McDONOUGH POWER EQUIPMENT CO., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MARY GRASSO, Real Party in Interest, 8 Cal. 3d 527

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

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. On January 17, 1969, defendant answered the complaint.

The cause came on for trial in July 1971, but was continued to November 2, 1971, at which time defendant moved for dismissal under

section 583, subdivision (b), on the ground that the action had not been, brought to trial within three years from the filing of the remittitur. On November 4, 1971, respondent court denied defendant’s motion and reset the case for trial. Defendant thereupon filed the instant petition for a writ of mandate. Preliminarily we note that since no direct appeal lies from the denial of a motion to dismiss, an appeal from the judgment after a trial is an inadequate remedy when the motion is meritorious. Either a writ of mandate to compel dismissal or a writ of prohibition to restrain, the trial is a proper remedy to enforce the trial court’s duty to dismiss pursuant to

section 583, subdivision (b). (J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 669 [343 P.2d 919]; Tomales Bay etc. Corp. v. Superior Court (1950) 35 Cal.2d 389, 392 [217 P.2d 968]; 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 93, p. 2755.) Subdivision (

b) of

section 583 provides in relevant part: “Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced.or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation^in writing that the time may be extended. . . .

When in an actionC after judgment, an-appeak has been taken and judgment reversed with cause remanded for a new trial . . . the action must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial withinf three years) from the date upon which remittitur is filed by the clerk of the trial court.” (Italics added.) ' ’ The three-year provision of subdivision (

b) is clear and unambiguous and makes dismissal of the action mandatory unless it is brought to trial within three years of the filing of the remittitur. (Good v. State of California (1969) 273 Cal.App.2d 587, 591 [78 Cal.Rptr. 316]; Mass v. Superior Court (1961) 197 Cal.App.2d 430, 433 [17 Cal.Rptr. 549]; McDonnell v. American Trust Co. (1960) 178 Cal.App.2d 325, 328 [2 Cal.Rptr. 826]; Legg v. United Benefit Life Ins. Co. (1955) 136 Cal.App.2d 894, 896 [289 P.2d 553]; Cameron v. Cameron (1952) 110 Cal.App.2d 258, 260-261 [242 P.2d 408]; Neustadt v.

Skernswell (1950) 99 Cal.App.2d 293, 295 [221 P.2d 694]; Booth v. County of Los Angeles (1945) 69 Cal.App.2d 104, 108 [158 P.2d 401]; accord: Cotton v. Hallinan (1962) 201 Cal.App.2d 415, 416 [20 Cal.Rptr. 40]; McDonald Candy Co. v. Lashus (1962) 200 Cal.App.2d 63, 68 [19 Cal.Rptr. 137]; Inderbitzen v.

Lane Hospital (1936) 17 Cal.App.2d 103, 105 [61 P.2d 514].) It has been long and well settled that the above provision of the statute applies, and that dismissal is mandatory, in cases in which a judgment for the defendant entered upon an order sustaining a demurrer without leave to amend has been reversed. (Good v. State of California, supra, 273 Cal.App.2d 587, 589, 591; Hsu v. City etc. of San Francisco (1966) 240 Cal.App.2d 317, 322 [49 Cal.Rptr. 531]; Lane v. Davis (1964) 227 Cal.App.2d 60 [38 Cal.Rptr. 425]; Robertson v. Superior Court (1960) 180 Cal.App.2d 372, 375, 376 [4 Cal.Rptr. 297]; McDonnell v.

American Trust Co., supra, 178 Cal.App.2d 325, 327; Shutes v. Cheney (1954) 123 Cal.App.2d 256, 263 [266 P.2d 902]; Neustadt v. Skernswell, supra, 99 Cal.App.2d 293, 294-295; Smith v. City of Los Angeles (1948) 84 Cal.App.2d 297, 302, 305 [190 P.2d 943].) Plaintiff contends in the face of the foregoing authorities that the three-year provision of

section 583, subdivision (b), applies only where a judgment is reversed after a previous trial on the merits. She argues that the above

section expressly provides for a reversal “with cause remanded for a new trial” (italics added) and that

section 656 defines a new trial as “a re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee.” (Italics added.) But

section 656, which is found within title 8 of

part 2 of the code (“Of the Trial and Judgment in Civil Actions”), does not provide an exclusive definition of “trial” or “new trial,” nor does it establish an. identity of meaning between the term “trial” as used in

