Camille's Corp. v. Superior Court

ELKINGTON, J.

By petition for writ of mandate Camille’s Corporation and Peter Zane seek to compel the superior court to dismiss a personal injury action in which they are two of several defendants. It is contended that because plaintiff, Bernard B. Schnitzer, failed without legal excuse to bring the action to trial within five years, his action must, as a matter of law be dismissed under Code of Civil Procedure section 583.

Section 583, as relevant here, provides that “Any action . . . shall be dismissed . . . unless such action is brought to trial within five years . . . except where the parties have filed a stipulation in writing that the time may be extended. ...”

The operation of section 583 is

mandatory

unless the plaintiff can bring his ease within one of the statutory exceptions—here a stipulation in writing—or within an implied exception recognized by the courts. (See

Anderson

v.

Erwyn,

247 Cal.App.2d 503, 505 [55 Cal.Rptr. 634], and authority there cited.) A recognized implied exception is “ 1 impractibility due to excessive and unreasonable difficulty or expense.’”

(General Motors Corp.

v.

Superior Court,

65 Cal.2d 88, 94 [52 Cal.Rptr. 460, 416 P.2d 492] .)

In the proceeding below plaintiff (real party here) made the following showing by way of declarations of his attorneys. There were two corporate defendants, including Camille’s. A

[627]

dispute arose between them as to insurance coverage, each claiming that the other’s insurance carrier had the sole coverage. The defendants and their insurance carriers represented that they recognized plaintiff’s action as a case of liability. They stated that a declaratory relief action would be commenced to resolve the insurance coverage question, that plaintiff would be promptly advised at its conclusion, and that settlement negotiations would thereupon commence. They requested that “plaintiff take no further active steps with regard to this action, pending the determination of the declaratory relief action, because to do so would be futile and impractical because of the pending declaratory relief action and until such was determined both defendants would resist in any and every way payment of any judgment rendered in favor of plaintiff; and agreed that the passage of any time with regard to the pending declaratory relief action would be without prejudice to the timeliness of plaintiff’s proceeding with his action, if such became necessary, because plaintiff’s claims could not be settled. . . . [P]laintiff justifiably relied on these representations and did not pursue further active litigation in this action because of the foregoing. But for the foregoing representations to [plaintiff] and his justifiable reliance thereon, [plaintiff] would have pursued active litigation and brought this action to trial. ’ ’ Plaintiff never received notice or advice as to the status of the declaratory relief action. “A request for a written stipulation in this action waiving or extending the five-year statute of limitations has been made to defendants’ attorneys, but Mr. Werner [representing one defendant] has not responded to this request, despite numerous daily telephone calls to him in that regard and Mr. Burdick [representing the other defendant] advised that his principal would not authorize such. . . . Declarant was . . . deeply shocked at the refusal of the defendants to enter into a written stipulation to the extension of the five-year statute of limitations in this matter when such was requested, ...”