Jensen v. Western Pacific Railroad

California Court of Appeal Mar 1, 1961 No. Civ. 9714Published

Before: Peek

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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 prosecute under Code of Civil Procedure section 583, as the pendency of a separate appeal regarding a defendant's status as an alter ego did not constitute a valid excuse for the delay.

Issues

Whether the trial court abused its discretion in dismissing an action for want of prosecution under Code of Civil Procedure section 583.
Whether the pendency of an appeal in a related case involving the same defendant constitutes a valid excuse for delay in prosecution.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well established that a dismissal under the provisions of section 583 applicable to the situation herein presented lies within the broad discretion of the trial court and will not be disturbed except in case of a manifest abuse of that discretion.”

“It is settled that a pending appeal serves as an excuse for delay only where it involves “the very basis of the action sought to be dismissed.””

“In view of the record in this case and the legal principles discussed above, we are of the opinion that the court below did not abuse its discretion in dismissing the action for want of prosecution.”

PEEK, J.

This is an appeal by plaintiffs from a judgment of dismissal for failure to prosecute as provided in section 583 of the Code of Civil Procedure. Chronologically the pertinent facts are as follows:

February 3, 1953: Plaintiffs, while driving their automobile on Highway 99 East near the city of Live Oak in Sutter County, collided with a train operated by the Sacramento Northern Railway. Riding with plaintiffs at that time were Mr. and Mrs. Hepworth;

January 11, 1954: Separate complaints for damages were filed by the Jensens and the Hep worths;

March 15, 1954: Answers by the corporate defendants were filed, wherein the allegations of negligence were denied and affirmative defenses of contributory negligence were set forth;

April 2, 1954: Defendants moved in each case for a change of venue to Sutter County;

June 16, 1954: Motions for change of venue were submitted ;

March 3,1955: Defendants’ motions were denied;

[595]

April 27, 1955: Defendants filed notices of appeal in each case from the order denying their motions for change of venue ;

August 8, 1955: Defendants’ motions for summary judgment in each case were filed ;

August 8, 1955: Defendants filed notices of motion to consolidate the two cases for trial, which motions were opposed by plaintiffs;

August 16, 1955: Plaintiffs’ counsel filed affidavit in opposition to defendants’ motions for summary judgment;

August 17, 1955: Motions to consolidate denied;

September 7,1955: Motions for summary judgment denied;

September 13, 1955: Trial commenced in Hepworth ease; (Note: After three and one-half months’ trial the jury, being deadlocked, was discharged.)

April 27, 1956: Defendants abandoned appeals from order denying motions for change of venue ;

Jensen v. Western Pacific Railroad

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PEEK, J.

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