Page ____ Cal.App.2d __ 230 P.2d 658 HEFFERNAN v. BENNETT & ARMOUR et al. Civ. 14489. California Court of Appeals, First District, First Division April 28, 1951.
Subsequent opinion 239 P.2d 129.
[230 P.2d 661] Vincent Hallinan, San Francisco, for appellant.
Erskine, Pillsbury & Tulley, Appel, Liebermann & Leonard, and G. D. Schilling, all of San Francisco, for respondent.
FRED B. WOOD, Justice.
Defendant appeals from the judgment rendered in favor of the plaintiff and against the defendant, and from certain orders hereinafter mentioned, in an action to set aside as in fraud of creditors the transfer of certain real property to defendant in March, 1938, and the payment of $16,000 to defendant in April, 1939.
Defendant claims the judgment is erroneous and should be reversed for the following reasons assigned by it: (1) Insufficiency of the evidence to support the findings of fact; (2) erroneous conclusions of law drawn from certain of the facts found; (3) errors of law occurring during the trial; (4) failure to bring the action to trial within five years after action filed, and (5) the action was barred by the statute of limitations.
We will consider first the jurisdictional question: Was the action brought to trial within the period of time required by section 583 of the Code of Civil Procedure? That section, during the pendency of this action until September 19, 1947, declared that 'Any action * * * shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred * * * unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have * * * stipulation in writing that the time may be extended * * *.' In 1947 the section was amended to substitute for 'stipulated' the words 'filed a stipulation', Stats.1947, ch. 678, p. 1715, effective Sept. 19, 1947, a change not material to the present inquiry.
To this five-year period, in the instant case, must be added the period of the pendency of defendant's appeal from an order denying its motion for change of venue. This is one of the implied exceptions to the five-year period prescribed by section 583, an interval during which, '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.' Christin v. Superior Court, 9 Cal.2d 526, 533, 71 P.2d 205, 208, 112 A.L.R. 1153. This interval in this case was the period of one year and 18 days. Defendant filed its notice of appeal April 16, 1943. The remittitur, after decision upon appeal, was filed in the trial court May 4, 1944. The action was filed December 7, 1942. It follows that December 27, 1948, was the last day upon which the action might be 'brought to trial,' failing which the court would lose all jurisdiction over the case except to dismiss the action.
On January 3, 1949, the case was on the calendar for trial. The parties made their opening statements and then the case was continued until the next day when the first witness was sworn and testified. Thereafter, the trial proceeded to completion. This was not a bringing of the action to trial within the period required by section 583.
Plaintiff contends, however, that there should be added to the five-year period the time during which defendant's motion for change of venue was pending in the trial court, a period extending from January 20, 1943, when notice of motion was filed, to April 9, 1943, when the order denying the motion was made. Plaintiff's theory is that during that period the trial court had no jurisdiction except to consider and decide that motion; hence, a period during which it was futile to proceed to trial, an interval impliedly excepted from the five-year period. That argument overlooks [230 P.2d 662] the fact that the making and disposition of such a motion is but one of a variety of preliminary proceedings (such as the hearing and disposition of demurrers, motions to strike, and motions to dismiss) that are potentially involved in the conduct of any action in the trial court before issues are joined and the cause is ready for trial. The time consumed by such preliminary proceedings in the trial court is not within any of the implied exceptions from the five-year period. In effect, time so consumed was in most cases automatically excluded during the period that the five years ran from the filing of the answer (1905 to 1933). The principal result of the 1933 amendment to section 583 (causing the five years to run from the filing of the action), and the manifest intent of the Legislature, was to include the time consumed in preliminary proceedings of that character. As stated in Breakstone v. Giannini, 70 Cal.App.2d 224, at page 229, 160 P.2d 887, 890: 'The Code extends to defendants the right to demur to the complaint and to the amended complaints. It is quite usual for defendants to demur and for the court to consume time in deciding the legal questions thus presented. It is also quite customary for counsel to stipulate that additional time may be allowed one side or the other within which to prepare, serve and file their respective pleadings. These