Lemaire, Faunce & Katznelson v. Cox

California Court of Appeal Aug 20, 1985 No. B006449Published

Before: Hastings

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Holding. A partial summary adjudication of issues does not constitute a "trial" for the purposes of the five-year mandatory dismissal statute under Code of Civil Procedure section 583, subdivision (b), because it does not bring the action to a stage where final disposition can be made.

Issues

Whether a partial summary adjudication of issues constitutes a "trial" under Code of Civil Procedure section 583, subdivision (b).
Whether court error or administrative oversight in trial setting excuses a plaintiff's failure to bring an action to trial within the five-year period.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A ‘trial’ within the meaning of section 583 is the determination of an issue of law or fact which brings the action to the stage where final disposition can be made.”

“The partial adjudication obviously did not expedite the final trial of the cross-complaint.”

“It is the plaintiff’s duty to keep track of the pertinent dates which are crucial to the maintenance of his lawsuit and to see that the action is brought to trial within the five-year period.”

[299]

Opinion

HASTINGS, J.

The principal issue on this appeal is whether a partial adjudication of issues pursuant to Code of Civil Procedure section 437c constitutes a “trial” under Code of Civil Procedure section 583, subdivision (b).

Lemaire, Faunce & Katznelson, (Lemaire) respondent to this appeal, filed a complaint on September 26, 1978, against Robert Cox, appellant, for failure to pay attorneys fees. Cox cross-complained against Lemaire alleging, among other things, negligence on behalf of Lemaire in the handling of his case. The cross-complaint was filed on September 26, 1978.

The complaint was dismissed and no appeal was taken, therefore, the issue raised in this appeal involves only the cross-complaint.

On September 16, 1982, Lemaire filed a motion for summary adjudication of issues pursuant to Code of Civil Procedure section 437c. The motion was granted in part and denied in part.

On March 23, 1984, approximately five years and six months after the complaint and cross-complaint were filed, Lemaire filed a motion to dismiss the cross-complaint pursuant to Code of Civil Procedure section 583, subdivision (b). The motion was granted and this appeal followed.

Cox argues that the court erred in dismissing the action because the “trial” had commenced within the five-year period when the court heard and granted in part Lemaire’s motion for summary adjudication of issues. Cox relies on

Berri

Superior Court

(1955) 43 Cal.2d 856 [279 P.2d 8], where the Supreme Court ruled that “a partial trial of an action will take the case out of the operation of section 583.”

(Ibid.,

at p. 861.)

Berri

involved a situation where plaintiff’s action had been dismissed for failure to amend his complaint after defendant’s demurrers had been sustained. The court stated: “Where a demurrer has been sustained without leave to amend, or the time given to amend has expired, the matter has reached such a stage that a final determination of the action is contemplated, and hence section 583 does not require a dismissal because of the lapse of five years since the commencement of the action. There is nothing in the instant case to indicate other than that the case is to be finally disposed of on issues of law—by way of demurrer."

Lemaire, Faunce & Katznelson v. Cox

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HASTINGS, J.

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