Sagi Plumbing v. Chartered Construction Corp.

I respectfully dissent from the opinion of my colleagues that plaintiffs suit was properly dismissed for failure to bring the action to trial within five years. (Code Civ. Proc., § 583.310; all further statutory citations are to that code.)

The procedural history of the case is fully described in the majority opinion. For purposes of this discussion, it is sufficient to summarize that the plaintiff was a subcontractor to respondent, the general contractor, on three separate projects, and sued respondent for breach of contract on each of them. His suit was in three causes of action, one for each project. The litigation over one of them, the Hollywood Bowl project, was complicated by the existence of several other claims by other parties. All of the Hollywood Bowl lawsuits against respondent were consolidated for trial. Appellant’s action against respondent was bifurcated, with the cause of action based on the Hollywood Bowl project to be tried first, together with the other suits involving that project. The other two causes of action, now bifurcated from the first, were to be tried later. After trial was completed in the Hollywood Bowl litigation, appellant agreed to sever his…

INTRODUCTION

Appellant Sagi Plumbing is a plumbing contractor. Respondent Chartered Construction Corporation is a general contractor. Respondent hired appellant *445 to work as a subcontractor on several projects. Appellant filed suit against respondent for breach of contract based on respondent’s failure to pay on three unrelated projects. The parties agreed to bifurcate the action and to try first the cause of action arising out of one project. After that trial was completed, appellant did nothing to bring the other causes of action to trial other than to file a notice of trial and attend a status conference. The trial court granted respondent’s motion to dismiss the two remaining causes of action based upon appellant’s failure to bring them to trial within five years. (Code Civ. Proc., § 583.310.)

On this appeal, the issue is whether there was a partial trial of the lawsuit for purposes of the five-year statute because trial had been conducted on the one unrelated cause of action. We conclude that the first trial did not constitute a trial for the purposes of the remaining causes of action because each concerned a different and unrelated construction project. We…

Appellant Sagi Plumbing is a plumbing contractor. Respondent Chartered Construction Corporation is a general contractor. Respondent hired appellant to work as a subcontractor on several projects. Appellant filed suit against respondent for breach of contract based on respondent's failure to pay on three unrelated projects. The parties agreed to bifurcate the action and to try first the cause of action arising out of one project. After that trial was completed, appellant did nothing to bring the other causes of action to trial other than to file a notice of trial and attend a status conference. The trial court granted respondent's motion to dismiss the two remaining causes of action based upon appellant's failure to bring them to trial within five years. (Code Civ. Proc., § 583.310.) [1]

On this appeal, the issue is whether there was a partial trial of the lawsuit for purposes of the five-year statute because trial had been conducted on the one unrelated cause of action. We conclude that the first trial did not constitute a trial for the purposes of the remaining causes of action because each concerned a different and unrelated construction project. We also find that…