practices must have been in the mind of the Legislature when it enacted the 1933 amendment to section 583, Code of Civil Procedure. The Legislature by that amendment has said, in effect, that time consumed in connection with demurrers and other ordinary steps before issue is joined is to be charged against the five-year period--that such time is not to be excluded from said period.' In Christin v. Superior Court, supra, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153, the respondent suggested 'that the conduct of petitioners in delaying the action by the proceedings instituted for change of venue, and further by their acts inducing the plaintiff to allow the cause to go off calendar pending negotiations for settlement,' 9 Cal.2d at page 529, 71 P.2d at page 207, justified the doctrine of estoppel against a defendant moving to dismiss. The court held that estoppel resulting from such conduct did not appear a proper ground for creating an exception to the terms of the statute. While that is not precisely the point immediately under discussion, it is significant that the Supreme Court in the same opinion, when holding that the time during which the appeal from the order granting a change of venue should be excluded in computing the five years, did not include in that exception any portion of the time during which the motion for change of venue was pending in the trial court. Illustrative of the principle that interruptions in the progress of the action in the trial court do not normally toll the running of the statute, are the following: Time consumed in attempting to negotiate a settlement, People v. Superior Court, 86 Cal.App.2d 204, 194 P.2d 571; the time during which a defendant is without an attorney of record, because plaintiff may terminate that interval by giving the notice authorized by section 286 of the Code of Civil Procedure, Larkin v. Superior Court, 171 Cal. 719, 154 P. 841; the period during which plaintiff's counsel is in doubt as to the jurisdiction of the court unless new parties are brought into the action, or delay caused by an attempt to agree upon a statement of facts, or the interval between the date of setting and the actual commencement of the trial, 'The fair test' being 'whether plaintiff in view of statutory provisions has had a reasonable opportunity to bring the action to trial'. Bank of America v. Superior Court, 84 Cal.App.2d 34, 38, 189 P.2d 799, 802. Consonant with that principle, the time during which a defendant secretes himself within the state to prevent service of summons or resides outside the state and thus prevents the plaintiff from proceeding to trial with reasonable certainty that a judgment would conclusively determine the rights of the parties, is excluded in computing the five-year period, Judson v. Superior Court, 21 Cal.2d 11, 129 P.2d 361, unless, as prescribed by the 1945 amendment to section 583, the defendant has had an attorney of record 'for a sufficient time to enable the action to have [230 P.2d 663] been tried if the plaintiff had acted with due diligence'. So, too, under appropriate circumstances, the time during which a defendant is absent upon military service may be excluded, Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 168 P.2d 665. But the only preliminary proceeding in the trial court which thus far has been recognized as coming within one of the implied exceptions, is the reference, in a water suit, to the State Division of Water Resources to investigate and report to the court concerning the available water supply and other related issues in the suit. The reason for this exception, based upon the facts and circumstances of the case before it, was expressed by the Supreme Court in City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 207 P.2d 17, in these words: 'The order of reference was made on February 8, 1939; the referee's report was filed on July 16, 1943, and, thereafter, respondents proceeded with reasonable dispatch to bring the cause to trial. The issues to be tried were dependent to a great extent upon the facts to be ascertained by the referee, and it would have been impracticable, if not futile, to proceed to trial prior to the completion of the report. It follows that the time consumed by the reference should be excluded in computing the five-year period, and that, therefore, the action was not subject to dismissal under the provisions of section 583.' 33 Cal.2d at page 917, 207 P.2d at page 23.
The conclusion is inescapable that the time consumed in the court below by the defendant in making and presenting its motion for change of venue, by plaintiff in opposing that motion, by both parties in preparing and filing briefs in support of their respective positions, and by the court in considering the motion and making its decision after submission, is not within one of the implied exceptions from the five-year requirement of section 583 and cannot be excluded in computing that period of time.
