Schmitt v. Superior Court

Opinion

THE COURT.* In this proceeding, petitioner David D. Schmitt, Jr., challenges the denial of his motion to specially set his dental malpractice action against real party Singhal for trial before expiration of the five-year period set forth in Code of Civil Procedure section 583.310.[1] Under the facts of this case, we conclude the denial of petitioner’s motion was an abuse of discretion and will grant the relief requested.

Facts

On November 2, 1984, a complaint was filed on petitioner’s behalf by attorney David Berk. Real party answered the complaint, petitioner filed an [455]at-issue memorandum with the respondent court in October 1985, and the respondent ordered the matter submitted to arbitration at a status conference held January 16, 1986. (§ 1141.10 et seq.) On the same date petitioner filed with the respondent a substitution of attorney, replacing Berk with his present counsel, Patricia Swanson. Entries were made by the clerk in the register of actions noting the substitution, striking Berk’s name as counsel, and replacing it with Swanson’s name. Subsequently, petitioner twice amended his complaint with leave of court, and in October 1986 real party Singhal answered the third amended complaint. Extensive discovery was conducted by the parties during the period from January 1985 to November 1986. On November 18, 1986, arbitration was held in part, but the arbitrator found the case not a proper one for arbitration. Swanson promptly wrote to the respondent requesting the case be placed on the civil active list, and on February 24, 1987, the respondent issued an order returning the case to the trial setting clerk.

After a year had elapsed without further notification from the respondent, on November 19, 1987, Swanson wrote to the clerk inquiring as to the status of the case. Her letter was returned with the clerk’s handwritten note reading, “Your case is on the civil active list, will not be set for a trial setting conference for about another 10 months.” On December 21, 1987, Swanson filed with the respondent a notice of change of address, and the appropriate entry was made by the clerk in the register of actions. In July 1988 Swanson again wrote to the clerk inquiring as to the status of the case. This time there was no response. In January 1989 Swanson sent the clerk yet another letter requesting a status update, mentioning her earlier communications and noting the “case will be five years old in November, 1989; it is imperative that we receive a trial date in the near future.” Again, there was no response.