Rodde v. Trousdale Constr. Co.

276 Cal.App.2d 419 (1969) EARL J. RODDE et al., Plaintiffs and Appellants,

v.

TROUSDALE CONSTRUCTION COMPANY et al., Defendants and Respondents.

Civ. No. 33641. California Court of Appeals. Second Dist., Div. One.

Sept. 25, 1969. Musick, Peeler & Garrett and Bruce Clark for Plaintiffs and Appellants. [420]

Schell & Delamer, Douglas W. Richardson, Russell & Schureman, Robert W. Hancock, Murchison, Cumming, Baker & Velpmen, Ronald R. McQuoid, Miller, Vandegrift, Middleton & Sackin, Thomas J. Middleton, Gibson, Dunn & Crutcher, Sherman S. Welpton, Jr., Charles S. Battles, Jr., Douglas M. Hindley, Booth, Mitchel, Strange & Willian, Owen W. Strange, Kirtland & Packard and Harold J. Hunter, Jr., for Defendants and Respondents.

LILLIE, J.

On June 17, 1963, plaintiffs filed an action for damages against various named defendants, the date of filing being approximately three years after they took occupancy of a newly constructed home in Beverly Hills (July 4, 1960) purchased by them one month earlier. Difficulties subsequently developed, and the several causes of action therein alleged, based on theories of negligence, warranty and fraud, make reference to defects and deficiencies consisting of cracks in the plaster as well as in the floor and terrazzo, breaking of water pipes, subsiding of the swimming pool and other adverse developments, all of which were assertedly due to settling caused, in turn, by the construction of the residence on land improperly graded and filled. Although all pleading was completed by February 11, 1964, an "At Issue Memorandum and Certificate of Readiness" was not filed until January 23, 1968, by plaintiffs' then attorneys. The defendants then filed motions to dismiss for want of prosecution after two years from the filing of the complaint (Code Civ. Proc., 583.) The motions were granted, and plaintiffs appeal from the ensuing order dismissing the action.

The governing statute fixes at two years the minimum time which must elapse after the filing of a complaint and before a dismissal may be granted. Since more than four years and eight months elapsed here, the only question is whether the trial court abused its discretion under the statute--"The court may in its discretion dismiss any action for want of prosecution ... whenever plaintiff has failed for two years after action is filed to bring such action to trial ...." (Code Civ. Proc., 583.) [1] Preliminary, the discretion of concern here is that of the trial court, not this court, whose action will be disturbed only on a showing of manifest abuse. (Hayashi v. Lorenz, 42 Cal.2d 848, 851 [271 P.2d 18].)plaintiffs contend, although it is not expressly so stated, that they have met the burden necessarily incumbent upon them (Gurst v. San Diego Transit System, 119 Cal.App.2d 51, 55 [258 P.2d 1109]) in that regard. [2] A careful appraisal of the