Plaintiff further contends that the five-year period was indefinitely extended by defendant by stipulation in writing. He invokes a writing dated October 29, 1945, signed by the attorneys of the parties, whereby they stipulated that the trial 'be continued to the 7th day of Jan. 1946, to be set,' and that 'the plaintiff shall not be prejudiced by this extension, or any previous extension which may have been granted,' followed by the statement that 'Defendant further waives the provisions of Section 581a and 583 of the Code of Civil Procedure and agrees not to dismiss the above entitled action on the ground that the same has not been prosecuted with diligence to the date hereof. Said sections are waived only as to past extensions and the right to move to dismiss for any lack of diligent prosecution hereafter is not waived.' That, at the very most, was a stipulation that the action might be brought to trial within a reasonable time after the setting date. From that date (January 7, 1946) the five-year period, as extended by the appeal period, had two years, 11 months, and 20 days yet to run, a more than reasonably ample period to bring the action to trial, the answer to the complaint already having been filed. One year and five months was deemed a reasonable time within which to bring an action to trial in Superior Oil Co. v. Superior Court, 6 Cal.2d 113, at page 116, 56 P.2d 950, in upholding the application to that case of the 1933 amendment to section 583 which started the five-year period as of the date of the filing of the action instead of the filing of the answer. That plaintiff herein was not misled by this stipulation of October 29, 1945, is demonstrated by the fact that in an affidavit by one of his attorneys, filed September 24, 1947, in support of plaintiff's motion to advance the cause for trial, the statement was made that 'the five-year period within which said action may be tried will expire on December 7, 1947 unless trial is begun before that date,' and in an affidavit by the same attorney, filed October 1, 1947, appears the statement that on or about October 29, 1945, defendant's attorney 'agreed to waive the provisions of Section 581a and 583 of the Code of Civil Procedure to the date of the stipulation, but only as to past extensions and not as to future ones.'
[230 P.2d 664] Finally, plaintiff claims that the action was brought to trial on October 22, 1947; hence, well within the five-year period. He predicates this claim upon the fact that on that day the cause was on the calendar for trial, the parties answered 'Ready,' and one of plaintiff's attorneys made an opening statement, and then moved that the cause be continued pending the completion of the trial of another case in which plaintiff's attorneys were then engaged. That opening statement was very brief. It took up but 33 lines of the reporter's transcript, including the reading of the prayer of the complaint. It was avowedly made for the sole purpose of meeting the requirements of section 583. The court asked: 'The only reason you are not immediately presenting the case is because you are engaged in Judge Conlan's court?' and one of plaintiff's attorneys replied, 'Yes, and will be for some weeks.' Defendant resisted the motion for a continuance. Its attorneys testified that the other action was filed almost three years later than this one and that two days prior to the filing of plaintiff's notice of motion to advance this case on the calendar, his attorneys stipulated that the trial of the other case commence and that it did commence while plaintiff's motion to advance this case was pending. Defendant claimed that the mere making of an opening statement was no compliance with the requirements of section 583. The motion for continuance. Its attorney testified that the of the other case. The trial of the other case was completed in February, 1948. This case did not come on for trial until January 3, 1949, when a new, or amplified, opening statement was made by plaintiff, followed by the introduction of evidence commencing January 4, 1949.
We have found no decision which holds that an action is 'brought to trial' by merely making an opening statement and then postponing the case to a definite date, or indefinitely, for the commencement of the taking of evidence. In Miller & Lux Inc. v. Superior Court, 192 Cal. 333, 219 P. 1006, the court held that the fact that plaintiffs were present in court, ready to proceed to trial, on the day set for trial was not a bringing of the action to trial, citing with approval a similar holding in Ravn v. Planz, 37 Cal.App. 735, 174 P. 690. The mere making of an opening statement, without presenting a single witness or offering any evidence of any kind, would seem even less a bringing to trial, especially when such is done for the avowed purpose of not going ahead at that time, solely for the convenience of plaintiff's own attorneys and not because the business of the court or the demands of the defendant prevent plaintiff from proceeding with the trial.
