Woolfson v. Personal Travel Service, Inc.

Opinion

McCOMB, J.

Plaintiff appeals from an order dismissing an action for want of prosecution.

Facts:

By a complaint filed in February 1966, plaintiff sued for breach of contract and defamation. Defendants’ pleadings and discovery proceeded until December 1966. Plaintiff’s discovery proceeded until September 1967. Other than an abortive settlement conference, there was then a 17-month period of inactivity, which terminated in February 1969 when plaintiff filed an at-issue memorandum. Two months later, defendants moved, under section 583, subdivision (a), of the Code of Civil Procedure, to dismiss the action for want of prosecution.

1

The matter was heard, and in May 1969 (three years and three months from the filing of the complaint) defendants’ motion to dismiss was granted.

Question:

Is plaintiff entitled to a reversal of the order of dismissal, so that the trial court will have an opportunity to exercise its full discretion in the light of this court’s decisions in Denham

v.

Superior Court, 2 Cal.3d 557 [86 Cal.Rptr. 65, 468 P.2d 193], and its companion case, Martindale

v.

Superior Court, 2 Cal.3d 568 [86 Cal.Rptr. 71, 468 P.2d 199]?

Yes.

At the time the motion to dismiss was heard, this court had not handed down its decisions in

Denham

and

Martindale.

Thus, the rule enunciated in

Breckenridge

v.

Mason,

256 Cal.App.2d 121, 127 [64 Cal. Rptr. 201],

Black Bros. Co.

v.

Superior Court,

265 Cal.App.2d 501, 507