Goers v. Superior Court

Opinion

ASHBY, J.

Petitioner is the cross-complainant in a civil suit now pending against the real party in interest.

1

The cross-complaint was filed November 23, 1970. Trial was originally set for August 14, 1972. It was continued to October 2, 1972, at the request of the real party, and then

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reset for October 16, 1972, upon stipulation of counsel. On October 6, 1972, on motion of real party, the at-issue memorandum was vacated and respondent court ordered that trial be reset not less than 90 days after the filing of a new at-issue memorandum. On February 14, 1975, in a notice of motion to restore the matter to the civil active list, petitioner declared that the matter was at issue. The motion was heard March 7, 1975, at which time respondent scheduled a mandatory settlement conference for August 4, 1975, and set trial for September 8, 1975.

On the latter date the parties appeared for trial, but no trial courts being available, respondent, on its own motion, reset trial for November 24, 1975, with priority. Respective counsel waived the five-year statute (Code Civ. Proc., § 583, subd. (b)) until the close of business on November 28, 1975, but no longer. On November 24, 1975, the matter was trailed for lack of a judge or courtroom. On November 26, 1975, the matter was again trailed for lack of a judge or courtroom. The parties were informed that no judge or courtroom was likely to be available on November 28 either.

2

Petitioner filed his petition on November 26, 1975, seeking a writ of mandate ordering respondent to commence trial within the statutory (Code Civ. Proc., § 583, subd. (b)) time period; or alternatively, a writ of prohibition restraining respondent from dismissing the cause of action pursuant to Code of Civil Procedure section 583, subdivision (b). This court stayed all proceedings relating to dismissal of the cause of action and issued an alternative writ. Hearing on the alternative writ was held January 28, 1976. We have concluded that petitioner is entitled to proceed to trial on the merits of his cross-complaint.