section 656 and as used in

section 583. On the contrary, in defining “trial” we have said “that it is the determination of an issue of law or fact” (Berri v. Superior Court (1955) 43 Cal.2d 856, 859 [279 P.2d 8]) or “the examination ... of the facts or law put in issue in a cause . . . .” (Tregambo v. Comanche M. and M. Co. (1881) 57 Cal. 501, 505; see also Adams v. Superior Court (1959) 52 Cal.2d 867, 870 [345 P.2d 466] and cases there cited; Carney v. Simmonds (1957) 49 Cal.2d 84, 90 [315 P.2d 305]; City of Pasadena v. Superior Court (1931) 212 Cal. 309, 313 [298 P. 968]; Good v.

State of California, supra, 273 Cal.App.2d 587, 590-591; Smith v. City of Los Angeles, supra, 84 Cal.App.2d 297, 301-302 and cases there cited.) Witkin recognizes that “[i]n its broad meaning the term includes a trial on the law. But whether a hearing on demurrer constitutes a ‘trial’ usually depends upon the language and purpose of the particular statute.” (4 Witkin, supra, Trial, § 2, p. 2862.) Thus in applying

section 583, a hearing on a demurrer constitutes a trial when the ensuing ruling is followed by a judgment of dismissal. As we said in Berri v. Superior Court, supra, 43 Cal.2d 856, 858-860: “With regard to the running of the five-year period, it has been held that the determination or a hearing on a demurrer to the complaint is not a trial within the meaning of

section 583 of the Code of Civil Procedure and hence the action is subject to dismissal after the five-year period has expired unless the ruling on demurrer is a final determination of the case. [Citations,] When the demurrer has been sustained and judgment of dismissal has been entered there has been a trial and the action is not subject to dismissal under

section 583. [Citations.] . . . The essential thing is that the action be brought to a stage where final disposition is to be made of it.” (Italics added.) Plaintiff’s contention merely attempts to circumvent the above authorities. We find it totally without merit. Plaintiff advances the alternate claim that the three-year provision of

section 583 does not apply in any event because there has been no remand for a new trial. The point seems to be that in reversing the judgment the Court of Appeal merely directed the trial court “to' overrule the demurrer insofar as it is based upon the statute of limitations.” (Grasso v. McDonough Power Equipment, Inc., supra, 264 Cal.App.2d 597, 602.) The same contention advanced on similar facts was rejected in Robertson v. Superior Court, supra, 180 Cal.App.2d 372, 375: “In effect, in the instant case, the reversal of the former judgment directed, or at least authorized, a new trial on the remaining issues.

An unqualified reversal remands a cause for a new trial.” (See also Good v. State of California, supra, 273 Cal.App.2d 587, 591 and cases there cited; Smith v. City of Los Angeles, supra, 84 Cal.App.2d 297, 299, 302.) We conclude that where, as in the instant case, a judgment of dismissal, entered upon an order sustaining a demurrer without leave to amend, has been reversed, the action must be brought to trial within three years from the filing of the remittitur in the trial court. In such case the determination of the issues of law raised by the demurrer constitutes a trial within the meaning of

section 583. Upon the going down of the remittitur the cause is remanded for a new trial whether the decision, so provides expressly, is an unqualified reversal, or, as here, contains a direction only as to the overruling of the demurrer. Under such circumstances, the three-year provision of

section 583, subdivision (b), applies and, since the action had been brought to trial, the five-year provision of .such

section has no application. We therefore reject as entirely without merit plaintiff’s contention that upon reversal of the judgment of dismissal the action is reinstated “under the umbrella” of the five-year provision of the statute. Nor, contrary to plaintiff’s claim, does the addition in 1970 of subdivision (d)* * to

section 583 establish such a contention. The point of plaintiff’s argument seems to be that subdivision (

d) would be meaningless unless it were applied to all actions which had not been tried on issues of fact. This is just a circuitous way of arguing that the five-year provision instead of the three-year provision should govern the reversal of a judgment of dismissal entered on an order sustaining a demurrer because there has been no trial. As the above cited authorities make clear, there has been a trial. Subdivision (

d) is not at all meaningless, since it governs in those cases where the five-year provision is properly applicable, said subdivision merely codifying a principle previously established in the case law. (See Christin v.

