Sedarovich v. Paul

California Court of Appeal Sep 11, 1936 No. Civ. 11014Published

Before: Roth

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Holding. A stipulation to set a case for trial at an indefinite future time does not divest a trial court of its discretion to dismiss an action for lack of prosecution, and the court did not abuse its discretion in dismissing the case where the plaintiff failed to show diligence. Furthermore, the court found no error in the appearance of substituted attorneys despite a delay in filing the formal substitution, as no party was prejudiced.

Issues

Whether a stipulation to set a case for trial at an indefinite future time precludes a trial court from dismissing an action for lack of prosecution under section 583 of the Code of Civil Procedure.
Whether the trial court abused its discretion in dismissing the action for lack of diligence.
Whether the trial court erred in allowing attorneys to represent a party when the formal substitution of attorneys was not filed until after the motion to dismiss was drafted.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the authorities arc clear that a stipulation to set a case for trial at some indefinite time in the future cannot divest the trial court of the right to exercise its discretion, pursuant to the terms of section 583, Code of Civil Procedure.”

“The question actually before us, therefore, is whether the trial court abused its discretion when it made its order. It is clear to us that the discretion of the trial court was properly and judicially exercised.”

ROTH, J., pro tem.

On February 7, 1930, plaintiff suffered injuries in an automobile accident, as a consequence of which he filed his complaint on February 6, 1936. Thereafter the action was set down for trial on April 21, 1932, but it was not actually called for trial on that day. The attorneys for the respective parties, however, did on that day enter into a stipulation, the material part of which is as follows: “It is Stipulated that the above entitled case may be set for trial at any time on or after the fifth day of May, 1932.” At the bottom of the same stipulation is set forth the following: “Went off calendar on the 22nd day of April, 1932, at the hour of 9 :30 a. m.”

The foregoing stipulation was not actually filed until January 17, 1936. Thereafter, the cause was set down to be tried on January 27, 1936. On January 21, 1936, respondents moved that the action be dismissed for want of prosecution and lack of diligence, pursuant to the provisions of section 583, Code of Civil Procedure. The trial court granted the motion. .

Appellant’s first point on this appeal is that the court had no discretion to dismiss the action in the face of the stipulation which has been set out heretofore.

[454]

The authorities arc clear that a stipulation to set a case for trial at some indefinite time in the future cannot divest the trial court of the right to exercise its discretion, pursuant to the terms of section 583, Code of Civil Procedure. Such a stipulation can mean no more than that the case would be set down for trial within a reasonable time in the future, and the burden is upon the plaintiff to show diligence in attempting to bring on the case for trial within such reasonable time.

(Larkin

Superior Court,

171 Cal. 719, 723 [154 Pac. 841, Ann. Cas. 1917D, 670] ;

Boyd

Southern Pacific R. R. Co.,

185 Cal. 344, 346 [197 Pac. 58];

City of Los Angeles

Sedarovich v. Paul

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