Hartman v. Gordon H. Ball, Inc.

SHOEMAKER, P. J. Plaintiff appeals from a judgment of dismissal and from an order granting defendant’s motion for mistrial. The latter order is nonappealable but may be reviewed on appeal from the judgment. (Reimer v. Firpo (1949) 94 Cal.App.2d 798, 801-802 [212 P.2d 23].)

The complaint to recover damages for personal injuries allegedly sustained on October 8, 1960, as a result of the [780]negligence of defendant Gordon H. Ball, Inc., was filed on October 6,1961.

Defendant was served on September 29, 1964, and filed its .answer on October 27, 1964. On September 7, 1966, plaintiff filed a memorandum to set the case for trial and a motion to advance the pretrial conference and trial date on the ground that the five-year period within which the action was required to be brought to trial under Code of Civil Procedure, section 583, was about to expire. On September 12, 1966, the court scheduled the pretrial conference for September 16, 1966, and the trial for September 20, 1966. However, defendant’s counsel subsequently advised the court that he would be engaged in another trial on the date set and filed a stipulation extending the five-year period within which the action was required to be brought to trial from October 6, 1966 to November 9, 1966.

Trial commenced on November 9, 1966. On the third day of trial, November 15, 1966, the court granted defendant’s motion for a mistrial on the ground of misconduct on the part of plaintiff’s counsel, and discharged the jury.

On December 30, 1966, defendant filed a motion to dismiss the action, asserting that (1) dismissal was mandatory, under Code of Civil Procedure, section 583, because the action had not been brought to trial within the five-year period as extended by stipulation; (2) it was not in the interests of justice to allow plaintiff a second trial when it was the misconduct of his own counsel which had caused the first trial to end in a mistrial more than five years after the action was commenced; and (3) dismissal of the action was appropriate as an exercise of the court’s discretion.

By order.- of January 20, 1967, the court granted the motion to dismiss on the grounds that (1) plaintiff had failed to bring the action to trial within the mandatory five-year period specified in Code of Civil Procedure, section 583, and (2) plaintiff had not prosecuted the action with reasonable diligence. In connection with the latter ground, the court’s written comment accompanying the order of dismissal indicates that it took into consideration the fact that plaintiff had delayed almost three years between filing the action and serving defendant; that nearly "two more years had elapsed before -plaintiff, without discovery or--other preliminaries, had moved to advance the ease for trial'without offering any excuse for the prior delay; and that on the third day of trial, a mistrial had been declared because plaintiff had “ sought to adduce