Opinion
Rehearing Denied Oct. 17, 1932.
Hearing Granted by Supreme Court Nov. 17, 1932.
Application by the Mercantile Development Company and others for a writ of mandate, requiring the Superior Court of the State of California, in and for the County of Los Angeles, to dismiss an action against petitioner.
Writ granted.
COUNSEL
Frank H. Love, A. L. Abrahams, and Cooper & Collings, all of Los Angeles, for petitioners.
Everett W. Mattoon, Co. Counsel, and S. V. O. Prichard, Deputy Co. Counsel, both of Los Angeles, for respondent.
Louis N. Whealton, Fred Miller, and Raymond J. Kirkpatrick, all of Long Beach, amici curiae.
OPINION
CRAIG, Acting P. J.
A civil action commenced in 1924 against the petitioner herein and others was continued from time to time, and was brought to trial on April 12, 1926; but the same was again continued owing to defective pleadings. On April 27 and 29, 1926, following amendments to the complaint, answers were filed. Numerous further continuances of the trial date followed, and on February 3, 1932, the action was dismissed. The order of dismissal was vacated upon motion of the plaintiff, and the defendants instituted the instant proceeding in mandamus, praying that said action be dismissed. The return to the alternative writ presents in resistance of the petition an asserted answer claimed to have been filed within five years next preceding said dismissal, and a stipulation in writing that the trial of the case might be held "on the 10th day of November, 1931, or such day subsequent thereto as may suit the convenience of the court."
The answer mentioned was originally filed, as above stated, more than five years before the order of dismissal was entered; but in November, 1931, it was stipulated by the parties that a third amended complaint might be filed by the plaintiff, and that said answers of April, 1926, might be deemed the pleadings of the defendants thereto. However, so far as appears, such complaint was not filed, nor was the stipulation reduced to writing or delivered to the clerk of the trial court, and they must therefore be disregarded. Nor does it appear that the trial was commenced on the 10th day of November, 1931, as previously stipulated. Section 583 of the Code of Civil Procedure provides in part, 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 answer is filed to bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended."
It is insisted that extenuating facts and circumstances which appear by affidavits tend to show that a dismissal would amount to an abuse of discretion. Oral understandings are not within the protection of the provisions of said section in such a case. Perrin v. Miller, 35 Cal.App. 129, 169 P. 426. The fact that the parties stipulated that the trial might be had on a date subsequent to the expiration of the five-year period does not preclude the defendants from insisting upon a dismissal, when it appears that numerous continuances during such period have been stipulated by the parties. Boyd v. Southern Pacific R. Co., 185 Cal. 344, 197 P. 58. The statute evinces an intent to cover the entire subject of dismissals for failure to bring an action to trial after answer filed, and after the expiration of five years a dismissal is mandatory. Romero v. Snyder, 167 Cal. 216, 138 P. 1002. Cited authorities warranting a different conclusion we think distinguish themselves from the facts here presented.
The writ of mandate is granted.
We concur: IRA F. THOMPSON, J.; STEPHENS, Justice pro tem.