White v. Mortgage Finance Corp.

California Court of Appeal May 6, 1983 No. Civ. 66607Published

Before: Hastings

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Holding. The court held that the trial court did not abuse its discretion in dismissing the plaintiffs' action for failure to diligently prosecute under Code of Civil Procedure section 583, subdivision (a), given the significant period of inactivity and the lack of excusable delay.

Issues

Whether the trial court abused its discretion in dismissing the action for lack of diligent prosecution under Code of Civil Procedure section 583, subdivision (a).
Whether the trial court was precluded from granting a motion to dismiss after having previously set the case for trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The trial court’s conclusion that the delay was inexcusable is justified by the facts and we cannot say as a matter of law that the court abused its discretion.”

Opinion

HASTINGS, J.

Plaintiffs and appellants Tommy White and Cholette White (plaintiffs) had their lawsuit against Mortgage Finance Corporation (Mortgage

[772]

Finance), Hillcrest Builders (Hillcrest), Investor’s National Security Company (National Security), William V. Harrison (Harrison), and Ionova Knickerbocker (Knickerbocker) (collectively respondents), dismissed by the trial court for failure to diligently prosecute the action (Code Civ. Proc., § 583, subd. (a)).

This appeal followed.

Plaintiffs filed a complaint to quiet title against respondents on July 16, 1976.

On July 2, 1981, on the day set for trial and 14 days before the 5-year period expired (Code Civ. Proc., § 583, subd. (b)), the trial court granted respondents’ motion to dismiss the complaint. Plaintiffs claimed the court erred because they did diligently pursue the action and that any delay was caused by contingencies outside of their control. The facts are as follows:

On October 7, 1976, plaintiffs filed their first amended complaint (a demurrer had been sustained with leave to amend to the original action). By January 31, 1977, all respondents except Hillcrest had answered. Shortly thereafter, plaintiffs were unsuccessful in obtaining a restraining order in an unlawful detainer action filed against them by Harrison and Knickerbocker.

On May 9, 1977, Harrison and Knickerbocker filed an at-issue memorandum. On August 10, 1977, plaintiffs filed their at-issue memorandum.

In July 1977, plaintiffs served respondent Hillcrest and an answer was filed by August 3, 1977.

On June 29, 1979, plaintiffs’ attorney died. In late September plaintiffs were able to obtain their file from the office of their deceased attorney and on October 2, 1979, they hired their second attorney.

On April 15, 1981, plaintiffs filed a motion to advance case for trial. The court granted the motion and set the trial for May 18, 1981. However, Harrison and Knickerbocker had not been served with the motion and they filed a motion to strike the May 18th trial date. The court granted the motion and struck the at-issue memorandum.

White v. Mortgage Finance Corp.

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HASTINGS, J.

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