On October 3, 1979, Gerardo Jiminez Hurtado sued for injunctive relief and damages based on defendants' fraud in inducing him to enter into a secured loan transaction. The action remained essentially
The abundant precedent generated by section 583(a) is indicative of the competing policy considerations inherent in the application of the statute. Those cases which approve the dismissal of an action stress the benefits to be gained by the timely resolution of litigation and the breadth of the court's discretion. (See, e.g., Innovest, Inc. v. Bruckner (1981) 122 Cal.App.3d 594, 599 [176 Cal.Rptr. 90]; Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1016 [165 Cal.Rptr. 524].) Cases holding to the contrary emphasize the need to have disputes resolved on their merits and the limitation on the court's discretionary power. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [86 Cal.Rptr. 65, 468 P.2d 193]; United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 232-233 [150 Cal.Rptr. 761]; City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 563 [133 Cal.Rptr. 212].)
In addition to the different policy considerations which impact appellate decisions, apparent conflicting authorities can also be reconciled by the different procedural postures of cases on appeal. Those cases affirming the denial of a dismissal motion tend to approve the court's exercise of discretion. (E.g., Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Cases disapproving a dismissal point out the discretion of the trial court is no greater than that of the appellate court. (E.g., United Farm Workers, supra, 87 Cal. App.3d at p. 233.)
Thus in practical terms, the trial court caught in the policy squeeze between two separate lines of cases is in the difficult position of determining, perhaps even guessing, which precedent will be applied on appeal. The chief progenitor of this judicial guessing game is the familiar "abuse of discretion" standard, which has been repeatedly held to control appellate review of trial court actions under section 583(a). (See, e.g., Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 558 [194 Cal.Rptr. 773, 669 P.2d 9]; Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 416 [134 Cal.Rptr. 402,
It is our concern with the implications of these observations which has motivated us to write the discussion which follows. Appellate decisions should furnish firm, clearly defined, objective guidelines for trial court application. When it appears we are doing otherwise, as Professor Rosenberg indicates has happened under the "abuse of discretion" rubric, an analytic check on ourselves and an explanation to the trial court is in order.
In attempting to give substantive meaning to the abuse of discretion standard, focusing on the term "abuse" is of little help because it is a relativistic term; it depends for its meaning on an understanding of the parameters of the trial court's "discretion" in any given case. Without knowing those parameters, there is no rational way to determine whether the parameters were exceeded or, in other words, whether the court's discretion was abused.
Focusing instead on the concept of "discretion," that term in one sense refers generally to the power to decide. But every court — both trial and appellate — has "discretion" in that sense. Whether the source of the power to decide is constitutional or statutory, the essence of the judicial function is decisionmaking. "Discretion" in the sense of the "abuse of discretion" standard refers instead to the relationship between the trial and appellate decisionmaking processes and, more particularly, to the amount of deference which appellate courts accord to trial court determinations. Discretion in this sense — that is, trial court discretion — is not a sacrosanct concept. Harsh as it may sound, the nature of the relationship between superior and inferior courts dictates that trial courts have discretion only to the extent appellate courts perceive a reason to defer. The breadth of trial court discretion is a function of the degree to which appellate courts exercise deference.
Understanding the concept of discretion, however, does little to aid application of the abuse of discretion standard to any particular legal issue.
It is perhaps unnecessary to add that as the nature of these cases vary, so too does the degree of discretion which can be exercised by the trial court without "abuse." As both Professor Rosenberg and Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, have recognized, the chief vice of the "abuse of discretion" standard lies in its propensity to obscure the basis for an appellate court's ruling. Appellate courts rarely articulate the degree of deference they are according to a trial court ruling and even less frequently analyze the reasons for according more or less deference. (See Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above (1971) 22 Syracuse L.Rev. 635, 667 (hereafter cited as Judicial Discretion); Friendly, Indiscretion About Discretion (1982) 31 Emory L.J. 747, 784.) Professor Rosenberg explains, "To tame the concept [of discretion] requires no less than to force ourselves to say why it is accorded or withheld, and to say so in a manner that provides assurance for today's case and some guidance for tomorrow's." (Review of Discretion, op. cit. supra, 79 F.R.D. at p. 185.)