What does the word 'trial' mean as used in section 583? 'The term 'trial' as applied to one of the steps in the disposition of an action is well understood in the practice in this state. It is the trial of the issues of fact (Perrin v. Miller, 35 Cal.App. 129, 169 P. 426), the purpose of which is to determine the cause on the merits, and it is not completed until the decision of the court is made and filed with the clerk (Broder v. Conklin, 98 Cal. 360, 33 P. 211; section 632, Code Civ.Proc.), unless findings be waived (section 634, Code Civ.Proc.). Whether made and filed or waived, judgment may then be entered and the cause thus be disposed of on the merits.' Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 116-117, 56 P.2d 950, 952. Accordingly, none of the following is deemed a part of the trial of an action: The hearing and disposition of a demurrer, Smith v. Wiget, 75 Cal.App.2d 591, 171 P.2d 563; Breakstone v. Giannini, supra, 70 Cal.App.2d 224, 160 P.2d 887; Meier v. Superior Court, 55 Cal.App.2d 675, 131 P.2d 554, save when a demurrer to a complaint is sustained without leave to amend and judgment is entered thereon, which really dispenses with a trial unless the judgment is vacated, Smith v. City of Los Angeles, 84 Cal.App.2d 297, 190 P.2d 943; a motion to set, Jones v. Superior Court, 86 Cal.App. 542, 195 P.2d 451; the hearing and disposition of an application for a preliminary injunction, Superior Oil Co. v. Superior Court, supra, 6 Cal.2d 113, 116, 56 P.2d 950. We have found no case in which anything short of the introduction of evidence upon issues of fact framed by the pleadings was deemed a bringing to trial. 'It has frequently [230 P.2d 665] been held that a partial trial within the prescribed period takes the case out of the operation of that section. Mercantile Invest. Co. v. Superior Court, 218 Cal. 770, 25 P.2d 12; City of Los Angeles v. Superior Court, 15 Cal.2d 16, 98 P.2d 207; Krasnow v. Superior Court, 15 Cal.App.2d 141, 59 P.2d 442; Kosturos v. Municipal Court, 51 Cal.App.2d 700, 125 P.2d 572. In all of these cases the partial trial which was held sufficient for this purpose consisted in the calling of witnesses and the taking of evidence.' Meier v. Superior Court, supra, 55 Cal.App.2d 675, 676, 131 P.2d 554, 555; emphasis added. In none of the cases just cited do we find any indication that plaintiff intended to do anything short of going ahead with the trial on the merits. For example, in City of Los Angeles v. Superior Court, 15 Cal.2d 16, 98 P.2d 207 (an action to abate a nuisance), after one day of testimony on the part of plaintiff, defendant tendered and plaintiff accepted a stipulation for a continuance of the trial and for a preliminary injunction restraining defendant from operating its plant in a certain manner. In Krasnow v. Superior Court, 15 Cal.App.2d 141, 59 P.2d 442, the trial proceeded to the point of plaintiff resting his case before continuances occurred which carried it beyond the five-year period. It is true that in Miller & Lux Inc., v. Superior Court, supra, 192 Cal. 333, 219 P. 1006, the suggestion was made that 'if counsel had desired to avoid the bar of the statute it would have been a very simple matter, after calling the court's attention to the situation, to have requested that one witness be sworn in the cases and then the hearing of the cases continued until a time which would be convenient for the court and the parties to the action.' 192 Cal. at page 342, 219 P. at page 1009. That suggestion must be read in its context. The court had held that merely being present in court with witnesses, ready to proceed on the trial date, but suffering without objection continuance to a date beyond the five-year limit, was not bringing the action to trial. The court went on to say that 'Doubtless if objection had been made and the trial court's attention called to the fact that a further continuance would have the effect of putting the case beyond the bar of the statute, the trial court would have ordered that the cases proceed to trial or else have exacted a written stipulation from the defendants extending the time of the trial.' 192 Cal. at page 342, 219 P. at page 1009. Then immediately followed the suggestion above quoted. The reasonable inference is that if in such a situation the court refused to proceed (whether because its calendar did not permit or for other reason beyond plaintiff's control) and refused to exact or was unsuccessful in exacting a stipulation from the defendant, then it might be in order for the plaintiff to request and the court to grant permission to swear a witness and take some testimony on the issues in the case. Such a suggestion falls far short of sanctioning a mere opening statement, especially when made upon the urgent insistence of the plaintiff, for his sole convenience, and under no compelling necessity which excused him from bringing the action to trial within the period of six years and 20 days after action filed, or within three years, 11 months and 15 days after issues joined, defendant's answer having been filed January 12, 1945.
