Bennett v. Bennett Cement Contractors, Inc.

California Court of Appeal Oct 16, 1981 No. Civ. 20638Published

Before: Reynoso

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Holding. The five-year statute of limitations for bringing an action to trial is tolled when it is impossible or impracticable to proceed due to court congestion, provided the plaintiff exercised reasonable diligence. Dismissing an action under these circumstances constitutes an abuse of discretion.

Issues

Does the five-year statute of limitations for bringing an action to trial apply when delays are caused by court congestion rather than a lack of plaintiff diligence?
Did the trial court abuse its discretion by dismissing the action for failure to bring it to trial within five years?

Disposition. reversed

Quotations verified verbatim against the opinion

“it will not be applied in cases where it is impossible, impracticable or futile due to causes beyond a party’s control to bring an action to trial during the five-year period.”

“When, however, a plaintiff has waited the normal time for a place on the calendar and has been assigned such a place well within the five-year period, his inability thereafter to proceed to trial because of continued court congestion should not be”

“We conclude plaintiff was denied a reasonable opportunity to bring his case to trial within the five-year period; to dismiss under such circumstances constitutes an abuse of discretion.”

[675]

Opinion

REYNOSO, Acting P. J.

Does the five-year statute apply when the failure is due to the court calendar and not to plaintiffs lack of diligence? James Bennett, plaintiff and appellant, appeals from a judgment of dismissal entered after the Yolo County Superior Court granted defendants’ motion to dismiss based upon plaintiffs failure to bring the action to trial within five years from the date upon which it was filed. (Code Civ. Proc., § 583, subd. (b).)

Under the facts of this case we conclude that the statute does not apply. Accordingly, we reverse.

Prior to October 1973, plaintiff and defendant Herman Bennett operated a cement contracting business under the name of Bennett Cement Contractors, Inc. In October 1973, it was agreed plaintiff would leave the business. Herman was assigned plaintiffs interest in the corporation’s accounts receivables and he, Herman, agreed to assume and pay all outstanding corporate debts.

Thereafter, on or about November 5, 1974, Syar Industries, Inc., filed a complaint in Solano County Superior Court under action number 59781 seeking to recover damages from both Herman and plaintiff. The damages represented the unpaid balance on a debt allegedly owed by the corporation to Syar. Plaintiff discovered what he believed to be diversion of corporate funds by Herman and on October 31, 1975, filed a shareholder’s derivative action in the Yolo County Superior Court under another action, number 33365. In addition, plaintiff filed a cross-complaint for indemnification against Herman in the then pending Solano County action. Eventually, the Syar Industries action was resolved through a settlement and a stipulation severing the remaining cross-complaint for indemnification and changing venue to Yolo County was entered on June 27, 1978.

When the cross-complaint was transferred to Yolo County, it was assigned Yolo County action number 38133. In April 1979, pursuant to request by plaintiff, an order was entered consolidating Yolo County action numbers 38133 and 33365. The consolidated matters were ordered advanced on the trial setting calendar for May 1979, and later set for trial on August 28, 1979. However, counsel for defendants success

Bennett v. Bennett Cement Contractors, Inc.

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