APPEAL from a judgment of the Superior Court of Los Angeles County. Allan J. Goodman, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. SC077603).
The opinion of the court was delivered by: Bigelow, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In the summer of 2003, appellants Moris Sakhai and Nayer Azadegan filed suit against several defendants alleging claims for trespass and negligence. By the spring of 2008, appellants had not brought the case to trial. The trial court, on its own motion, dismissed the case for delay in prosecution under Code of Civil Procedure sections 583.410 et seq.*fn2 The court later denied appellants' motion to set aside the dismissal under section 473, subdivision (b) due to attorney mistake, inadvertence, surprise, or excusable neglect. Appellants contend the trial court's orders were in error and an abuse of discretion. In the published portion of this opinion, we conclude the trial court gave proper notice of its order to show cause as to why the case should not be dismissed for delay in prosecution, in accordance with California Rules of Court, rule 3.1340(b). We modify the trial court's order of dismissal to one without prejudice, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, appellants were leasing an apartment on Wilshire Boulevard. According to appellants, a water pipe burst in the building, causing flooding and damage to appellants' property. In June 2003, appellants filed suit against five named defendants, including respondent Atwain Zipora, and numerous Doe defendants. The complaint asserted claims for negligence and trespass.
The record is silent as to what took place in the case between June 2003 and March 2005. In March 2005, appellant Sakhai filed for bankruptcy. The trial court subsequently stayed the instant action. In December 2005, the bankruptcy action was dismissed, and appellants informed the court the action was ready to be set for trial. The court told the parties the case would be reassigned, and set a further status conference and trial setting conference for January 2006.
The record does not include a transcript or other record of the trial setting conference, but at some point the case was set to go to trial in April 2007. In February 2007, appellants sought leave to file a second amended complaint. The proposed second amended complaint asserted additional causes of action for breach of covenant/ equitable servitude, breach of contract, and nuisance. The added claims were based on alleged breaches of the covenants, conditions, and restrictions, bylaws, and rules and regulations of respondent Wilshire Manning Homeowners Association (Wilshire Manning), which governed the building.
At the March 2007 hearing on appellants' motion for leave to amend, appellants' counsel represented that the amended complaint alleged no new facts, and no additional discovery would be necessary. Counsel for respondent Zipora argued the additional causes of action fundamentally changed the case, and further time would be required to allow for a motion for summary adjudication. Appellants did not object to a trial continuance. The court warned:
"All right. The court is inclined to grant the amendment. The question is whether defense actually wants the continuance. Plaintiff is amenable. I'll tell you that if there is a continuance, it's not going to be a short one because I have other people relying on their trial dates."
The court granted appellants leave to file the amended complaint and offered a February 4, 2008 trial date, which the parties accepted. The court also reminded the parties to comply with a previously issued trial order.
The record is silent as to what happened in the case over the nine months following the hearing on appellants' motion seeking leave to file a second amended complaint. In January 2008, the trial court issued the following order sua sponte:
"Notwithstanding the March 8, 2007 Order granting leave to file a second amended complaint, neither that complaint, nor any answer thereto, has been filed. Nor has any party complied with the June 29, 2006 Order Regarding Trial Preparation and Management, viz., no joint [or separate] documents have been timely filed in advance of the Final Status Conference, now reset for January 22, 2008. This action was filed on June 12, 2003 and has been set and reset for trial. It is now 4 and one half years old.
"Good cause appearing, each party shall show cause on Tuesday, January 22, 2008 why counsel should not be sanctioned for failing to timely file the trial documents specified in the Trial Order and in [California Court and Los Angeles Superior Court rules.] On February 4, 2008 at 8:30 a.m. each party [seeking] affirmative relief shall show cause why this action should not be dismissed for failure to bring to trial within three years of its filing."
At the January 22, 2008 hearing, appellants' counsel explained his office had received a copy of the complaint marked "received" by the court, and mistakenly interpreted the notation as an indication the complaint was filed. Counsel also claimed to be unaware that pre-trial filings were due. Although Zipora answered the complaint the morning of the hearing, Wilshire Manning had yet to answer or file a responsive pleading. The trial court discussed a trial date with the parties. The following colloquy ensued:
"Court: We have 15 and 18 cases set for each trial each month now set until next fall. So is there anything that compels this to be set before the fall? "[Appellants' counsel]: I don't know, but isn't there a five-anniversary year date? "Court: That is a good question, because this case is old to begin with. Let's see. You may need to bring a motion to advance it. . . . [¶] . . . [¶] . . . The court is going to vacate the trial date and FSC date. The plaintiffs need date to set this, because I don't have dates before October. The plaintiffs have to show good cause. The next date the court has is in October. . . . If plaintiff wants to go to trial before five years, he needs to make a motion."
On January 25, 2008, appellants filed the second amended complaint. On February 18, 2008, Wilshire Manning demurred to the second amended complaint. The demurrer asserted the second amended complaint failed to state a cause of action against Wilshire Manning because it alleged facts regarding only Zipora's actions and pled no facts about Wilshire Manning's acts, or its failure to act. At an April 1, 2008 hearing, the trial court sustained Wilshire Manning's demurrer with leave to amend. The court also ordered appellants to appear on April 29, 2008, to show cause as to ...