St. Louis-San Francisco Ry. v. Superior Court of L.A. Cty.

As to the substantive aspects of a case, the law of the place where the cause of action arose must be applied Marquis v. St. Louis etc. Ry. Co., 234 Cal.App.2d 335 , 341 [ 44 Cal.Rptr. 367 ]). However, procedural matters are determined by the law of the forum (Marquis v. St. Louis etc. Ry. Co., supra, 234 Cal.App.2d 335 , 341; 11 Cal.Jur. 2d 184; Rest., Conflict of Laws, § 585; see Biewend, v. Biewend, 17 Cal.2d 108 ,114 [ 109 P.2d 701 , 132 A.L.R. 1264 ]).

Whether a particular question is one of substance or procedure is determined by the law of the forum (McMillen v. Douglas Aircraft Co., 90 F.Supp. 670 ; Rest., Conflict of Laws, § 584; 11 Cal.Jur.2d 184).

The five-year provisions of section 583 have been held to be merely procedural in two eases which did not involve a conflict of law problem (Rosefield Packing Co. v. Superior Court, 4 Cal.2d 120 , 122 [ 47 P.2d 716 ]; Estate of Thatcher, 120 Cal.App.2d 811 , 814 [ 262 P.2d 337 ]). In Rosefield Packing Co. v. Superior Court, supra, the Supreme Court held that a statute such as section 583 shortening, extending, or limiting the time within which a matter must be brought to trial is procedural and therefore can have a retroactive application.

Since the three-year provisions of 583 also concern a limitation of the time within which an action must be tried, that portion of section 583 which applies to a new trial after a reversal on appeal is also procedural in nature.

The plaintiffs suggest that the choice of law rule enunciated in Grant v. McAuliffe, 41 Cal.2d 859 [ 264 P.2d 944 , 42 A.L.R.2d 1162 ] requires that this court should hold that the law of Arkansas should be followed even though we conclude that section 583 is procedural. In Grant v. McAuliffe the Supreme Court determined that for1 purposes of conflicts of law the question of the survival of a cause of action after the death of the tortfeasor should be determined by California law and not Arizona law, the state where the cause of action arose, although survival statutes had been held to be substantive in nature in Cort v. Steen, 36 Cal.2d 437 , 442 [ 224 P.2d 723 ]. The plaintiffs refer us to the following language from Grant v. McAuliffe, supra, as supportive of their position: “The problem in the present proceeding, however, is not whether the survival statutes apply retroactively, but whether they are substantive or procedural for purposes of conflict of laws.'1 “Substance” and “procedure” . . . are not legal concepts of invariable content’ [citations], and a statute or

other rule of law will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.” (Grant v. McAuliffe, 41 Cal.2d 859 , 865 [ 264 P.2d 944 , 42 A.L.R.2d 1162 ].) Later California decisions have reflected the present view of the California Supreme Court that this state will no longer apply the lex loci delicti theory in solving conflict of laws problems (see Reich v. Purcell, 67 Cal.2d 551 [ 63 Cal.Rptr. 31 , 432 P.2d 727 ]; Travelers Ins. Co. v. Workmen’s Comp. App. Bd., 68 Cal.2d 7 [ 64 Cal.Rptr. 440 , 434 P.2d 992 ]) but will apply the substantive law deemed most appropriate in light of the significant interest in the particular case. However, if the matter is purely procedural the law of the forum must be applied since ‘‘the fonum does not adopt as its own the procedural law of the place where the tortious acts occur” (Grant v. McAuliffe, supra, 41 Cal.2d 859 , 862). Since we have determined that section 583 is purely procedural it is applicable to the matter before us.

Was There Compliance With Section 583?

The remittitur was filed on July 12, 1965. The motion to dismiss was filed on March 12, 1969, three years and eight months later. No showing was made by way of affidavit, declaration, or testimony of any fact which would show excusable delay or what efforts, if any, were made by the real parties in interest to bring this matter to trial within three years. The burden of showing good cause for delay is upon the plaintiff (Breckenridge v. Mason, 256 Cal.App.2d 121 , 127 [ 64 Cal.Rptr. 201 ]). If the plaintiff does not meet this burden, it is an abuse of discretion for the trial judge to refuse to grant the motion to dismiss (Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501 [ 71 Cal.Rptr. 344 ] ; City of Los Angeles v. Superior Court, 271 Cal.App.2d 292 [ 76 Cal.Rptr. 256 ] ; Market-Front Co. v. Superior Court, 271 Cal.App.2d 505 [ 76 Cal.Rptr. 526 ]; Paul W. Speer, Inc. v. Superior Court, 272 Cal.App.2d 32 [ 77 Cal.Rptr. 152 ]).

