Lowe v. Thomas

California Court of Appeal Sep 30, 1970 No. Civ. 1227Published

Before: Stone

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Holding. The court held that the trial court did not abuse its discretion in dismissing the action for want of prosecution under Code of Civil Procedure section 583, as the plaintiffs failed to demonstrate reasonable diligence in pursuing their case. The court further held that a plaintiff's alleged lack of economic resources does not excuse a failure to perform rudimentary investigative tasks or to prosecute an action with diligence.

Issues

Whether the trial court abused its discretion in dismissing an action for want of prosecution under Code of Civil Procedure section 583 after a delay of over four years.
Whether a plaintiff's lack of financial resources constitutes a sufficient excuse for failing to prosecute an action with diligence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the burden is upon a plaintiff to justify his delay in bringing the case to trial”

“it is his duty “at every stage of the proceedings to use diligence to expedite his case to a final determination.””

“we cannot say the trial judge abused his discretion in dismissing the action because of appellants’ failure to bring their action to trial within a reasonable time.”

[869]

Opinion

STONE, P. J.

Appellants husband and wife, plaintiffs below, sustained personal injuries and property damage in a multiple-vehicle collision which occurred on the foggy night of January 4, 1964, near the overpass interchange of Highway 99 and state Highway 198. It is designated as Goshen Interchange and is in the County of Tulare, near the Visalia airport. Nearly one year after the accident, December 30, 1964, appellants filed an action in the Fresno County Superior Court naming respondents as defendants, along with others. Respondents filed a motion to dismiss for want of prosecution, under Code of Civil Procedure section 583 which, at all times pertinent, read in relevant parí: “The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial, ...”

Appellants appeal, claiming there was an abuse of discretion by the trial court in dismissing the action.

Since the determination rests in the trial court, the dismissal will not be disturbed unless a manifest abuse of such discretion is shown.

(Hayashi

Lorenz,

42 Cal.2d 848, 851 [271 P.2d 18].) The chronology of events is as follows:

Accident, January 4, 1964.

Complaint filed December 30, 1964.

Respondents served December 6, 1967.

Respondents answered January 5, 1968.

Appellants filed “at issue” memorandum September 18, 1968.

Set for trial on July 21, 1969.

Respondents’ motion to dismiss filed March 6, 1969.

Motion granted March 27, 1969.

Lowe v. Thomas

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STONE, P. J.

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