Greene v. Howmedica, Inc.

Opinion

STEPHENS, J.

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Statement of the Case

On September 3, 1982, appellant Greene, having had a metal hipbone prosthesis surgically implanted, suffered its failure. Defects in design and

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manufacture were allegedly the cause of the failure. Howmedica, Inc., was the alleged designer, manufacturer, distributor, and seller of the prosthesis. The customary allegations of pain, suffering, expenses and loss of earnings were alleged, all allegedly caused by the failure.

An attorney, Hammack, was employed by Greene on December 18, 1982, to prosecute the claim of Greene, and the complaint setting forth the above allegations was filed on August 30, 1983. Except for some preliminary law and motion matters and a demurrer, Hammack failed to prosecute the claim. He was incapacitated by alcohol and drug abuse. Following an extensive period of inactivity in the case, new counsel was associated on behalf of Greene and on June 23, 1988, a motion for preferential setting was made. At this time, some 48 days remained before the expiration of the 5-year statute. The motion was denied on July 13, 1988, and dismissal of the action followed. An appeal was successful in reinstating the case and ordering “the action is ordered set for trial." The remittitur issued on October 4, 1989, and was filed in the trial court on October 12,1989.

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On May 14,1990, a motion to dismiss for failure to obtain a trial setting within six months after the filing of the remittitur was made and granted.

Argument

Greene argues that there is no “six month” time limitation applicable in the instant case. He argues that the dismissal statute was tolled during the time the case was on appeal. To prevent an inordinate time between filing of an action and the obtaining of a trial setting where an appeal has intervened, Code of Civil Procedure section 583.350 provides: “If the time within which an action must be brought to trial pursuant to this article is tolled or otherwise extended pursuant to statute with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial, the action shall not be dismissed pursuant to this article if the action is brought to trial within six months after the end of the period of tolling or extension.”