In order to demonstrate excusable delay to overcome a motion to dismiss filed pursuant to section 583 it is not necessary to file an affidavit or declaration. Plaintiffs may rely upon the court’s record for this purpose (see City of Los Angeles v. Superior Court, supra, 271 Cal.App.2d 292 , 295). In the instant ease the record shows that the plaintiffs below filed their At Issue Memorandum and Certificate of

Readiness eight months prior to the expiration of the three-year limitation. However, there is nothing in the record nor was any evidence presented to ¡the trial court to show that further delay was unavoidable. There is nothing in the record to show that the plaintiffs took any steps after filing the Certificates. of Beadiness to obtain a trial date within the three-year period. The duty rests upon a plaintiff to use due diligence at every stage of the proceedings to expedite his case to a final determination (see Raggio v. Southern Pac. Co.,. 181 Cal. 472 , 475-476 [ 185 P. 171 ]; Weeks v. Roberts, 68 Cal.2d 802 , 806 [ 69 Cal.Rptr. 305 , 442 P.2d 361 ]). If it was impossible or impractical to proceed to trial because of the congestion of the court’s calendar, proof should have been presented-to -the trial judge in opposition to the motion to dismiss. Here plaintiffs failed to make a motion to advance the case on the trial list because the three-year deadline was approaching' (see Weeks v. Rolerts, 68 Cal.2d 802 , 806 [ 69 Cal.Rptr. 305 , 442 P.2d 361 ]).

Another argument asserted by plaintiff in opposition to the issuance of the writ was that the three-year provisions of section 583 are unconstitutional in that they violate both the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. The essence of the due process argument is that the three-year period is no longer a reasonable time; that because of the “tremendous increase in case load confronting our courts” the failure to bring the case to. trial within three years has “nothing to do

with any lack of .diligence by counsel. ’ ’ With regard to the contention of unequal protection, it is argued that section 583 establishes an unequal position “for the litigant who has gone through a trial once and is undertaking a new trial as opposed to those litigants who in the first instance are given five years, plus the further right to extend the time by stipulation.” We find no merit to these contentions. The dismissal statutes are not unconstitutional on the ground that they deny a plaintiff the right to prosecute actions for protection and preservation of his property (see Muller v. Muller, 179 Cal.App. 2d 815 , 819 [ 4 Cal.Rptr. 419 ]; Muller v. Coastside County Water Dist., 180 Cal.App.2d 712 , 713 [ 4 Cal.Rptr. 832 ]; Rosefield Packing Co. v. Superior Court, 4 Cal.2d 120 [ 47 P.2d 716 ]; 31 Cal.Jur.2d, §4, p. 430), and plaintiffs have not demonstrated wherein the statute is unreasonable as applied to them or that they have been denied an opportunity for a hearing; there is no showing that the delay in fact was caused by court congestion rather than by failure to prosecute with diligence. The legislative determination that a plaintiff may have five years within which to complete all necessary proceedings prior to the first trial, whereas a new trial after reversal upon appeal must be had more promptly, i.e., within three years, is based upon practical procedural considerations and is a reasonable classification, applicable alike to all litigants. The three-year provision of section 583 meets the test of equality under the same conditions and among persons similarly situated and does not violate the equal protection clause.

It is our view that the plaintiffs failed to comply with the three-year limitation of section 583 "which we have found to be the appropriate law rather than the 10-year provision of the Arkansas law. Since no evidence was presented which would demonstrate that there was compliance with section 583, the trial judge erred in denying defendant’s motion for a dismissal.

Let a peremptory writ of mandate issue.

Fleming, Acting P.J., and Wright, J., concurred.

The petition of the real parties in interest for a hearing by the Supreme Court was denied December 3, 1969. Mosk, J., was of the opinion that the petition should be granted.