Specht v. City of Los Angeles

ASHBURN, J.

Pursuant to section 583

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of the Code of Civil Procedure, a judgment of dismissal of this action was rendered on the ground that it was not brought to trial within five years from the filing of the action. Plaintiff has appealed, contending that under the circumstances the dismissal was not mandatory in that the case comes within an implied exception to the statute. There was no written stipulation extending time, and no claim is made that an express exception of section 583 is applicable.

Chronology of events: Plaintiff filed the action on July 26, 1955. Defendant filed its answer on August 8, 1955. On August 12, 1955, plaintiff filed her memorandum to set and the case was set for trial on October 30, 1956. On October 30, 1956, on motion of plaintiff, the cause was continued to December 5, 1956, and on the latter date the cause was continued to February 8, 1957 on motion of defendant. February 8, 1957, the matter was apparently taken “Off Calendar” and nothing further was done until October 30, 1959, when a substitution of attorneys was filed, substituting for plaintiff her present counsel. Since the five-year period expired on July 26, 1960, there remained at this time a period of eight months and twenty-six days within which to bring the case to trial.

On December 9, 1959, plaintiff, represented by present counsel, filed a memorandum for setting contested action and the case was set on the pretrial conference calendar for hearing on January 18, 1961—a date beyond said five-year period. On September 26, 1960, a notice of pretrial conference was filed in which it is stated that “The Court, on its own motion, has set the above entitled ease for a pre-trial conference on January 18, 1961. ...” On the last mentioned date the pre

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trial conference was taken “Off Calendar, subject to 30 day-rule.”

On said date defendant, on notice, moved the trial court to dismiss the action on the grounds “that the above-entitled action has not been brought to trial within five (5) years after the plaintiff filed her action, and that there has been no stipulation in writing extending the time. ...” The motion was granted and plaintiff appeals from the judgment entered on January 30, 1961.