Sprajc v. Scandinavian Airlines System, Inc.

California Court of Appeal Mar 21, 1966 No. Civ. 28504Published

Before: Roth

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Holding. The court held that a trial court did not abuse its discretion in dismissing an action for want of prosecution under Code of Civil Procedure section 583 when the plaintiff failed to serve the complaint for over two years due to attorney inadvertence.

Issues

Whether a trial court abused its discretion in dismissing an action for failure to prosecute under Code of Civil Procedure section 583.
Whether section 581a limits the court's discretion to dismiss an action under section 583.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The discretion of the trial court under said section is broad, and will be disturbed only upon a showing of manifest abuse.”

“The burden of showing excusable delay to avoid the consequences of section 583 is on the party opposing the motion to dismiss.”

“The legislative policy underlying section 583 is not grounded solely in prejudice caused by delay to a defendant.”

ROTH, P. J.

Appellant seeks relief from a judgment dismissing appellant’s complaint entered pursuant to a motion by defendant Scandinavian Airlines System (respondent herein) under the provisions of Code of Civil Procedure, section 583.

[937]

Appellant claimed damages suffered as a consequence of an alleged negligent blow to his head with a flashlight or ‘

‘

other object” by an employee of respondent during a flight on or about July 29,1960, from Los Angeles to Copenhagen.

Appellant preliminarily attempted to personally adjust his claim. When he obtained no satisfaction from respondent, he employed an attorney in San Jose, California. A complaint was filed on July 24, 1961. Service was not made until August 13, 1963, two years and 20 days after the complaint was filed.

On August 18, 1963, three days after service, respondent filed an answer denying generally and specifically all allegations of the complaint. On January 30, 1964, pursuant to respondent’s motion therefor, the action was dismissed under section 583 of the Code of Civil Procedure.

Affidavits in opposition to the motion explained that the attorney after filing the complaint, reviewed the entire file and determined that: further settlement negotiations should be undertaken before service of the complaint; the attorney ordered his secretary to calendar the case in accordance with the usual practices of the law firm for which he worked; because of the press of other business, no settlement negotiations were conducted at the time, and because of improper filing by the secretary, the case was not brought to his attention until July of 1963, some two years later, at which time he promptly took steps to cause the service of the complaint.

The affidavit of respondent’s attorney, in reply, makes it clear that prior to August 13, 1963, no contact whatsoever was made with respondent after appellant informed respondent that he was going to turn the matter over to his attorney, in January of 1961.

Code of Civil Procedure, section 583 provides in pertinent part:

Sprajc v. Scandinavian Airlines System, Inc.

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ROTH, P. J.

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