Opinion
Page __
__ Cal.App.2d __ 336 P.2d 545 J. C. PENNEY COMPANY, a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR The COUNTY OF FRESNO, Respondent, Irene Johnson and Odel Johnson, Real Parties in Interest. Civ. 6025. California Court of Appeals, Fourth District March 19, 1959Hearing Granted May 13, 1959.
[336 P.2d 546] Stammer, McKnight & Barnum, Fresno, for petitioner.
Robert M. Wash, County Counsel, Fresno, for respondent.
James K. Kubota and M. Uchiyama, Fresno, for real party in interest.
PER CURIAM.
The petition of J. C. Penney Company, a corporation, shows that Odel Johnson and his wife Irene, commenced an action in Fresno County on December 31, 1953, alleging that on December 31, 1952, Irene Johnson fell while in defendant corporation's store and sustained personal injuries as a result of defendant's negligence. Summons and complaint was not served on defendant corporation until December 31, 1956. Said corporation then filed its answer on January 21, 1957. A memorandum to set said action for trial was not served and filed until December 5, 1957. A pretrial conference was thereafter set by court order for March 21, 1958. Prior to the pre-trial conference the attorneys for the respective parties entered into the following stipulation:
'Stipulation And Order Continuing Pre-Trial Conference.
'It is hereby stipulated by and between the parties hereto, that the pre-trial conference in the above entitled action, heretofore set for March 21, 1958, may be continued to be re-set upon motion of either party in order to permit the parties to complete the taking of depositions and discovery procedures.
'Dated: March 12, 1958.'
The court so ordered. The case was tentatively set for trial for May 15, 1958. The parties conceded on this hearing that the depositions and discovery proceedings mentioned in said stipulation were taken and completed in October, 1958, at least two months prior to the expiration of the five-year period, and no action was taken by plaintiff to set said action for trial within that period. On January 8, 1959, defendant corporation served and filed its notice of motion to dismiss the action for want of prosecution under section 583 of the Code of Civil Procedure, which provides in part:
'* * * Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced * * * unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended * * *.'
It appears that no counteraffidavits were filed in the Superior Court in opposition to said motion. The trial judge, upon the showing indicated, denied this motion upon the claimed ground that the written stipulation above quoted extended the time of trial of said action beyond the five-year period within the meaning of that section. He ordered the case set for pre-trial on February 10, 1959, over petitioner's objection, [336 P.2d 547] conducted said pre-trial conference and set the action for trial on March 2, 1959, and, on issuance of the order to show cause in this court, the trial date was tentatively reset for May 18, 1959, pending the decision herein.
Respondent court and Real Parties in Interest have now filed a counter-petition in opposition, claiming that the interpretation placed upon the stipulation by the trial court was reasonable, and accordingly it was binding on a reviewing court, citing such authority as Ruby v. Wellington, 162 Cal.App.2d 132, 327 P.2d 586; Bayle-Lacoste & Co. v. Superior Court, 46 Cal.App.2d 636, 116 P.2d 458, and Miller & Lux, Inc. v. Superior Court, 192 Cal. 333, 219 P. 1006.
That a writ of prohibition will lie to prevent a trial court from erroneously proceeding with the trial of an action after the time prescribed by section 583 of the Code of Civil Procedure has expired has been well established. Tomales Bay Oyster Corp. v. Superior Court, 35 Cal.2d 389, 392, 217 P.2d 968. The only question here is whether the written stipulation above quoted brings respondent within the exception 'when the parties have filed a stipulation in writing that the time (of trial) may be extended beyond the five-year period.'
It has been uniformly held that a stipulation merely extending the time for setting for trial or extending the time for some other act prior to the actual trial itself is not a stipulation extending the time of trial within the meaning of section 583, supra, unless it expressly extends the time of trial to a date beyond the five-year period or expressly waives the operation of that section. Sedarovich v. Paul, 16 Cal.App.2d 452, 60 P.2d 871; Rosenfelt v. Scholtz, 17 Cal.App.2d 443, 62 P.2d 381; Hastings v. Superior Court, 131 Cal.App.2d 255, 280 P.2d 74. Continental Pacific Lines v. Superior Court, 142 Cal.App.2d 744, 299 P.2d 417, definitely held that a stipulation that a case be dropped from the calendar to be reset on notice does not relieve plaintiff from bringing it to trial on time and does not take it out of the five-year period of Code of Civil Procedure, section 583. It also held that the established doctrine in this state is that it is the plaintiff upon whom rests the duty to use diligence at every stage of the proceedings to expedite his case to a final determination. See also Oberkotter v. Spreckels, 64 Cal.App. 470, 473, 221 P. 698. The policy of the law favors prompt disposition of litigation. Jackson v. De Benedetti, 39 Cal.App.2d 574, 577, 103 P.2d 990.
In Fisher v. Superior Court, 157 Cal.App.2d 126, 320 P.2d 894, the parties stipulated to a pre-trial hearing to be held on a date more than five years after the filing of the action. The trial court then set an actual trial date beyond that time. By agreement between counsel, on the date set for the pre-trial hearing, such hearing was placed off calendar and the trial date vacated. Thereafter, and beyond the five-year period, plaintiff moved for dismissal of the action under section 583, supra. A writ of mandate was issued compelling the Superior Court to dismiss the action.
The written stipulation here involved pertained only to the pre-trial conference set for March 21, 1958. In fact it was entitled 'Stipulation and Order Continuing Pre-trial Conference'. The continuance was only for the purpose of taking depositions. As noted, the taking of depositions was completed long before the five-year statute had run. There is nothing stated in this written stipulation that the actual trial of said action could be continued beyond the five-year period and it does not indicate petitioner waived any of its rights under section 583, supra. There is no ambiguity as to the meaning of the written stipulation and no conflict in the evidence as to the intention of the parties. Under these circumstances a reviewing court has authority to review the actions of the trial court in denying the motion. Miller & Lux, Inc. v. Superior Court, supra, 192 Cal. at page 341, 219 P. at page 1009.
Writ granted as prayed for in the petition.