City of Industry v. Gordon

Opinion

DUNN, J,

This appeal by some defendants in an eminent domain action is from a superior court order which (1) denied such defendants’ “Motion for Entry of Judgment of Dismissal” and (2) denied defendants’ motion for “Attorneys Fees Upon Abandonment.”

The record on this appeal consists of a clerk’s transcript. It discloses that appealing defendants were 2 of 88 individually named defendants in

an

action in eminent domain which was brought to condemn 34 parcels of property for flood control and public road purposes. Plaintiff’s complaint was filed January 19, 1966; defendants’ answer was filed February 14, 1967. On May 19, 1971, plaintiff filed its request for a pretrial hearing; the hearing was set for July 1, 1971. On the latter date the parties appeared, the trial court’s minute order reading, in part: “Counsel for defendants Gordon raise the issue of applicability of Section 583 CCP. in re mandatory dismissal due to failure to have the matter to trial within five years after the complaint was filed and indicates that his client will not stipulate to extend the time for said trial. Counsel for plaintiff urges that the matter proceed .... The Court finds . . . that pursuant to the mandatory provisions of Section 583 CCP the Court is required on its own motion to dismiss the matter in the absence of a motion by a party to so dismiss. Accordingly, the action is ordered dismissed.” A formal order of dismissal was signed and . filed July 7, 1971. On July 29, 1971, appealing defendants filed the motion in question; it was denied September 21,1971.

The trial court’s order of dismissal filed July 7, 1971, complied with Code of Civil Procedure section 58Id

1

and constituted a judgment. Hence,

[93]

there was no requirement for another judgment to be made or entered and the trial court did not err in denying defendants’ motion for it. In this court, appellants make no contrary contention, Appellants’ argument here is that the trial court erred in denying that part of the motion asking for attorney fees.