The only authority which plaintiff cites for 'bringing to trial' by the making of an opening statement is the 1947 amendment to section 581 of the Code of Civil Procedure. It has no significance in the construction and application of section 583. Section 581, subdivision 1, deals with voluntary dismissal of an action. Until amended in 1947, it authorized dismissal 'By the plaintiff * * * at any time before the trial' under certain conditions. That meant at any time before submission of the cause. See MacDermot v. Grant, 181 Cal. 332, 334, 184 P. 396, and cases cited. If after trial and before decision the submission were vacated, plaintiff could dismiss. Reynolds v. Vidor, 45 Cal.App.2d 685, 114 P.2d 617. Also, it was a right which was revived after reversal of a judgment and remand for a new trial and could then be exercised as if there had never been a trial. Schubert v. Bates, 30 Cal.2d 785, 185 P.2d 793.
[230 P.2d 666] The 1947 amendment to section 581 merely substituted 'before the actual commencement of trial' for 'before the trial' and declared that 'A trial shall be deemed to be actually commenced at the beginning of the opening statement of the plaintiff or his counsel, and if there shall be no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.' Manifestly, the Legislature meant that definition to apply only to the situation with which the section amended, § 581 deals, could not have intended by that amendment to change the long established meaning of 'trial' as used in section 583.
On or about October 4, 1947, the court denied a motion by defendant to dismiss under section 583. Such denial was within the discretion of the court, for the five-year period had not run. Defendant renewed its motion when the case was called for trial on January 3, 1949. That motion should have been granted, for the five-year period, as extended by the period of the appeal from the order denying a change of venue, had expired. The judgment should be reversed and the action dismissed.
Defendant has also appealed from the following orders: An order of May 12, 1949, appointing a receiver of the business, property and assets of defendant; an order of June 14, 1949, permitting amendment of the complaint to conform with the proof and to add a party defendant to the action; and an order of August 20, 1949, denying defendant's motion to set aside the judgment, findings of fact and conclusions of law and the above-mentioned orders of May 12 and June 14, 1949, and also denying defendant's motion to strike the judgment, findings of fact and conclusions of law and the orders of May 12 and June 14, 1949. The findings of fact and conclusions of law were dated and filed June 13, 1949. The judgment was dated and filed June 14, 1949.
The appeal from the order of June 14, permitting amendment of the complaint and the addition of a party, must be dismissed. That order, though made and filed the same day as the judgment, presumably was made and filed prior to the judgment. It was, therefore, an intermediate nonappealable order. That portion of the order of August 20 which denied the motion to vacate and strike the order of June 14 was likewise nonappealable.
The order of May 12, appointing a receiver, was appealable. It should be reversed for the same reason that the judgment should be reversed.
That portion of the order of August 20 which denied the motion to vacate and strike the order of May 12, the findings of fact and conclusions of law, and the judgment, was appealable as a special order made after final judgment, one which involved issues of fact not presented by the record upon the appeal from the judgment. The basis of defendant's motion was the claim that the actions of the court which it proposed to vacate and strike were taken and made while defendant's sole attorney was suspended, and without notice to defendant to obtain an attorney or to appear in person, as required by section 286 of the Code of Civil Procedure. If the order of May 12, the findings and conclusions, and judgment were valid, that appeal from the order of August 20 would have to be affirmed. There was substantial evidence in support of the implied finding that the attorney who was under suspension was not defendant's sole attorney in the action. But the order of August 20 was void for the same reason that the judgment was void. Accordingly, the appealable portion of the order of August 20 should be reversed.
The judgment, the order appointing a receiver, and the appealable portion of the order of August 20, 1949, are reversed, with instructions to the trial court to dismiss the action. The appeals from the order of June 14 and from the nonappealable portion of the order of August 20, 1949, are dismissed.
PETERS, P. J., and BRAY, J., concur.