Farrant v. Casas De La Senda Homeowners Assn.

Opinion

STONE, P. J.

The sole issue herein is whether the trial court abused its discretion when it granted respondents’ motion to dismiss pursuant to Code of Civil Procedure section 583, subdivision (a).

1

We find it did not and affirm the judgment of dismissal.

[224]

Relevant facts follow: April 14, 1980, appellant filed a complaint for “Breach of Restrictive Covenants, Negligence, Damages and Permanent Injunction” in propria persona and served summons and complaint on Casas de la Senda Homeowners Association April 22, 1980. Respondents filed their answer May 16, 1980, and noticed appellant’s deposition of June 2, 1980.

January 26, 1981, respondents filed a motion for judgment on the pleadings. Three days later, appellant substituted Attorney Robert Raupp as her attorney of record and February 19, 1981, the trial court granted respondents’ motion as well as her motion to amend the complaint.

March 23, 1981, appellant filed a first amended complaint for damages for “Breach of Contract, Negligence and Negligent and Intentional Infliction of Emotional Distress.” April 22, 1981, respondents filed a demurrer and motion to strike, both of which were granted May 14, 1981. Appellant filed a second amended complaint June 15, 1981, to which respondents demurred and moved to strike. August 6, 1981, the trial court sustained the demurrer for uncertainty concerning the first and third causes of action. September 4, 1981, appellant filed a third amended complaint, which respondents answered October 20, 1981.

After these initial skirmishes in the law and motion department concerning the pleadings, dust settled on the battlefield until December 13, 1982, when appellant sent respondent a statutory offer to compromise the action for $30,000 pursuant to Code of Civil Procedure section 998. Respondents rejected her offer December 22, 1982, and made a counteroffer of $1,700. Then followed a long, profound silence.

January 10, 1984, respondents filed a motion to dismiss pursuant to Code of Civil Procedure section 583, subdivision (a). Twenty-eight days later, appellant filed an at-issue memorandum to which respondents filed a counter-at-issue memorandum stating that the case was not at issue since the plaintiff had not defined theories of liability, there was a pending motion to dismiss, and no discovery had been commenced by plaintiff.