Tejada v. Blas

Opinion

MERRILL, J.

—Plaintiff Myma F. Tejada, doing business as Phil-Am Films Exchange, appeals from an order dismissing her action for failure to bring it to trial within five years. (Code Civ. Proc,. §§ 583.310, 583.360.)

1

We affirm.

I

Facts

Plaintiff filed the complaint on November -10, 1980. The complaint named as defendants Emilia S. Bias, Cecilia D. Pennington, and G.S. Sikand among others.

2

Bias and Pennington filed an answer and a cross-complaint on February 17, 1981, and an amended cross-complaint on May 15, 1981. Plaintiff answered the amended cross-complaint on June 11, 1981. G.S. Sikand, the remaining defendant, answered the complaint on August 10, 1981.

Plaintiff filed an at-issue memorandum on November 18, 1982. On April 25, 1983, plaintiff noticed the taking of the depositions of the three defendants, including Bias, for June 1983. Defendant Bias, however, was a resident of the Philippines at the time of service of the notice, and was not required to attend the deposition absent court order. (§§ 1989, 2019, subd. (b)(2).) Plaintiff’s counsel apparently did not seek such court order. Following the filing of a trial setting and arbitration conference statement, the matter was scheduled for arbitration on April 5, 1984, and then was rescheduled for May 29, 1984. Counsel for defendants Bias and Pennington then sought to withdraw as counsel of record for these defendants. Following additional delays caused by the illness of defendant Bias’s attorney and then his withdrawal as counsel of record, the arbitration was continued to October 3, 1984. On that date, defendant Bias failed to appear at the

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arbitration hearing, and the arbitration was continued to November 27, 1984. Defendant Bias then retained new counsel who advised the arbitrator that her client was required to be in the Philippines for medical reasons in November and would not be available until January 1985. Plaintiff opposed a continuance. The arbitrator, in a letter dated October 30, 1984, addressed to both counsel, responded that “In the. circumstances, I am quite prepared to grant a continuance although I realize that the plaintiff has had a difficult time through no fault of hers to have her day in Court.” He further stated: “While it would be preferable to have Mrs. Bias present at the trial I suggest that we proceed in January.” The arbitrator then rescheduled the arbitration for January 3, 1985, and stated that “she [Bias] will have to decide whether she wishes to return for the hearing.”