Moore v. El Camino Hospital District

Opinion

CHRISTIAN, J.

Jacqueline C. Moore appeals from a judgment rendered pursuant to Code of Civil Procedure section 583, subdivision (a), dismissing for want of prosecution her malpractice action against respondents El Camino Hospital District and Douglas Downey, M.D.

The motion for discretionary dismissal, pursuant to the two-year statute, was made four years and seven months after the filing of the complaint. Appellant presented no evidence in opposition to the motion, relying only on the following unsworn statement by counsel: “Your Honor, the attorney who took this case in the first place was with our firm for a long period of time, and left the firm; and it was our belief at the beginning that this was one of the cases he had taken with him.” On appeal, it is contended by appellant that the trial court mistook its duty to exercise discretion in ruling on a motion to dismiss made pursuant to the two-year statute. This contention is supported only by the fact that counsel for one of the respondents (El Camino Hospital District) cited in his memorandum of authorities a number of decisions which had been overruled by

Denham

v.

Superior Court

(1970) 2 Cal.3d 557 [86 Cal.Rptr. 65, 468 P.2d 193]. But the memorandum of the other respondent (Downey) explicitly pointed out that the power of the court to dismiss, pursuant to Code of Civil Procedure section 583, subdivision (a), was discretionary. Moreover, at the hearing on the motion, the guidelines for the exercise of such discretion which have been established by rule 203.5, California Rules of Court, were discussed and it was pointed out that the ruling “is in your Honor’s discretion . . ..” It is even possible that the court, through its own resources, had become aware of the 1970

Denham

decision without the assistance of the lawyers. The claim that the court misunderstood its duty must be rejected as unsupported speculation.

[664]

It was not an abuse of discretion to dismiss the action where no evidence was presented by appellant explaining why the action had not been brought to trial. The unsworn representation of counsel concerning unexplained confusion in his office was not a compelling showing of good cause.