Opinion
Hearing Granted November 30, 1967. Irmas & Rutter and William A. Rutter, Beverly Hills, for petitioner.
No appearance for Respondent.
Bolton, Groff & Dunne, Los Angeles, and Edward L. Lascher, Ventura, for real party in interest.
McCOY, Associate Justice pro tem.
By assignment of the Chairman of the Judicial Council.
Advance Report Citation: 251 A.C.A. 840.
Petitioner seeks a writ restraining the respondent court from taking any further action in Southern California Association of Cabinet Manufacturers v. Zenith National Insurance Company, number 790459, other than to dismiss the action.
Plaintiff's complaint was filed February 26, 1962. The action has been at issue ever since petitioner appeared therein on March 7, 1962. On March 27, 1967, five years and twenty-nine days after the filing of the action, petitioner's attorneys at the request of plaintiff's attorneys signed a certificate of readiness as required by local practice, allegedly unaware of the time factor involved. On March 27, 1967, having discovered that more than five years had elapsed since the commencement of the action, petitioner noticed a motion for an order dismissing the action under section 583, Code of Civil Procedure.
Petitioner's motion was denied on July 6, 1967, at which time the court made the following minute order: "The Court finds that it was impracticable to bring this action to trial within 5 years and that the defendant waived his right to make such a motion by executing a certificate of readiness. Motion denied." Petitioner thereupon sought relief from this court.
The real party in interest made its return to the alternative writ by demurrer and verified answer as permitted by Rule 56, California Rules of Court. We have concluded the demurrer should be overruled and that a peremptory writ should be granted. So far as pertinent here, section 583 of the Code of Civil Procedure provides that an action 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 filed a stipulation in writing that the time may be extended." In Woley v. Turkus, 51 Cal.2d 402, at pages 406-407, 334 P.2d 12, at page 14, the court said: "The purpose of section 583 is to prevent avoidable delay in bringing an action to trial. Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665; Christin v. Superior Court of Los Angeles County, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153. A delay of five years is declared by this statute to be unreasonable as a matter of law. [sic] (Romero v. Snyder, 167 Cal. 216, 220, 138 P. 1002; Hibernia Sav. & Loan Soc. v. Lauffer, 41 Cal.App.2d 725, 729, 107 P.2d 494) and to be sufficient time to complete preliminary matters in bringing the cause to trial.
The granting of the petition was originally opposed by a letter in which the attorneys for the real parties in interest conceded that the petitioner "set forth in the petition the statement of the case" except as to the date on which the motion to dismiss was denied. They accordingly attached to their letter a copy of the minute order of the respondent court. The argument contained in their letter was to the effect that there was "substantial support for the trial court's determination that it was impractical for the plaintiff to bring the case to trial within 5 years and there was substantial support for the determination of the trial court that the defendant has waived its right to move to dismiss by executing the Certificate of Readiness after the 5 year period had elapsed."
"However, the statute is not designed to arbitrarily close the proceedings at all events in five years. It expressly permits the parties to extend the period without limitation by written stipulation. Christin v. Superior Court, supra, 9 Cal.2d 526, 532, 71 P.2d 205, 112 A.L.R. 1153; Continental Pacific Lines v. Superior Court, 142 Cal.App.2d 744, 749, 299 P.2d 417. Exceptions have been recognized by the courts. One arises where a party is unable from causes beyond his control to bring the case to trial either because of a total lack of jurisdiction in the strict sense on the part of the trial court or because proceeding to trial would be both impracticable and futile. Whether it is impossible, impracticable or futile to proceed to trial must be determined in the light of the circumstances in each case. (Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981; Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 68, 168 P.2d 665; cf. Wyoming Pacific Oil Co. v. Preston, 50 Cal.2d 736, 740-741, 329 P.2d 489.) The circumstances include not only the terms of the written stipulation but the acts and conduct of the parties and the proceedings themselves." (See also HILL V. SUPERIOR COURT, 251 Cal.App.2d 746, 59 CAL.RPTR. 768 *.)
