Maguire v. Collier

California Court of Appeal Jun 23, 1975 No. Civ. 14504Published

Before: Paras

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Holding. The court held that the time during which a default and default judgment are in effect must be excluded from the mandatory five-year dismissal period under Code of Civil Procedure section 583, subdivision (b), even if the judgment is later found to be void. Additionally, the court held that a dismissal cannot be sustained under subdivision (a) when the moving party failed to provide proper notice of that basis for the motion.

Issues

Whether the trial court erred in refusing to exclude 410 days of alleged concealment from the five-year dismissal period.
Whether the trial court erred in refusing to exclude the time during which a default and default judgment were in effect from the five-year dismissal period.
Whether a dismissal can be sustained under subdivision (a) of section 583 when the motion was based exclusively on subdivision (b).

Disposition. reversed

Quotations verified verbatim against the opinion

“It is established law in this state that the period during which an adversary is in default, as well as the period, during which a default judgment is in effect, is to be excluded from computation of the mandatory five-year dismissal”

“in view of the reason for the rule excluding default time (impracticability of taking steps to bring the case to trial), which still exists even with a void judgment, we hold that the basic rule of the Ford and Vanyek cases applies”

“to the extent that the dismissal was based upon subdivision (a), the trial court committed error.”

Opinion

PARAS, J.

This is an appeal by cross-complainant Rose Maguire (hereinafter Maguire) from an order dismissing her cross-complaint against Alvin Rexford Collier and Anza Realty Co., a corporation,

pursuant to subdivision (b) of section 583 of the Code of Civil Procedure.

Maguire’s cross-complaint was filed on September 5, 1968. Collier moved to dismiss it on September 12, 1973, and the motion was heard and granted on September 25, 1973. The court thereafter entered its written order of dismissal on October 9, 1973. Thus, there is no denying that more than five years transpired between the filing of the cross-

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complaint and its dismissal. The questions raised by Maguire on appeal have to do with whether the trial court erred in not excluding certain periods of time from the five-year period. She also contends that to the extent that the dismissal was based upon subdivision (a) of section 583 of the Code of Civil Procedure, the trial court erred.

While subdivision (b) of section 583 of the Code of Civil Procedure is essentially mandatory, there are certain periods of time which either may or must be- excluded in considering a dismissal. For example, subdivision (f) provides that the time during which a defendant is not amenable to the process of the court must be excluded from the computation. Maguire contends that it was error for the trial court not to exclude 410 days which she claims is a period during which Collier concealed himself. She bases this contention upon the fact that pursuant to declarations of herself, of one James K. Norman and of one D. W. Vargas, regarding futile efforts to serve Collier, the superior court on August 12, 1969, issued an order for service of summons by publication. (Code Civ. Proc., § 415.50.) Since that order was never set aside, she claims that it was error for the court to refuse to exclude the 410 days of “concealment” from the 5-year period. We disagree.

While the order for substituted service was never formally set aside, it was for all practical (as well as legal) purposes set aside on March 11, 1971. On that date the court ruled on a motion to set aside a default and default judgment against Collier. It held that there was no legally cognizable evidence of concealment for the purpose of evading service of summons, and that the declarations upon which it had based its order for publication were legally ineffective. (See

Maguire v. Collier

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PARAS, J.

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