Manor Drug Stores v. Blue Chip Stamps

Opinion

COBEY, J.

Manor Drug Stores, plaintiff in a class action, appeals its dismissal, pursuant to Code of Civil Procedure, section 583, subdivision (b) (the five-year statute),

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as against ten specified remaining defendants. The appeal lies. (§§ 581d, 904.1, subd. (a).)

We affirm the dismissal because we do not believe that the pendency of an earlier filed, virtually identical, federal action for approximately four of the five years prevented plaintiff from getting this action ready for trial and, in any event, the one year remaining constituted sufficient time to complete the task,

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Facts

The relevant facts are not in dispute. On June 21, 1971, plaintiff initiated the action before us within a month following the local federal district court’s dismissal of its virtually identical federal class action based upon the same alleged facts.

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Plaintiff did nothing further in this action until early June 1974 when it served respondents herein and one other subsequently dismissed corporate defendant in order to avoid dismissal of this action as to these defendants pursuant to section 581a, subdivision (b). At that time plaintiff granted the served defendants an open extension of 30 days, after written request of them, of the time within each such defendant would have to answer, move or otherwise respond.

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Plaintiff did not make this request of such defendants until November 21, 1975—almost one and one-half years later.

Meanwhile plaintiff had contested, with interim success in the ninth circuit, the dismissal of its federal action all the way to the United States Supreme Court. On June 9, 1975, the high court decided the federal action adversely to plaintiff and plaintiff’s petition for rehearing was denied on October 6, 1975.

By letter dated December 15, 1975, plaintiff requested of the served defendants, including respondents, a written stipulation extending for six months the five-year deadline for commencement of trial herein from June 21, 1976, in the event the deadline applied. Respondents never granted this request and no written stipulation extending the June 21, 1976, deadline was ever either executed or filed.