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Courtroom of Enchantment, Second District, Division 5, California.

Tommy WHITE and Cholette White, Plaintiffs and Appellants, v. MORTGAGE FINANCE CORPORATION, a California company, et al., Defendants and Respondents.

Civ. 66607.

Determined: Might 06, 1983

Rose Mary E. Harmer, Los Angeles, for plaintiffs and appellants. Alfred Fadel, David M. Rosman, Berger, Kahn, Shafton & Moss, Los Angeles, for defendants and respondents.

Plaintiffs and appellants Tommy White and Cholette White (plaintiffs) had their lawsuit towards Mortgage Finance Company (Mortgage Finance), Hillcrest Builders (Hillcrest), Investor’s Nationwide Safety Firm (Nationwide Safety), William V. Harrison (Harrison), and Jonova Knickerbocker (Knickerbocker) (collectively respondents), dismissed by the trial court docket for failure to diligently prosecute the motion (Code Civ.Proc., § 583(a)).1  This attraction adopted.

Plaintiffs filed a grievance to quiet title towards respondents on July 16, 1976.2  On July 2, 1981, on the day set for trial and 14 days earlier than the five-year interval expired (Code Civ.Proc., § 583(b)), the trial court docket granted respondents’ movement to dismiss the grievance.   Plaintiffs claimed the court docket erred as a result of they did diligently pursue the motion and that any delay was brought on by contingencies outdoors of their management.   The details are as follows:

On October 7, 1976, plaintiffs filed their first amended grievance (a demurrer had been sustained with go away to amend to the unique motion).   By January 31, 1977, all respondents besides Hillcrest had answered.   Shortly thereafter, plaintiffs had been unsuccessful in acquiring a restraining order in an illegal detainer motion filed towards them by Harrison and Knickerbocker.

On Might 9, 1977, Harrison and Knickerbocker filed an At-Situation Memorandum.   On August 10, 1977, plaintiffs filed their At-Situation Memorandum.

In July 1977, plaintiffs served respondent Hillcrest and a solution was filed by August 3, 1977.

On June 29, 1979, plaintiffs’ legal professional died.   In late September plaintiffs had been in a position to get hold of their file from the workplace of their deceased legal professional and on October 2, 1979, they employed their second legal professional.

On April 15, 1981, plaintiffs filed a Movement to Advance Case for Trial.   The court docket granted the movement and set the trial for Might 18, 1981.   Nevertheless, Harrison and Knickerbocker had not been served with the movement they usually filed a movement to strike the Might 18th trial date.   The court docket granted the movement and struck the at-issue memorandum.

On June 3, 1981, plaintiffs filed a corrected at-issue memorandum and one other Movement to Advance the Case for Trial.   On June 8, 1981, respondents Harrison and Knickerbocker filed their motions to dismiss plaintiffs’ motion for lack of diligent prosecution, which motions set forth intimately why they had been prejudiced by the lengthy delay.   On June 10, 1981, the date set for listening to plaintiffs’ Movement to Advance Case for Trial all events had been current.   The remaining respondents who had not filed 583(a) motions indicated to the court docket that they supposed to take action.   The court docket gave them till June 23, 1981 to take action.   Plaintiffs’ Movement to Advance the Case for Trial was continued and was lastly heard on June 19, 1981.   At the moment the court docket set the trial for July 2, 1981, with out prejudice to the respondents as a result of the listening to on their 583(a) motions was set for June 23, 1981.   On that date, the court docket deferred its ruling on the motions, all of which had been well timed filed and continued the listening to to the date of trial.   On the day of trial, the court docket granted all of respondents’ motions to dismiss.

Another background details are enlightening.   Plaintiffs declare they introduced the quiet title motion to avoid wasting their residence from being seized by cause of the fraud, inferior workmanship, and different antics of the varied respondents.   Briefly, in 1973, they’d employed Hillcrest to color the skin of their residence for $3,010.80.   At the moment they admitted signing a lien contract and a second belief deed on their residence to safe the fee for the work.   The portray was accomplished and plaintiffs commenced funds of $50.18 a month;  nevertheless, after 5 months they claimed they stopped funds as a result of the paint began to crack and peel.   Plaintiffs tried to contact Hillcrest, however it had moved, so that they contacted Nationwide Safety, who had been assigned the contract and deed of belief, and had been instructed that in the event that they continued funds on the contract there could be no foreclosures on the house.   Plaintiffs commenced funds as requested, however a foreclosures sale, a lot to their shock, was instigated and the property was offered to respondents Harrison and Knickerbocker.   So as to not be ousted from their residence, they subsequently signed a rental settlement with the brand new house owners.

Plaintiffs sought a preliminary injunction to stop Harrison and Knickerbocker from continuing with an illegal detainer motion till their quiet title motion was litigated.

The restraining order was denied due to the unopposed details that had been disclosed by the declarations of the respondents.   The true story is that plaintiffs had additionally defaulted on the primary deed of belief on their residence.   When Harrison and Knickerbocker bought the house beneath the foreclosures sale, they needed to pay $4,245.39 to Nationwide Safety to retire the second belief deed and to pay the default funds due beneath the primary belief deed.   In addition they assumed the steadiness due on the primary belief deed, which was $19,707.20.   On the time of the listening to on the preliminary injunction, plaintiffs didn’t deny that they’d defaulted on the primary belief deed, had stopped funds to Nationwide Safety after promising to proceed them, and stopped funds beneath the rental settlement.