Our judicial system which provides for appellate review of trial court rulings presumes generally that where a trial and appellate court disagree, the appellate court's view will prevail. Such a systemic presumption clearly "does not reflect a view that an appellate judge is inherently more able than a trial judge." (Friendly, op. cit. supra, 31 Emory L.J. at p. 757.) Rather, there are structural reasons for preferring appellate court decisions as a general rule. Counsel generally have more time for thoughtful reflection on legal issues when a case is on appeal rather than in the more pressured confines of the trial court. Not only are counsel in a position to present
Furthermore, as with any organizational chart, the structure of the judicial system resembles a pyramid, with appellate courts and ultimately the Supreme Court occupying the top of that pyramid. The primacy of appellate court decisions serves to foster consistency and proportion in the interpretation of law and the articulation of judicial policy which would be impossible if the decisions of individual trial courts were insulated from meaningful review. As Cardozo explained, expressing the raison d'etre for the common law precedential system, "It will not do to decide the same question one way between one set of litigants and the opposite way between another." (Cardozo, The Nature of the Judicial Process (1921) p. 33; see also Friendly, op. cit. supra, 31 Emory L.J. at p. 758.)
There are, of course, numerous instances in which we properly should prefer a trial court's decision on an issue to that of an appellate court. It is precisely in those circumstances where appellate court deference, and hence trial court discretion, is appropriate and desirable. What are such circumstances? The primary example is the determination of disputed facts. Where a factual determination is based on live witness testimony or review of physical evidence, there is every reason to believe a trial court's resolution will be more accurate than that of an appellate court which received no firsthand exposure to the evidence. Thus, the substantial evidence standard of review appropriately accords considerable deference to a trial court's factual findings.
The deference accorded a trial court's factual findings is only one manifestation of the principle that greater deference is warranted whenever the trial judge's "nether position" in the judicial pyramid makes him a presumptively more capable decisionmaker (Judicial Discretion, op. cit. supra, 22 Syracuse L.Rev. at p. 663) because of "his observation of the witnesses, [and] his superior opportunity to get `the feel of the case.'" (Noonan v.
"In short," as Judge Friendly has summarized, "the `abuse of discretion' standard does not give nearly so complete an immunity bath to the trial court's rulings as counsel for appellees would have reviewing courts believe."
A motion to dismiss for lack of prosecution is generally handled as a law-and-motion matter. Whatever factual material is necessary for resolution of the motion is normally presented to the court by way of affidavits or declarations of the parties and their attorneys. California Rules of Court, rule 373(e) lists a variety of factors to be considered in resolving a section 583(a) motion.
Nor is significant deference to the trial court necessary here because we deal with a nascent issue with which appellate courts have had insufficient
On the other side of the ledger, there is a great need for consistency and unformity in interpreting section 583(a). The statute permits perhaps the most serious sanction which can be imposed on a plaintiff: dismissal of his cause of action. It should offend our sense of basic fairness to think that one plaintiff would have his case dismissed where on exactly the same set of facts, another plaintiff before a different trial judge would be allowed to proceed to trial.
It remains to be determined what is the appropriate legal standard for a court — trial or appellate — to apply in ruling on or reviewing a motion to dismiss for failure to bring a case to trial within two years. In this regard, the uncontested factual record reveals Hurtado was hardly diligent in pursuing discovery or other pretrial proceedings. A deposition of one of the defendants began by Hurtado's counsel on November 17, 1980, was continued without being completed and was never resumed. Following that, the
The record also reveals, however, that the dispute at issue in this lawsuit is interrelated with a series of transactions between Hurtado and defendant Statewide Home Loan Company involving up to seven parcels of real property. During the latter portion of 1981, the parties were apparently discussing certain balloon payments which were becoming due on promissory notes involving some of the other properties. In early 1982, Hurtado's attorney's caseload increased by approximately 100 cases due to the departure of an associate in his office. It is a fair inference that Hurtado's case was one which, in the press of business, fell through the cracks. Even the association of new counsel in January of 1983 did nothing to resurrect it from its involuntary tomb. When defendants filed their motion to dismiss in September, Hurtado obtained new counsel who soon filed an at-issue memorandum.
Some other courts, while acknowledging that prejudice to the defendant in preparing his defense is clearly a principal object of the statute, also suggest an additional rationale: that of expediting the administration of justice for the benefit of other litigants and the public in general. (See, e.g., Lopez v. Larson (1979) 91 Cal.App.3d 383, 400 [153 Cal.Rptr. 912]; Innovest, Inc. v. Bruckner, supra, 122 Cal. App.3d at p. 599.) Commenting
We certainly agree with the proposition that court backlog and delay is a pressing problem for the California judicial system. Judicial resources to deal with the burgeoning caseload in our civil courts are manifestly scarce. But we are unable to agree that section 583 was designed to deal with this problem. In the typical discretionary dismissal case under section 583, the plaintiff has done nothing for a significant period of time. Almost by definition, such a plaintiff has not been consuming scarce judicial resources: he has not been filing papers; he has not been calendaring hearings on motions. Were the Legislature to enact a statute requiring the dismissal of cases in which plaintiffs brought frivolous motions, such a statute would arguably find support in the "expedited administration of justice" rationale. Such a rationale, however, cannot reasonably be said to support section 583(a).
