Hawks v. Hawks

Opinion

TURNER, P. J.

I. INTRODUCTION

Plaintiff, Dixianne Hawks, appeals from an order dismissing her complaint concerning title to real property brought against a number of defendants after the death of her father, Thomas Hawks.

1

Relying solely on Code of Civil Procedure,

2

section 583.410, subdivision (a) the trial court dismissed the action without prejudice at an order to show cause hearing for failure to serve defendants with the summons and complaint. We reverse.

H. BACKGROUND

The complaint was filed on May 5, 2005. The July 19, 2005 minute order states the case was set for an order to show cause for failure to file a proof of service. On July 18, 2005, plaintiff filed an affidavit requesting a three-month extension of time to serve the complaint. Plaintiff, who is representing herself, stated she was disabled; she needed counsel to represent her in the matter; and there was a matter pending in Northern California between her and one of the defendants in this action. Plaintiff did not appear at the order to show cause hearing on July 19, 2005, wherein the trial court dismissed this

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action solely pursuant to section 583.410, subdivision (a), without prejudice. Plaintiff’s timely appeal followed.

m. DISCUSSION

The trial court dismissed the action solely pursuant to section 583.410, subdivision (a), which provides in pertinent part: “The court may in its discretion dismiss an action for delay in

prosecution pursuant to this article

... if to do so appears to the court appropriate under the circumstances of the case.” (Italics added; see