McDonough Power Equipment Co. v. Superior Court

I dissent. I cannot agree with the majority’s conclusion that the three-year post-remittitur provision of subdivision (b) of section 583 of the Code of Civil Procedure applies to cases in which a judgment for the defendant, entered upon an order sustaining a demurrer without leave to amend, has been reversed on appeal.

I believe that in enacting section 583, the Legislature intended to establish consistent limiting standards applicable to all cases iii which there has been a lack of diligent prosecution, and did not intend, as the majority *535 hold, to establish a five-year limitation period for bringing a cause to trial by the plaintiff in the usual case, while establishing a three-year limitation period in those cases, such as the instant case, where there has been judicial error to the prejudice of the plaintiff.

The majority hold that where a demurrer has been erroneously sustained, the plaintiff has less time to proceed to trial than where a demurrer is properly overruled. To reach this anomalous result, the majority rely on a judicial construction of the term “new trial” found in subdivision (b) of section 583 rather than the clear statutory definition of the term found…

Petitioner McDonough Power Equipment Co. seeks a writ of mandate to compel respondent superior court to dismiss a pending action for lack of prosecution pursuant to Code of Civil Procedure 1 section 583, subdivision (b), because it was not brought to trial within three years after the filing of the remittitur on a previous appeal. We have concluded that the writ should issue.

Following is a chronology of the pertinent procedural events: On June 4, 1965, real party in interest Mary Grasso (hereafter plaintiff) commenced against petitioner McDonough Power Equipment Co. (hereafter defendant) the underlying action for damages for personal injuries. On November 10, 1965, the trial court sustained without leave to amend defendant’s demurrer to the complaint on the grounds of the statute of limitations and on December 2, 1965, entered a judgment of dismissal. Plaintiff appealed and, on August 2, 1968, the Court of Appeal reversed the judgment with directions to overrule the demurrer. (Grasso v. McDonough Power Equipment, Inc. (1968) 264 Cal.App.2d 597 [ 70 Cal.Rptr. 458 ].)

On October 7,1968, the remittitur was filed in respondent superior court. *530 On January 17, 1969,…

Olney, Levy, Kaplan, Ormes & Tenner, Jack Tenner, Richard Devirian and Hugh R. Manes for Real Party in Interest.

Robert E. Cartwright, Theodore A. Horn, Marvin E. Lewis, William H. Lally, Joseph W. Cotchett, Herbert Hafif and Leonard Sacks as Amici Curiae on behalf of Real Party in Interest.

OPINION

SULLIVAN, J.

Petitioner McDonough Power Equipment Co. seeks a writ of mandate to compel respondent superior court to dismiss a pending action for lack of prosecution pursuant to Code of Civil Procedure [1] section 583, subdivision (b), because it was not brought to trial within three years after the filing of the remittitur on a previous appeal. We have concluded that the writ should issue.

Following is a chronology of the pertinent procedural events: On June 4, 1965, real party in interest Mary Grasso (hereafter plaintiff) commenced against petitioner McDonough Power Equipment Co. (hereafter defendant) the underlying action for damages for personal injuries. On November 10, 1965, the trial court sustained without leave to amend defendant's demurrer to the complaint on the grounds of the statute of limitations and on December 2, 1965, entered a judgment of dismissal. Plaintiff…