Anderson v. Erwyn

California Court of Appeal Dec 28, 1966 No. 30800Published

Before: Lillie

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Holding. The court held that a stipulation to take a pretrial conference off-calendar to be reset at a mutually convenient time does not constitute a written stipulation extending the five-year statutory period for bringing an action to trial under Code of Civil Procedure section 583.

Issues

Whether correspondence between counsel constituted a written stipulation extending the five-year period for trial under Code of Civil Procedure section 583.
Whether the defendant waived the right to seek dismissal under section 583 by requesting that a pretrial conference be taken off-calendar.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A stipulation that a case be dropped from the calendar to be reset upon notice is not within the statute.”

“no case decided by this court has held that anything short of a written stipulation extending in express terms the time of trial to a date beyond the five-year period, or expressly waiving the right to a dismissal under that section, will suffice”

247 Cal.App.2d 503 (1966) 55 Cal. Rptr. 634 CARL E. ANDERSON, Plaintiff and Appellant,

VICTOR A. ERWYN, Defendant and Respondent.

Docket No. 30800. Court of Appeals of California, Second District, Division One.

December 28, 1966. [504] Robert A. Eaton for Plaintiff and Appellant.

Carl J. Mooslin for Defendant and Respondent.

LILLIE, J.

This is an appeal from an order of dismissal for want of prosecution within the five-year period (§ 583, Code Civ. Proc.). The proceedings leading up to the order began in a prior civil action involving the same parties filed by defendant herein, Victor A. Erwyn, represented therein by Abraham Gottfried, Esq., against plaintiff, Carl E. Anderson, represented by Robert A. Eaton, Esq.

Erwyn v. Anderson, No. 716100, was a suit on a written contract of employment filed January 28, 1959. After several demands made on defendant's counsel (Mr. Eaton) for a responsive pleading and none having been filed, Mr. Gottfried took a default on April 3, 1959, and obtained default judgment against Anderson eight months later, on December 3, 1959.

Thereafter, on July 12, 1960, Anderson filed a complaint in equity to set aside the default judgment entered against him on the ground of fraud. Defendant Erwyn filed his answer on July 20, 1960. Plaintiff did nothing to bring the matter to trial; finally as a result of the efforts of defendant's counsel, Mr. Gottfried, pretrial was noticed for February 15, 1961. However, on February 7, 1961, Mr. Gottfried advised Mr. [505] Eaton that he would be engaged in trial on February 15, 1961; accordingly, on the same day (February 7, 1961) Mr. Eaton addressed the following letter to Mr. Gottfried: "This will confirm our conversation of even date that the Pre-Trial heretofore set in the above entitled matter will be taken off calendar subject to being re-set at a mutually convenient time, by reason of the fact that you are otherwise engaged in trial." (Exh. E attached to Declaration and Points and Authorities in Opposition to Defendant's Motion for Order of Dismissal.)

Anderson v. Erwyn

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LILLIE, J.

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