Carnation Co. v. Superior Court

California Court of Appeal Nov 19, 1969 No. Civ. 35173Published

Before: Feinerman

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Holding. The court held that the trial court abused its discretion by denying a motion to dismiss for lack of prosecution regarding the original plaintiff, who failed to show excusable delay after nearly five years of inactivity, but did not abuse its discretion in denying the motion as to the plaintiff in intervention.

Issues

Whether the trial court abused its discretion in denying a motion to dismiss for lack of prosecution under Code of Civil Procedure section 583.

Disposition. Granted in part and denied in part.

Quotations verified verbatim against the opinion

“We have concluded that the trial court did abuse its discretion in denying petitioner’s motion to dismiss as to the plaintiff.”

“If the plaintiff does not meet the burden of showing good cause for the delay, it is an abuse of discretion for the trial judge to refuse to grant the motion to dismiss.”

“The plaintiff has a duty to use due diligence at “. . . every stage of the proceeding to expedite his case to a final determination.””

Opinion

FEINERMAN, J. pro tem.

Petitioner seeks a writ of mandate to compel respondent court to dismiss a personal injury action brought by real party in interest, Inez P. Johnson. Similar relief is also sought as to the complaint in intervention filed by real party in interest, Agricultural Insurance Company, a corporation, workmen’s compensation insurance carrier for Johnson.

On August 13, 1964, Inez P. Johnson filed a complaint for damages resulting from personal injuries allegedly sustained by her on August 15, 1963, by reason of the negligence of petitioner and its employees. On September 11, 1964, plaintiff filed a first amendment to the complaint, and

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on October 7, 1964, plaintiff filed a second amendment to her complaint. Thereafter, on October 14, 1964, petitioner was served with a copy of the complaint and on October 30, 1964, petitioner filed its answer. On November 2, 1964, an answer to the second amendment to the complaint was filed by petitioner.

Petitioner took the deposition of plaintiff on April 1, 1965. On September 22, 1965, petitioner took the deposition of Stephen P. Lascóla pursuant to notice given to all parties. Counsel for plaintiff did not appear at said ceposition. On September 29, 1965, petitioner took the deposition of Betty Kester pursuant to notice given to all parties. Again, there was no appearance for plaintiff at the deposition.

On October 25, 1966, real party in interest, Agricultural Insurance Company, a corporation, filed its complaint in intervention. Petitioner filed its answer to said complaint on January 18, 1967. On August 10, 1967, petitioner took the deposition of Lester E. Nichols, M.D., and on August 11, 1967, petitioner took the deposition of Maurice N. Crakow, M.D. Although both depositions were duly noticed, counsel did not appear for either plaintiff or plaintiff in intervention when the depositions were taken.

Between May 22, 1967, and August 27, 1968, settlement negotiations involving attorneys for all of the parties ensued. Petitioner’s final offer in settlement was conveyed to the parties, in writing, on August 27, 1968, but the offer was not accepted and negotiations terminated.

Carnation Co. v. Superior Court

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