Derry v. Superior Court

California Court of Appeal Oct 16, 1968 No. Civ. 33597Published

Before: Files

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Holding. The court held that a trial court's discretionary dismissal for lack of prosecution under Code of Civil Procedure section 583 requires a properly noticed motion and a fair hearing, as an impromptu oral motion without notice or evidentiary support constitutes a denial of due process.

Issues

Whether a trial court may dismiss an action for lack of prosecution under Code of Civil Procedure section 583 based on an oral motion without advance notice or evidentiary support.
Whether a trial court's discretionary dismissal for lack of prosecution requires a factual basis established through a fair hearing.

Disposition. remanded

Quotations verified verbatim against the opinion

“When a court is empowered to exercise its discretion it must have before it some pertinent information as a basis for its decision.”

“In the case at bench it does not appear that plaintiffs had any advance notice that they would be called upon to explain why they had not tried the case earlier.”

“A judgment supported by no more than that is a denial of due process.”

[558]

FILES, P. J.

This is an application for a writ of mandate to compel the superior court to vacate its order made under Code of Civil Procedure section 583 dismissing a civil action entitled C. W. Derry, et al., Plaintiffs vs. Golden State Bank, etc. et al., Defendants, No. NCC 1620 B.

The material facts will be stated, referring to the parties by their alignment in the superior court.

August 20, 1963. Plaintiffs commenced the action in the superior court. The case involved the financing of a used car business formerly conducted by plaintiffs. It was alleged that defendants had caused plaintiffs great financial loss through various transactions described in the complaint as breaches of contract, fraud, and other torts.

July 22,1964. The superior court action was at issue.

May 19, 1967. Plaintiffs filed a memorandum to set and a certificate of readiness.

August 24, 1967. The pretrial hearing was continued to November 6, 1967, on which date the pretrial was held and the case was set down for trial on April 1,1968.

March 27, 1968. The court on its own motion reset the trial for August Í3,1968.

August 13, 1968. At 9 :30 a,.m. the case was called in the civil master calendar department. Attorney Costanzo, representing certain defendants, asked for a short continuance upon the ground that he was engaged in another trial. Attorney Wallbert, representing other defendants, moved for a continuance upon the ground that some blanks in the transcript of the deposition of plaintiff Derry, taken August 13, 1965, had not been filled. Counsel advised the court that the case was a complicated one, and that a jury had been waived by all parties. The court said: “We are badly overset every day between now and next Monday; in fact, commencing next Monday we have twenty judges going to a judges' institute. Our total strength is down to fifty judges the last two weeks of this month. In the civil departments we are going to have to maybe take ten or twelve criminal cases a day. How we can get you gentlemen out I don't know. ’ ’

Attorney Wallbert responded: “Tour Honor, I will say this. I would like to examine the deposition when it is completed. If it is indicated that we want further discovery, I will make a motion addressed to the discretion of the Court for dismissal based upon the inherent power of the Court to dismiss. ’'

Derry v. Superior Court

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FILES, P. J.

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