Youngblood v. Terra

Opinion

REPPY, J. On October 8, 1965, a jury rendered a verdict for defendants in plaintiffs’ personal injury action. On November 10, 1965, the court made and entered an order granting the motion for new trial of plaintiff Thelma Youngblood (hereinafter, plaintiff).

Code of Civil Procedure, section 583, subdivision (b) provides in part as follows: “When ... a new trial [is] granted, [the] action shall be dismissed on motion . . . unless such action is brought to trial within three years after the entry of the order granting a new trial . . . .”

On November 7, 1966, plaintiff filed a memorandum for setting for retrial, the filing allegedly having been delayed because during the interim plaintiff was attempting to get the trial bifurcated, secure permission to amend the pretrial order, and take an additional deposition, the Rules [535]of Court (rule 206) prohibiting the filing of such a memorandum until discovery proceedings had been completed. The court set March 7, 1967, as the time for commencement of the retrial. A week before that date plaintiff notified her counsel that her doctor would not permit her to attend trial. On March 7, 1967, a motion for continuance by plaintiff’s counsel, which defense counsel did not oppose, was denied. The court instead, ordered the case off calendar with provision for reinstatement by presentation of “a new memorandum to set . . . within 30 days after May 26, 1967.”1

On December 7, 1967, an “At-issue Memorandum and Certificate of Readiness”2 was filed. In his brief, plaintiff’s counsel erroneously refers to this as a “Memorandum to Set and Certificate of Readiness” and asserts that his intervening failure to file such a document was not discovered until the early part of December 1967. The at-issue memorandum advised “Setting conference required.” It in no way indicated to the calendar department thait only ten months of the three-year period remained or requested a setting within that time. Endorsed on the court’s portion of the form is the notation, “Phoned Plff. Atty. Ruffner—Need motion to reset. 12-17 EJ.” Apparently, after December 7, 1967, the case was awaiting the filing of such a motion. Between then and the date next mentioned, plaintiff did not file a motion to set. Consistent with his erroneous concept as to the nature of the document filed December 7, plaintiff, in his brief, thkes the position that after that date “the matter had been . . . waiting for the assignment of a trial date by the Court.” Even if it be considered that plaintiff’s attorney in good faith, but inadvertently, overlooked the telephone call from the clerk and believed he had filed a motion to set, he made no attempt to have the case specially set, not even as expiration of the three-year period drew close at hand. On December 5, 1968, 25 days after the expiration of the three-year period specified in section 583, subdivision (b), defendants noticed a motion to dismiss under that section, specifying the hearing date as December 23. The opposing declaration of plaintiff’s attorney says that on December 18 he filed a motion to set which was to be heard on December 23. On that date both motions were continued to January 6, 1969, pprsuant to stipulation. On January 6, 1969, the court ordered the motion to set off calendar and granted the