Miles v. Speidel

Opinion

McCLOSKY, Acting P. J.

Plaintiff Ellison Miles appeals from the order of dismissal entered in favor of defendant Glen Speidel. That dismissal was entered following the trial court’s order granting defendant’s motion to dismiss due to plaintiff’s failure to bring this action to trial within five years. (Code Civ. Proc., § 583.310.) Defendant has not filed a respondent’s brief even though he has been advised by the court by letter of December 16, 1988, of the effect of his not doing so. Accordingly, we “accept as true the statement of facts in the appellant’s opening brief . . . .” (Cal. Rules of Court, rule 17(b).)

Defendant’s failure to file a respondent’s brief does not, however, lead to an automatic reversal. While several cases contain language stating that the respondent’s failure to file a brief allows the court to “assume . . . the ground urged by appellant for reversing the judgment is meritorious”

(People

v.

Hacker Emporium, Inc.

(1971) 15 Cal.App.3d 474, 476-477 [93 Cal.Rptr. 132]), the better reasoned cases hold that “since the appellant has the affirmative burden to show error whether or not the respondent’s brief has been filed, the respondent’s failure to file does not require an automatic reversal. [Citations.]”

(In re Marriage of Davies

(1983) 143 Cal.App.3d 851, 854 [192 Cal.Rptr. 212].) Accordingly, while we accept plaintiff’s factual recitation in his opening brief as correct this does not obviate his burden of affirmatively demonstrating error.

[882]

Plaintiff filed the complaint in this action on March 23, 1981. The parties stipulated that the trial in this matter be continued until May 26, 1987, and that the five-year period expire on September 4, 1987. Plaintiff’s counsel then applied for and received a continuance of the May 26th trial date. Trial was then scheduled for October 13, 1987.

1

By letter of August 20, 1987, counsel for defendant suggested that a deposition then scheduled for August 27th be continued. That letter explains that defense counsel will soon be leaving the country and will not return until mid-September. The letter also states that “[i]f for any reason this poses a problem for you in terms of completing whatever discovery you think essential before the trial, I am prepared to agree to continue the trial (and to extend the five years) so that you are not in any way prejudiced.” On September 29, 1987, counsel for the parties entered into the following stipulation: “Plaintiff and Defendant have heretofore signed and filed Stipulations extending the time within which trial in this action must be commenced under Code of Civil Procedure § 583.310. Except for such filed Stipulations, no extension, waiver or estoppel, either by something express or implied, exists with regard to Defendant’s rights under Code of Civil Procedure § 583. However, Plaintiff and Defendant hereby further stipulate that in calculating the date by which trial must be commenced pursuant to Code of Civil Procedure § 583.310, the parties now further stipulate that pursuant to Code of Civil Procedure § 583.330 the period of time from October 13, 1987 to the next trial date ordered by this Court shall be excluded.”