants.
Horton & Knox, El Centro, for respondents.
MUSSELL, Justice.
Plaintiffs appeal from an order dismissing an action filed by them on March 4, 1947. The action was not brought to trial and the order of dismissal was made and filed on February 29, 1952, on motion of the defendants on the ground that the plaintiffs had failed to prosecute said action with reasonable diligence.
It is alleged in the amended complaint, in substance, that plaintiffs Hiroko and Tomoya Kawakita were the owners of certain real property in Imperial county subject to a trust deed in favor of Yasaburo Kawakita; that the defendants entered into a conspiracy to defraud plaintiffs of the real property and the beneficial interests therein; that as a part of the conspiracy, defendants induced plaintiff Hiroko to enter into a contract of sale of said property for a sum far below the market value thereof; that as a further part of the conspiracy, defendant Lorenz secured his appointment as guardian of Tomoya and Hiroko and subsequently, as guardian, sold the property to defendant Rashid for the sum of $6,000; that the proceedings in the guardianship matter were defective in many particulars and were fraudulently conducted by defendants; that plaintiffs Hiroko and Tomoya were damaged thereby in the sum of $30,000 and plaintiff Yasaburo in the sum of $21,028.83.
On October 19, 1950, Hiroko and Tomoya filed a motion in the guardianship matter to vacate the order appointing Lorenz as guardian and all orders made thereafter on the grounds that the orders were wholly void for lack of jurisdiction in the court and of the parties. On July 24, 1951, the court made its order denying the motions of Tomoya Kawakita, denying the motion of Hiroko Kawakita to vacate the order of appointment of Lorenz as guardian and further ordered that as to Hiroko only, all orders in the guardianship proceedings subsequent to the appointment of Lorenz as guardian were vacated, annuled and declared void. Hiroko Kawakita appealed from this order and the appeal therefrom was decided by this court on June 25, 1953, 258 P.2d 1036.
On February 18, 1952, plaintiffs filed a notice of motion in the instant case to set the cause for trial at some date before March 4, 1952. The hearing on this motion was continued to February 28, 1952, and on that date was considered with a motion by defendants to dismiss the action for failure to bring it to trial with reasonable diligence. The motion to dismiss was granted and this appeal followed.
The rule is well settled that the power of a trial court to dismiss an action for failure on the part of the plaintiff to prosecute it with diligence is an inherent power which exists independent of statutory provisions 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. Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265, 268, 193 P.2d 53; Steen v. City of Los Angeles, 31 Cal.2d 542, 546, 190 P.2d 937.
Section 583 of the Code of Civil Procedure provides that 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. It is also the rule that the action of the trial court in dismissing an action for failure to prosecute diligently should not be disturbed except upon a showing of a clear abuse of discretion and it is incumbent upon the appellant to show that there has been such an abuse. Simonini v. Jay Dee Leather Products Co., supra, 85 Cal.App.2d 268, 193 P.2d 54.
In Jepsen v. Sherry, 99 Cal.App.2d 119, 220 P.2d 819, 820, this court held that the two years mentioned in the statute, Secs. 583 and 1190 of the Code of Civil Procedure, is not an arbitrary limit followed in all cases, but was intended as a general guide in determining whether or not a "want of prosecution" appears and, if so, whether the power should be used in view of the entire situation; that this discretion 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; and that each case must be decided upon its own peculiar features and facts.
In Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343, 344, it was held that 'The cases are uniform in holding that when the trial court dismisses an action under this section [C.C.P. § 583] the 'discretion' mentioned therein is the discretion of that court, and not that of a reviewing court. It is equally true that the action of the trial court will not be disturbed except on a showing of a manifest abuse of such discretion.' (Citing cases.)
In Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981, 983, it is said: 'The provision of section 583, requiring dismissal if an action is not brought to trial within five years after the filing of the complaint unless the parties have stipulated for an extension of the period, is mandatory, but it is subject to implied exceptions. As stated in Christin v. Superior Court, 9 Cal.2d 526, 532-533, 71 P.2d 205, 208, 112 A.L.R. 1153, 'The purpose of the statute is plain: to prevent avoidable delay for too long a period. It is not designed arbitrarily to close the proceeding at all events in five years * * *' and one exception has been recognized 'where, for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile.' See also Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 67-68, 168 P.2d 665; City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 916-917, 207 P.2d 17; Judson v. Superior Court, 21 Cal.2d 11, 14, 129 P.2d 361; Westphal v. Westphal, 61 Cal.App.2d 544, 550, 143 P.2d 405. What is impossible, impracticable or futile must, of course, be determined in the light of the facts of the particular case.'
