Hilliard v. Lobley

Opinion

HOLLENHORST, J.

Plaintiff appeals from a judgment of dismissal entered after the trial court granted defendant George Lobley’s motion to dismiss for failure to serve within two years. We affirm, finding no abuse of discretion.

Facts

On August 22, 1985, plaintiff filed an action for medical malpractice for injuries sustained in a surgery performed by defendant Dr. Lobley in May of 1982. Sometime thereafter, plaintiff substituted attorneys and the second attorney filed an amended complaint on March 18, 1986. On May 14, 1987, plaintiff retained her present attorney. The present attorney obtained a medical consultation and thereafter served the amended complaint on defendant on October 8, 1987.

On May 19, 1988, defendant filed an answer to the complaint and a motion to dismiss on the grounds that plaintiff had failed to serve the complaint within two years from the filing of the action. The matter was argued and on July 21, 1988, the court granted the motion to dismiss, finding unreasonable delay in service and actual prejudice to defendant. Plaintiff filed a motion for reconsideration on August 1, 1988, which was denied on September 1, 1988. The order of dismissal was entered on August 29, 1988, and the appeal was filed on October 3, 1988.

Discussion

An action to dismiss for failure to serve summons within two years is addressed to the trial court’s sound discretion and its decision will not be

[641]

disturbed absent a clear showing of a manifest abuse of that discretion.

(Longshore

v.

Pine

(1986) 176 Cal.App.3d 731, 736 [222 Cal.Rptr. 364].) Plaintiff contends the trial court abused its discretion as there was insufficient evidence to support its finding of actual prejudice to defendant. Defendant submitted his declaration and that of the anesthesiologist stating that they had no memory of the surgery or the incident. Plaintiff contends that as the claim of malpractice is predicated upon defendant’s use of the wrong size pins in plaintiff’s arm, a claim which according to plaintiff is readily determined by review of the X-rays and the medical records, defendant’s memory or lack thereof is irrelevant.