Hayutin v. Rudnick (1958) · DecisionDepot

Hayutin v. Rudnick

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 21, 1958 No. Civ. 5638Published

Before: Mussell

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Holding. The court held that the trial court did not abuse its discretion in dismissing the action for failure to prosecute, as the plaintiffs failed to demonstrate that bringing the case to trial within the statutory period was impossible, impracticable, or futile.

Issues

Whether the trial court abused its discretion in dismissing an action for failure to prosecute under Code of Civil Procedure section 583.
Whether the plaintiffs' delays in pleading and procedural steps constituted an exception to the mandatory dismissal provisions of section 583.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The discretion is that of the trial court and it will be disturbed only in cases of manifest abuse.”

“It is well settled that the action of a trial court in dismissing an action for failure to prosecute diligently should not be disturbed except upon a showing of clear abuse of discretion”

“In the instant case the trial court did not abuse its discretion in determining that plaintiffs failed to show that their failure to bring the cause to trial was not caused by their lack of diligence.”

Synopsis

Desser & Ran, Dorsey, Bultman & Bianchi, Sheldon R. Caplow, William V. Caplan and Henry E. Bianchi for Appellants.

[594]

MUSSELL, J.

The original complaint in this action for breach of contract, specific performance, to impose a trust, for an accounting, and for moneys had and received was filed in Los Angeles County on November 5, 1951. On motion for change of venue, the cause was transferred to Kern County on December 28, 1951. Plaintiffs appealed from the order transferring it and the order was affirmed on December 29, 1952.

(Hayutin

Rudnick,

115 Cal.App.2d 138 [251 P.2d 707].)

Plaintiffs failed for more than five years after the action was filed to bring it to trial and on January 17, 1957, defendants filed a motion to dismiss the action for want of prosecution. This motion was made under the provisions of section 583 of the Code of Civil Procedure and on the ground that the action was not brought to trial within the time limits specified in said section. The hearing was had on this motion on January 28, 1957, and on February 13, 1957, the trial court granted the motion and entered a judgment of dismissal of the action. Plaintiffs appeal from this judgment, claiming that under the circumstances of this case it would have been impracticable, futile or impossible to bring the action to trial within the time prescribed by the statute and that it would be a miscarriage of justice to deprive plaintiffs of a trial on the merits.

Rose

Knapp,

38 Cal.2d 114, 117 [237 P.2d 981], the court said: “The provision of section 583, requiring dismissal if an action is not brought to trial within five years after the filing of the complaint unless the parties have stipulated for an extension of the period, is mandatory, but it is subject to implied exceptions. As stated in

Christin

Superior Court,

9 Cal.2d 526, 532-533 [71 P.2d 205, 112 A.L.R. 1153], ‘The purpose of the statute is plain: to prevent

Hayutin v. Rudnick

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Synopsis

MUSSELL, J.

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