McKenzie v. Albaeck

STONE, J.

On November 18, 1957, plaintiff filed a tort action against the defendant doctors and defendant hospital, all of whom answered by February 21, 1958. Various discovery proceedings were instituted by the respective parties; defendant hospital moved for summary judgment, which Avas denied January 18, 1960. Thereafter additional discovery proceedings were had; pretrial was finally held October 21, 1960, and the action was set for trial on March 20, 1961.

At plaintiff’s request, defense counsel stipulated that the March 20, 1961, trial date might be vacated and the case reset for trial “at the request of any party.” Pursuant to this stipulation the matter was ordered off calendar. Nothing further was done until July 11, 1962, when plaintiff noticed a motion for an order to restore the case to the pretrial and jury calendars, and to set a date for pretrial. Defendants countered on August 17, 1962, Avith a motion to dismiss the action for failure to prosecute with reasonable diligence pursuant to Code of Civil Procedure section 583. The court denied the motion to restore the action to the active calendar, and granted the motion to dismiss the action. Judgment was entered pursuant to the order, and this appeal Avas taken.

The portion of Code of Civil Procedure section 583 here pertinent reads: “The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial, . . . ”

Thus two years is the minimum time which must elapse after the filing of a complaint before a dismissal can be granted.

(Union Bond & Trust Co.

v.

M & M Wood Working Co.,

179 Cal.App.2d 673, 679 [3 Cal.Rptr. 920].) Since four years and nine months elapsed here, the only question presented is whether the trial judge abused the discretion referred to in Code of Civil Procedure section 583.

(Bonelli

v.

Chandler,

165 Cal.App.2d 267, 269 [331 P.2d 705].)

This ease is parallel to

Rouse

v.