Kowalski v. Cohen

TAYLOR, J.

Plaintiff appeals from an order dated March 5, 1965, dismissing his action for failure to bring the matter to trial within the time required by section 583 of the Code of Civil Procedure. Plaintiff argues that: (1) the court was without jurisdiction to grant defendants’ motion for dismissal as the proper notice was not given; (2) the five-year statutory limitation provided for in said section ran from the time of the filing of the amendment to the original complaint; (3) defendants’ claim for separate affirmative relief and damages prevented a dismissal; and (4) defendants produced no evidence that they were prejudiced or damaged because of plaintiff’s delay. We have concluded that there is no merit in any of these contentions.

The facts are not in dispute. On October 10, 1959, the parties entered into a partnership agreement, whereby plaintiff agreed to purchase for $4,500 a one-half interest in defendants’ Metro Bug Washing Company in San Francisco. On November 25, 1959, plaintiff filed his complaint in this action, alleging that defendants had failed to convey to him a one-half interest in the partnership. On February 17, 1960, plaintiff recorded a lis pendens. On March 24, 1960, plaintiff amended his complaint by changing the cause of action to one for fraud seeking a constructive trust. On June 1, 1960, defendants filed an answer denying the allegations of the amended complaint, and a counterclaim for $3,000 damages allegedly sustained by defendants because of plaintiff’s refusal to devote any of his time and efforts to the partnership. After pretrial had been set for December 1, 1960, the matter was ordered off calendar on the motion of plaintiff in

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order that additional necessary parties be identified and brought into the action and to commence additional discovery proceedings. Plaintiff apparently believed he was protected by the lis pendens and obtained the consent of his counsel to a substitution of attorneys.

On February 4,1965, defendants noticed for February 10 a motion to dismiss based on plaintiff’s failure to bring the matter to trial within the mandatory statutory period of five years. On February 8, 1965, plaintiff filed a memorandum to set and on the following day (February 9, 1965) moved for an extension of time to bring the matter to trial. At the February 10 hearing on the motion, the court granted defendants’ motion to dismiss the action on the basis of the discretionary two-year period of the statute. On March 1, 1965, the court granted plaintiff’s motion to reconsider. After an extensive discussion of both the discretionary (two-year) and mandatory (five-year) statutes of limitations provided by section 583 of the Code of Civil Procedure,