 We now return to plaintiffs’ principal arguments on attraction, specifically, that it was the dying of their legal professional and their incapacity to effectuate early service on Hillcrest Builders that prompted the litigation’s delay.   The details disclose that the preliminary injunction was denied on March 22, 1977.   Apart from an At-Situation Memorandum filed by plaintiffs on August 10, 1977, nothing additional was completed to maneuver the case to trial till Might 14, 1980, when a brand new At-Situation Memorandum was filed.   Plaintiffs’ first legal professional died on June 29, 1979, roughly two years and three months after the denial of the preliminary injunction.   Plaintiffs’ second legal professional was substituted in on October 2, 1979, however apart from a filed Might 14, 1981, At-Situation Memorandum nothing additional was completed till April 15, 1981 when the movement was made to advance the case for trial.   The interval during which no motion was taken by plaintiffs, besides to file the 2 at-issue memoranda was from March 22, 1977 to April 15, 1981, a interval of 4 years and one month.

The one interval throughout that point which would appear to excuse inactivity was from June 29, 1979 when their first legal professional died and October 2 of that 12 months after they substituted of their second legal professional.   No rationalization is given as to why their first legal professional did nothing to advance the case to trial or carry out discovery for 2 years and three months or why their second legal professional was likewise inactive till Might 1, 1981, a couple of and a half years after being retained.

The details above exhibit that plaintiffs had been evicted from their residence not simply due to the actions and antics of the varied respondents, however primarily as a result of they’d defaulted on their first belief deed obligation in addition to a rental settlement with Harrison and Knickerbocker.   The latter two respondents had grow to be house owners of the house and paid off the default of the primary belief deed and assumed the mortgage funds.   Thus, the rental settlement that plaintiffs signed enabled Harrison and Knickerbocker to make funds on the primary belief deed obligation which plaintiffs had been not honoring.   Whereas these details should not immediately materials to the difficulty earlier than us, they’re enlightening.   The quiet title motion didn’t, and couldn’t beneath the details, save plaintiffs’ residence.   The property was misplaced to them due to their default on the primary belief deed.

Based on the document, the dying of their legal professional at most prompted a 5 to 6 month hiatus which was fairly negligible when considered with the inactivity that prolonged over a 4 and one-half 12 months interval.   Moreover, the delay of service on Hillcrest Builders was insignificant as a result of nearly 4 years remained for diligently prosecuting the motion after this respondent answered the grievance.

 Code of Civil Process part 583(a) makes it discretionary for the trial court docket to dismiss an motion for need of prosecution if it isn’t delivered to trial inside two years after being filed.  (Home v. State of California, 119 Cal.App.3d 861, 880, 174 Cal.Rptr. 279.)   Such discretion shouldn’t be disturbed on attraction except it seems that there was a miscarriage of justice and discretion is abused every time the court docket exceeds the bounds of cause contemplating all the circumstances then earlier than the court docket.  (Innovest Inc. v. Bruckner, 122 Cal.App.3d 594, 598, 176 Cal.Rptr. 90;  Corlett v. Gordon, 106 Cal.App.3d 1005, 1012, 165 Cal.Rptr. 524.)   Delay attributable to illness or dying of counsel or of the events shouldn’t be essentially excusable.   Every case have to be determined by itself peculiar options and details.  (Beswick v. Palo Verde Hospital Affiliation, 188 Cal.App.2nd 254, 261, 10 Cal.Rptr. 314.)

 Along with the details cited above regarding lack of diligence to prosecute the case, the respondents’ 583(a) motions contained detailed explanation why they had been prejudiced by plaintiffs’ delay.   The document right here doesn’t reveal that plaintiffs’ failure to carry their case to trial was brought on by their counsel’s dying or delay in service on Hillcrest.   The trial court docket’s conclusion that the delay was inexcusable is justified by the details and we can not say as a matter of legislation that the court docket abused its discretion.

 One different argument by plaintiffs requires a response.   It’s their rivalry that after the court docket had set the case for trial by granting their movement it was precluded from granting respondents’ 583(a) motions on the date of trial.   This argument fails as a result of it’s clear that the court docket reserved jurisdiction to contemplate respondents’ motions when it set a listening to on the difficulty for June 23, 1981.   When the court docket granted plaintiffs’ movement for an early setting and set the case for trial on July 2, 1981, it particularly did so with out prejudice due to the June 23 listening to.   Merely persevering with that listening to to this point of trial didn’t preclude the court docket from contemplating the motions on that day.   The July 2, 1981 trial date was contingent on the court docket’s dedication of the 583(a) motions.

The judgments of dismissal are affirmed.


1.   Part 583(a) offers:  “The court docket, in its discretion, on movement of a celebration or by itself movement, could dismiss an motion for need of prosecution pursuant to this subdivision if it isn’t delivered to trial inside two years after it was filed.   The process for acquiring such dismissal shall be in accordance with guidelines adopted by the Judicial Council.”

2.   Plaintiffs’ quiet title motion additionally sought declaratory aid and damages for fraud.

 HASTINGS, Affiliate Justice.

STEPHENS, Performing P.J., and ASHBY, J., concur.

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