Superior Court (1937) 9 Cal.2d 526, 530 [71 P.2d 205, 112 A.L.R. 1153]; 4 Witkin, supra, Proceedings Without Trial, § 103, p. 2766.) Plaintiff further complains that the application of the three-year provision “has the effect of penalizing a diligent litigant for a judicial error not of her making.” She points out that she is barred from proceeding only three and one-half years, rather than five years, after the filing of her complaint. We recognize that in some instances where a judgment is speedily obtained, this result may follow.

But plaintiff’s argument ignores the fact that specified procedural events have brought the three-year provision into play. As we pointed out earlier, the subdivision is clear and unambiguous in its language and mandatory in its application. Any relief for the complaints which plaintiff makes must come from the Legislature. Finally, we observe that although it has been held that the three-year period may be extended by the implied exceptions of impossibility and impracticably (Good v.

State of California, supra, 273 Cal.App.2d 587, 591) plaintiff made no attempt to invoke such exceptions either in the trial court or in this court. Further, we do not think that they could apply here in any event, since the trial judge specifically stated that he would have dismissed the action had he thought the three-year period applicable. In the instant case the remittitur was filed on October 7, 1968. Under subdivision (

b) of

section 583, plaintiff was required to bring the action to trial by October 7, 1971. Since she failed to do so, it was mandatory upon the trial court to dismiss the action. Let a peremptory writ of mandate issue as prayed. Wright, C. J., McComb, J., and Burke, J., concurred. Hereafter, unless otherwise indicated, all

section references are to the Code of Civil Procedure. The trial judge found “that it has been in excess of three years since the remittitur was filed” but concluded that after excluding the period of time during which the case was on appeal and “the Court was without jurisdiction to try the case,” the five-year period provided by

section 583, subdivision (b), for bringing a case to trial had not expired. Observing that if he felt the three-year period applied, he would dismiss the case, the trial judge stated “that the Legislature anticipated in drawing the five year decree that there would be a five year period during which the plaintiff had a free and unfettered right to bring it to trial . . . [and] that the overriding intent of the Legislature was to allow that five year period, regardless of the three year limitation.” Subdivision (

d) of

section 583 provides: “The time during which the defendant was not amenable to the process of the court and the time during which the jurisdiction of the court to try the action is suspended shall not be included in computing the time period specified in this section.” This computation considers only the six months between June and December 1965, from the filing of the complaint until the judgment of dismissal, and the three years from the filing of the remittitur until the motion for dismissal under

section 583, subdivision ,(b). Time spent on appeal is excluded from the computation. (§ 583, subd. (d), see fn. 3, ante; see also Christin v. Superior Court, supra, 9 Cal.2d 526, 530.) Indeed the Legislature has provided just such relief by amending

section 583 (Stats. 1972, ch. 1014, p. 2057, § 1). In the words of the Legislative Counsel’s Digest the amendment, in pertinent part, “Provides that mandatory dismissal requirement of action not brought to trial within 3 years after judgment when new trial ordered is not a limitation on 5-year mandatory dismissal provision.” The amendment effected, this result by leaving the five-year limitation unchanged in subdivision (b). separating the three-year limitation into a new subdivision (

c) and then adding the following language to subdivision (c): “Nothing in this subdivision shall require the V,dismissal of an action prior to the expiration of the five-year period prescribed by subdivision (b).” “It is a" settled principle of statutory construction that a material change the phraseology of a legislative enactment is ordinarily viewed as showing an intention on the part of the Legislature to change the meaning of the statute. (Twin Lock, Inc. v. Superior Court, 52 Cal.2d 754, 761 [344 P.2d 788]; People v. Valentine, 28 Cal.2d 121, 142 [169 P.2d 1]; Loew’s Inc. v.

Byram, 11 Cal.2d 746, 750 [82 P.2d 1]; City of Burbank v. Metropolitan Water Dist., 180 Cal.App.2d 451, 462 [4 Cal.Rptr. 757].)” (Farmers Ins. Exch. v. Geyer (1967) 247 Cal.App.2d 625, 634 [55 Cal.Rptr. 861].) The above amendment thus clearly indicates that the Legislature believed that without the benefit of such amendment the three-year provision where applicable prevailed over the five-year provision, and further buttresses the holding of this court based on the unambiguous and mandatory language of the subdivision prior to amendment.