Plaintiff contends that it was impossible or at least impracticable to bring its case to trial within the five-year period because of the fact that while the action was pending the insurance commissioner had been appointed as conservator for Zenith National Insurance Company and that an order had been made in the conservatorship proceedings which made it impossible to prosecute the pending action while those proceedings were pending. We find nothing in the record of the conservatorship proceedings to support the finding of the respondent court that this was so.
The record in the conservatorship proceedings shows that a conservator was appointed on June 15, 1962, and that he served in that capacity until April 18, 1963. When the conservator was appointed on June 15, 1962, the court made an order: "That all persons are hereby enjoined from maintaining or instituting any action at law or suit in equity against said respondent or against the said conservator, and from attaching or executing upon or taking any legal proceeding against any of the property of respondent, and from doing any act interfering with the conduct of said business by The obvious weakness in plaintiff's position lies in the fact that there is no showing that its attorneys ever sought an order of the court in the conservatorship proceeding for leave to maintain and prosecute the action against petitioner, as permitted by the court's order in that case. Apparently plaintiff's attorney did contact a deputy insurance commissioner, advising him that he desired to apply to the court for such an order, and was advised by the deputy that the conservator would oppose any such motion because of the insolvency of petitioner and that, in the opinion of the deputy, the court would not grant such a motion. The implied finding of the respondent court that this conversation took place did not warrant the finding that it was impossible or impracticable for plaintiff to bring the action to trial during the period of the conservatorship.
In view of the apparent inaccuracy of the dates alleged in paragraph (2) of the petition, we have verified the dates stated in this opinion from the file in McConnell, Insurance Commissioner v. Zenith National Insurance Company, Superior Court, Los Angeles County, number 798365. The report and account of the conservator was approved July 17, 1963.
Even if we assume that plaintiff could not have obtained leave of court to prosecute the action while the conservatorship proceedings were pending, the record here does not show that plaintiff was precluded by any means beyond its control from bringing the action to trial within the five-year period. Even though plaintiff could not have brought the action to trial while the conservatorship proceedings were pending, there is no showing that it made any effort to have the action brought to trial after those proceedings were terminated on April 18, 1963, and before the expiration of the five-year period on February 26, 1967, nearly four years later. (Bank of America Nat. Trust & Savings Ass'n v. Moore & Harrah, 54 Cal.App.2d 37, 128 P.2d 623.) No valid excuse has been offered by plaintiff for its failure to do so.
There is nothing in cases such as Rose v. Knapp, 38 Cal.2d 114, 237 P.2d 981, Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153, and Vecki v. Sorensen, 171 Cal.App.2d 390, 340 P.2d 1020, which alters our conclusion on the point just discussed. In Christin the jurisdiction of the trial court was suspended by the pendency of an appeal in the pending action. Similarly in Rose v. Knapp, the court held that it would have been impracticable to bring the action to trial until the judgment in a prior action was reversed on appeal, and in Vecki v. Sorensen it was held that it was impracticable to bring the action to trial until the determination of a collateral action involving the title to plaintiff's land. There is no comparable showing here that it was objectively impossible or impracticable for plaintiff to bring its case to trial before the expiration of the statutory five-year period.
Plaintiff's contention that petitioner expressly waived its right to move for a dismissal of the action under section 583 of the Code of Civil Procedure by signing a certificate of readiness after the five-year period had elapsed has no merit.
