Bolsinger v. Marr

[269]

Opinion

FLEMING, J.

Bolsinger appeals the dismissal of his action against the Marrs for want of prosecution. (Code Civ. Proc., § 583.) The relevant chronology:

December 1962—Bolsinger filed an action against the Marrs for specific performance, declaratory relief, and damages in connection with a contract for the purchase of real property.

September 1965—The Marrs filed a separate action against Bolsinger to partition the real property involved in Bolsinger’s complaint, property assertedly owned by the Marrs and Bolsinger as tenants in common.

April 1966—On Bolsinger’s motion the two actions were consolidated.

February 1968—The Marrs dismissed their action, and then moved to dismiss Bolsinger’s action. Bolsinger filed a certificate of readiness for trial.

February 1968—The trial court dismissed Bolsinger’s action under section 583.

Bolsinger argues that the five-year period of section 583 had not run on his action because the filing of the second action, later consolidated with the first, tolled the running of the five-year period on the first action for two years, thereby extending its termination date from December 1967 to December 1969. From this Bolsinger concludes that his action had been dismissed under the two-year discretionary provision of section 583, and he argues that under the circumstances of the case the dismissal amounted to an abuse of the trial court’s discretion.

Bolsinger’s argument with repect to the tolling of the five-year period relies principally on

General Motors Corp.

v.

Superior Court,

65 Cal.2d 88 [52 Cal.Rptr. 460, 416 P.2d 492], Since this is the latest Supreme Court case dealing with time schedules for bringing consolidated actions to trial, we discuss it in some detail. Two plaintiffs filed an action for personal injuries against General Motors in June 1960. Thereafter one plaintiff died, and in February 1964 the remaining plaintiff and others filed a wrongful death action against General Motors based on the same accident. In December 1964, on plaintiffs’ motion, the two actions were consolidated for trial. In September 1965 defendant moved to dismiss the first action on the ground that plaintiff had failed to bring it to trial within five years. The trial court denied the motion to dismiss, and the Supreme Court upheld the denial of the motion. In its opinion the Supreme Court reaffirmed the general rule that actions which have been consolidated for trial continue to receive separate calculation of the time within which each must be brought to trial. (P. 93.) The court also discussed the