Market-Front Co. v. Superior Court of San Francisco

DRAPER, P. J.

Petitioner seeks mandate requiring the trial court to grant its motion to dismiss a personal injury action in which it is a defendant. We issued alternative writ.

Complaint in the basic action was filed September 21, 1965, only three days before expiration of the one-year statute of limitations. Summons was not served upon petitioner until September 20, 1968, the day before expiration of the three years allowed for such service (Code Civ. Proc., § 581a).

Petitioner-defendant, on October 31, 1968, moved to dismiss the action for lack of prosecution. Plaintiff Taylor, the real party in interest here-, filed no declaration, affidavit or points and authorities in opposition to the motion. Nevertheless, the trial court denied it.

It is quite true that dismissal is in the discretion of the trial court when, as in our case, more than two but less than five years has elapsed since filing of the action without plaintiff’s bringing it to trial (Code Civ. Proc., § 483). But, as was squarely held in a recent decision

(Black Bros. Co.

v.

Superior Court,

265 Cal.App.2d 501 [71 Cal.Rptr. 344] [hearing denied by Supreme Court]), the motion. may be denied only upon some showing by plaintiff of excuse for delay. The defendant moving for dismissal is not required to make. a showing that he has a meritorious defense or has been preju

[507]

diced by the delay

(Bonelli

v.

Chandler,

165 Cal.App.2d 267, 273 [331 P.2d 705];

Breckenridge

v.

Mason,

256 Cal.App.2d 121, 127 [64 Cal.Rptr. 201]). The record itself shows failure to bring the case to trial within two years