It was held in Neustadt v. Superior Court, 112 Cal.App.2d 825, 827, 247 P.2d 569, that the extent of this exception is left undefined and a review of the cases shows merely that it is utilized in more or less justifiable situations, and that the problem is to determine whether the facts in any particular case fit the statement of the exception in the light of the facts to which that statement is applied.
In the instant case appellants argue that they could not go to trial until after the determination of the issues in the probate court proceedings and until after the final determination of the case of United States v. Tomoya Kawakita, D. C., 96 F.Supp. 824; that under the facts and circumstances, it would have been 'impractical and futile' to have brought the case to trial before the decision on the motion to vacate the judgment and orders in the probate court and that the court erred in holding that Section 583 of the Code of Civil Procedure had any effect where there had been a partial trial within the prescribed five year period. We cannot agree with these contentions.
In their amended complaint plaintiffs take the position that the sale in the probate proceedings was accomplished by fraud as a part of a conspiracy and damages only are sought. If the proceedings in the court were void as claimed on the motion to vacate them in the guardianship matter and so appeared from the record or judgment roll, then such proceedings could be set aside on motion at any time. As was said in In re Dahnke's Estate and Guardianship, 64 Cal.App. 555, 560, 222 P. 381, 384: 'It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. People v. Greene, 74 Cal. 400, 16 P. 197, 5 Am.St.Rep. 448; People [ex rel. Schwartz] v. Temple, 103 Cal. , 453, 37 P. 414. Equally well settled is it that a judgment or order, which is in fact void for want of jurisdiction, but the invalidity of which does not appear from the judgment roll or record, may be set aside on motion within a reasonable time after its entry, not exceeding the time limit prescribed by section 473 of the Code of Civil Procedure; and an independent suit in equity to set aside the judgment or order is not necessary. Norton v. Atchison, etc., R. R. C., 97 Cal. 388, 30 P. 585, 32 P. 452, 33 Am.St.Rep. 198; People [ex rel. Schwartz] v. Temple, supra; Smith v. Jones, 174 Cal. 513, 163 P. 890. The motion, in such case, is not necessarily based upon section 473; but, in determining whether it is presented within a reasonable time, the period prescribed by section 473 within which motions under it may be made is, as said in Smith v. Jones, supra, 'the standard or criterion in all cases.''
It is apparent that the guardianship orders could be and were attacked in the instant case and if any such order was void on its face it could be set aside by that court. The only issue in the proceedings on the motion in the probate matter determined adversely to appellants by the trial court was as to the appointment of Lorenz as guardian. All of his acts as guardian were vacated, annulled and set aside and he was discharged. Under these circumstances plaintiffs were not in a position to argue that they were prevented by the probate proceeding from trying the instant case. In this connection it may be observed that the motion to vacate the orders in the probate proceedings was not filed until October, 1950, more than three years after the filing of the original complaint and there appears to be no valid reason why the plaintiffs could not have secured a trial in the instant action during that period.
The argument that there has been a partial trial of the probate proceedings is without merit. Those proceedings were in a separate action and not in the instant case. The cases cited by appellant upon this argument are all cases in which proceedings of some kind had been instituted in the identical action in which the dismissal was sought.
The contention that the action could not be brought to trial because Tomoya Kawakita has been sentenced to death after a trial on an indictment charging him with Treason is likewise without merit. Tomoya left California and went to Japan, and did not return to the United States until 1946. According to the allegations in the amended complaint he knew nothing of the proceedings in the probate matter or of the sale of the property involved until 1946. The sentence of Tomoya was pronounced on or about October 5, 1948, and since that date he is deemed to be civilly dead. Penal Code Section 2602. Civil death has been defined as the state of a person who, though possessing natural life, has lost all his civil rights and as to them is considered dead. 16 Am.Jur., p. 11. The record shows that on August 6, 1948, Tomoya assigned all his right, title and interest in the matter to his attorney. There was no showing that Tomoya's presence was necessary at the trial of the action or that it could not have been had in his absence.
The record shows that although the instant action was filed on March 4, 1947, plaintiffs made no effort to bring the cause to trial until February 18, 1952, and that the reasons advanced by plaintiffs for the delay were not sufficient to require the trial court to deny the motion to dismiss under the rules herein stated. We cannot say that the trial court abused its discretion in dismissing the action.
The order of dismissal is affirmed.
BARNARD, P. J., and GRIFFIN, J., concur. --------------- * Subsequent opinion 271 P.2d 18.