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Keywords

plaintiffdefendantattorneyappealtrialmotioncivil procedure

plaintiffattorneyappealmotioncivil procedure

Related Cases

Karubian v. Security Pacific Nat. Bank, 152 Cal.App.3d 134, 199 Cal.Rptr. 295

Facts

The complaint was filed on September 24, 1975, and the plaintiffs' counsel filed an 'at-issue memorandum' on December 31, 1976. After a series of substitutions of counsel, the clerk issued notices of eligibility to file a Certificate of Readiness, but these were sent to the initial attorney who failed to forward them. As a result, the case was removed from the 'civil active list' and remained inactive until the plaintiffs attempted to set it for trial shortly before the five-year deadline.

The complaint in this action was filed September 24, 1975. Plaintiffs' then counsel filed an “at-issue memorandum” on December 31, 1976. On February 18, 1977, another law firm was substituted as counsel, which firm itself was, on March 2, 1977, substituted for by yet another attorney.

Issue

Did the trial court abuse its discretion in denying the plaintiffs' motion to specially set the case for trial, given the circumstances surrounding the clerk's failure to notify the plaintiffs of their eligibility to file a Certificate of Readiness?

The question presented by this appeal is the effect of the clerk's failure to notify the plaintiffs of their eligibility to file a Certificate of Readiness.

Rule

The court applied the principles of Code of Civil Procedure section 583(b), which mandates dismissal if a case is not brought to trial within five years, but allows for exceptions where it is impossible, impracticable, or futile for a plaintiff to bring the matter to trial within that period.

Although the language of Code of Civil Procedure section 583(b) is seemingly clear, unambiguous and mandatory, it has been judicially interpreted to provide certain exceptions thereto.

Analysis

The court found that the plaintiffs' failure to act more expeditiously was not due to the clerk's failure to notify them, as they had a responsibility to monitor their case's status. The court noted that once the case was eligible for trial, it was neither impossible nor impracticable for the plaintiffs to take steps to move it forward. The plaintiffs waited until just 40 days before the deadline to act, which the court deemed insufficient.

From the record before us it seems clear that the failure of plaintiffs to move their case more expeditiously was in no way attributable to their failure to receive notice of eligibility to file a Certificate of Readiness, unless one takes the position that the court has a duty generally to remind counsel of critical dates.

Conclusion

The Court of Appeal affirmed the trial court's judgment, concluding that there was no abuse of discretion in denying the motion to specially set the case for trial.

We find no abuse of discretion.

Who won?

Defendants prevailed in the case because the court found that granting the plaintiffs' motion would cause substantial prejudice to them due to delays in evidence accumulation and the case not being at issue.

The court also finds that matter is not at issue. The motion is denied.

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