Section 583 provides that if an action is not brought to trial within five years after plaintiff filed his action, it must be dismissed "except where the parties have filed a stipulation in writing that the time may be extended." The rule is stated in Bank of America, etc. v. Superior Court, 22 Cal.App.2d 450, 453, 71 P.2d 296, 297, that if it appears "that there is a written stipulation, the terms of which may be reasonably construed as a waiver of the right to invoke the provisions of said code section, the trial court's decision, on motion to dismiss, as to the meaning, scope and effect of such stipulation, constitutes a judicial determination which may not be disturbed by the reviewing courts in a mandamus proceeding instituted for such purpose. Ewell v. Superior Court, 69 Cal.App. 629, 232 P. 153. In other words, as said by the Supreme Court in the case of Charles L. Donohoe Co. v. Superior Court, 202 Cal. 15, 258 P. 1094, 1095: 'It is only when there is an entire absence of any showing constituting good cause presented in the superior court upon the hearing of the motion to dismiss that a writ of mandate The certificate of readiness involved here was part of a form provided by the respondent court entitled "Memorandum for Setting Contested Action and Certificate of Readiness." By signing the certificate, the attorneys for both parties thereby certified that the case "is at issue and now ready for pretrial/trial as to all parties served with process or appearing therein. All deposition and discovery proceedings and all law and motion matters have been completed" and "that this case is ready to be heard." In March 1967 the filing of such a memorandum and certificate was required by the respondent court as an aid to the court in the assignment of cases for pretrial and trial under existing laws and the then controlling California Rules of Court. (See Rev. Policy Memorandum, Setting Cases for Pretrial and Trial, Superior Court, Los Angeles County, effective July 1, 1966.) "The effect of filing a memorandum to set is to place a case on the Civil Active List (Rule 207). * * * The certificate of readiness (Exhibit A) has been incorporated with the memorandum to set to ensure that no case will be set for pretrial pursuant to Rule 209 and for trial pursuant to Rule 220 until the parties have certified the readiness of their case." (Ibid. Par. IV, B, 1.)
The use of certificates of readiness when required by any superior court by local rules is now expressly sanctioned by Rule 221, California Rules of Court, recently adopted and effective September 1, 1967.
It is apparent that the filing of a memorandum to set combined with a certificate of readiness is no more than another step which must be taken in order to have a case placed on the civil active list and to have the court set a date for trial. So considered it can hardly be said that such a certificate constitutes a stipulation extending the time for trial beyond the five-year period, or that it constitutes an express waiver of a defendant's right to move for a dismissal of the action after the five-year period has expired. (Cf. J.C. Penney Co. v. Superior Court, 52 Cal.2d 666, 343 P.2d 919; and Miles & Sons, Inc. v. Superior Court, 181 Cal.App.2d 151, 5 Cal.Rptr. 73.)
"A waiver may occur (1) by an intentional relinquishment or (2) as 'the result of an act which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.' (Rheem Mfg. Co. v. United States (1962), 57 Cal.2d 621, 626, 21 Cal.Rptr. 802, 371 P.2d 578, 581.)" (Crest Catering Co. v. Superior Court, 62 Cal.2d 274, 278, 42 Cal.Rptr. 110, 112, 398 P.2d 150, 152.) More specifically, in order to escape the otherwise mandatory operation of section 583, "the stipulation provided for in the exception must be in writing and it must clearly and definitely appear therefrom that the statutory time was deliberately intended to be extended by both parties. (Miller & Lux, Inc. v. Superior Court, 192 Cal. 333, 219 P. 1006.)" (Bank of America, etc. v. Superior Court, supra, 22 Cal.App.2d 450, 71 P.2d 296.) As the court said in Miller & Lux, Inc. v. Superior Court, 192 Cal. 333 at 339, 219 P. 1006 at 1008, "The statute provides that the time for trial may be extended by written stipulation. It does not provide that it may be extended by a written stipulation 'or its equivalent.' "
In our opinion the certificate of readiness signed by petitioner's attorneys cannot be construed as a stipulation in writing that the statutory period of five years may be extended or as a waiver of defendant's right to seek a dismissal of the action after the expiration of that period. This being so it is immaterial that the certificate of readiness was not signed and filed until after the expiration of the five-year period. (Miles & Sons, Inc. v. Superior Court, 181 Cal.App.2d 151, 5 Cal.Rptr. 73.) To hold otherwise would convert every certificate of readiness into a permissible equivalent of a written stipulation. This we cannot do. The demurrer to the petition is overruled. Let a peremptory writ of prohibition issue restraining the respondent court from any further proceedings in the pending action against petitioner other than to enter its order dismissing that action.
We concur:
FILES, P.J., and JEFFERSON, J., concur.