Brown v. Superior Court

[368]

Opinion

DRAPER, P. J.

Under the two-year discretionary dismissal provision (Code Civ. Proc., § 583) this action was dismissed as to Southern Railway, the real party in interest and one of the defendants below, for lack of prosecution.

Although the complaint in the basic action is not before us, the parties agree that it was filed July 10, 1967, and named a number of Does as defendants. Plaintiff, petitioner here, was injured January 6, 1967, while unloading a box car. His action seeks damages from others than his employer on the theory that they improperly loaded the car or, as carriers, mishandled it en route. Southern Railway was served September 22, 1969, as a Doe, on the theory that it was one of the carriers who moved the car across country. It moved to dismiss on December 2, 1969, somewhat more than 28 months after the basic action was instituted. In 1968, interrogatories had been served upon two other defendants, and their answers, filed July 2d and August 12th, revealed Southern Railway as one of the carriers which had handled the car. Plaintiff’s affidavits to the trial court allege, without contradiction, that he had no earlier knowledge of Southern’s involvement, and that in September and October of 1968 his attorneys determined the California status of Southern Railway and prepared documents to effect service upon it through the Secretary of State.

Plaintiff concedes that nothing was done as to Southern from October 1968 to September 1969, but alleges that the inaction was due to the sudden departure from his attorney’s office of the attorney who investigated the status of Southern and had prepared the papers for substituted service upon it. Plaintiff alleges that in September 1969, the file came to the attention of other counsel in the office, and that on September 19, 1969 they forwarded the necessary documents for service through the secretary of state.

Trial setting conference was pending when the motion to dismiss was made, and before granting of the motion the trial date had been fixed for June 29, 1970. Plaintiff alleges that no earlier trial date could have been had under prevailing calendar conditions, and Southern does not deny this.

We are well aware that denial after two years is discretionary with the trial court. But that discretion is not wholly unfettered. General policy favors trial upon the merits. It is only avoidable delay which may be penalized. Under circumstances indicating a reasonable excuse for delay, dismissal will be reversed (see, e.g.,