We are thus left with "prejudice to the defendant" as the major rationale underlying the two-year dismissal statute. Consistent with this observation, a number of courts have recently begun to focus on prejudice as the critical element in section 583(a) cases. In City of Los Angeles v. Gleneagle Dev. Co., supra, 62 Cal.App.3d 543, the court reviewed earlier cases which invoked a "presumption of prejudice" to the defendant where a plaintiff unreasonably delayed in prosecuting an action. Considering the severity of the dismissal sanction, the Gleneagle court found it "harsh to cut off a plaintiff's remedy to an apparently meritorious cause of action based merely on a presumption of prejudice to defendants, without more." (Id., at p. 563.) Noting that the defendant had alleged no actual prejudice, the court reversed the dismissal order, concluding, "... in the absence of prejudice to defendants, attributable to unreasonable delays by plaintiff, the probability of a miscarriage of justice is greater when a trial on the merits is denied than it is where plaintiff is permitted to proceed." (Ibid.)
In United Farm Workers, supra, 87 Cal.App.3d 225, 236, the court relied on Gleneagle in rejecting a claim of presumed prejudice. Summarizing the law on the subject, the court held: "[I]f there is any basis upon which the action can be sustained and it appears that no injustice would result, a motion to dismiss for failure to bring to trial within two years should be denied." (Id., at p. 232.) Several courts have recently followed and applied Gleneagle and United Farm Workers in focusing on the issue of actual prejudice to the defendant. (Visco v. Abatti (1983) 144 Cal.App.3d 904, 908 [192 Cal.Rptr. 833]; Tannatt v. Joblin, supra, 130 Cal. App.3d at p. 1069.)
Here, while we are not convinced Hurtado's attorneys prosecuted his case with all reasonable diligence, he did respond to defendant's section 583(a) motion by making a good faith showing tending to explain the reasons for the delay. More importantly, defendants make no claim of actual prejudice other than having to face continuing but unresolved allegations of fraud. As we have noted, however, "prejudice" in this context refers to constraints on a defendant's ability to defend against the allegations of the lawsuit. (See ante, pp. 1028-1029.) Defendants do not allege that their defense of this lawsuit has been prejudiced in any way by Hurtado's delay.
Our conclusion here that a showing of some prejudice is required is supported by several independent policy considerations. Not the least of these is the fact that an involuntary dismissal for delay results in the attorney's sins being visited upon the client in a most Draconian manner: the client forfeits his cause of action. As the Supreme Court recognized in Weeks v. Roberts, supra, 68 Cal.2d at pages 806-807, "The harshness upon plaintiffs who are seldom personally responsible for delays in our system of representative litigation is manifest."
Even assuming we were dealing with actual client negligence rather than attorney negligence, another type of disproportionality is present. Under
We note finally that effective January 1 of this year, subdivision (a) of section 583 has been recodified by the Legislature as part of a general reorganization of the statutes dealing with dismissals for delay in prosecution. (§ 583.410 et seq.; see generally § 583.110 et seq.) Significantly, the wording of the new statutes indicates a legislative intent to restrict the circumstances under which plaintiffs can be deprived of their day in court. The general time limit after which a court has discretion to dismiss is increased from two to three years. (§ 583.410, subd. (a)(2)(A).) The previously declared judicial policy favoring trial on the merits has now become a statement of legislatively declared state policy: "[T]he policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action...." (§ 583.130.) The courts are further directed to apply this policy "in construing the provisions of this chapter." (Ibid.)
While this recent recodification of the dismissal statutes is not directly applicable to the present case, it demonstrates that our decision to restrict discretionary dismissals to situations in which the defendant can show some prejudice is supported not only by rational judicial policy but also by recently declared legislative policy as well. As the late Justice Tobriner eloquently explained in Vecki v. Sorensen (1959) 171 Cal.App.2d 390, 393 [340 P.2d 1020]: "[C]ourts exist primarily to afford a forum for the settlement of litigable matters between disputing parties.... To deny the forum upon the ground that one or the other party has sacrificed it because the procedure has itself been too slow does not appeal to a mature sense of justice. Only the most compelling reasons would support a surrender of this necessary and valued right of resolution for any such cause." We believe a case in which the defendant cannot demonstrate prejudice to be manifestly
Brown (Gerald), P.J., and Work, J., concurred.
Respondents' petition for review by the Supreme Court was denied August 29, 1985. Lucas, J., was of the opinion that the petition should be granted.
At the time defendants' motion was heard, section 583, subdivision (a) provided in relevant part: "The court, in its discretion, on motion of a party or on its own motion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed...."
Our later references to subdivision (a) of section 583 will generally omit repetition of the word "subdivision."