Vogelsang v. Owl Trucking Co.

Opinion

COMPTON, J.

Plaintiff in a personal injury action appeals from a judgment of dismissal entered pursuant to Code of Civil Procedure section 583, subdivision (b) for failure to bring the case to trial within five years of the filing of the complaint. Plaintiff also noticed an appeal from two previous orders of the superior court dated January 18, 1973, and March 1, 1973. These two orders which will be mentioned

infra

in the chronology of events are nonappealable. (Code Civ. Proc., § 904.) However, the order of January 18, 1973, is reviewable on the appeal from the judgment of dismissal.

Chronology

March 4, 1968—complaint filed.

April 1, 1968—At-issue memorandum and certificate of readiness (“Old form”) filed. A setting conference but no pretrial conference was requested.

June 16, 1969—“New form” certificate of readiness filed but again no pretrial conference was requested. The certificate recites that all discovery is completed except for defendant’s medical examination of plaintiff.

August 19, 1969—Trial setting conference.

November 5, 1969—First trial date.

[1070]

March 15, 1971—After numerous continuances the matter was ordered off calendar. The order makes no reference to the at-issue memorandum or the certificate of readiness.

January 15, 1973—Plaintiff files notice of “Motion to Set For Trial Before Five Years.”

January 18, 1973-—Motion to set denied.

February 16, 1973—Plaintiff files notice of “Renewal of Motion to Set Within 5 Years.”

February 20, 1973-—Defendant files notice of motion to dismiss under Code of Civil Procedure section 583, subdivision (b).

March 1, 1973—Plaintiff’s renewal motion denied.