Stephan v. American Home Builders

Opinion

JEFFERSON, Acting P. J.

JH. L. Stephan, doing business as Downey Credit Service, filed the original action based on common counts, including an open book account and an account stated. After the trial court granted defendants’s motion to dismiss (Code Civ. Proc., § 583, subd. (a)) for failure to bring the matter to trial within the two-year period, plaintiff

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filed a second action based solely on the open book account and account stated within the applicable four-year period of the statute of limitations. (Code Civ. Proc., § 337.) The trial court granted defendants’ motion to dismiss the second action and plaintiff has appealed from both orders of dismissal; the appeals have been consolidated.

Plaintiff contends in his first appeal that the trial court abused its discretion in granting defendants’ motion to dismiss the original action.

Plaintiff’s original action was filed November 24, 1967. A trial date was scheduled for January 18, 1969, but the matter was taken off calendar because defendants Erickson, Berlu and American were not served with proper notice. On January 14, 1969, these defendants demanded a bill of particulars which plaintiff filed on January 28, 1969. On February 28, 1969, plaintiff filed a new at-issue memorandum. The court sent two notices of eligibility to plaintiff in March and May of 1969, respectively, but plaintiff filed no certificate of readiness, and on June 27, 1969, the case was removed from the civil active list.

Plaintiff filed a third at-issue memorandum on January 21, 1970, two years and two months after the date of filing the complaint. Defendants on January 28, 1970, filed a motion to dismiss (Code Civ. Proc., § 583, subd. (a)). This motion was taken off calendar February 20, 1970, due to their failure to give the 45-day notice required by California Rules of Court, rule 203.5. The motion to dismiss was refiled on February 28, 1970, and it was heard April 17, 1970.

Plaintiff made no showing of good cause for the delay in prosecution beyond the declaration that “plaintiff’s attorney had failed to note the fact that the Notice of Eligibility to file the Certificate of Readiness had been received and for that reason the required Certificate of Readiness has not been filed and the resultant delay occurred.”