Wagner v. Rios

Opinion

HANING, J.

Appellant Superior National Insurance Company contends the court abused its discretion in dismissing its complaint in intervention in a personal injury action by plaintiff Linda M. Wagner against defendant/ respondent Mary Joyce Rios under Code of Civil Procedure section 583.410.

1

Procedural History and Facts

On January 21, 1987, Wagner filed a personal injury action against respondent arising from a 1986 automobile accident. On February 11, 1987, appellant, Wagner’s workers’ compensation insurer, filed its complaint in intervention for reimbursement of benefits provided to Wagner. Respondent’s answer to Wagner’s complaint was served in April 1987. In December 1987 the court ordered the case to mandatory arbitration. (§ 1141.10 et seq.) In March 1988 the parties appeared for arbitration, but the case was dropped from arbitration after Wagner represented her medical condition was not stable. The following month the case was dropped from the civil active list by agreement of all parties. In September 1989 appellant participated in one deposition and exchanged interrogatories with one of the other parties, who is not identified.

On November 2, 1990, the trial court, on its own motion, notified the parties of its intent to dismiss the entire action pursuant to section 583.410 unless good cause was shown. In its opposition to the notice of dismissal, appellant contended that following the March 1988 removal of the case from the civil active list, “[f]urther medical discovery was conducted but circumstances were further clouded” by Wagner’s involvement in a second automobile accident in December 1988. The declaration of appellant’s attorney stated that Wagner underwent spinal fusion surgery in January 1990, and the first indication that her medical condition had stabilized was derived from a September 1990 vocational rehabilitation report.

[611]

Appellant was the only party to appear at the December 26 dismissal hearing, at which time the notice of dismissal was stricken. Thereafter, respondent moved for reconsideration of the order striking the notice of dismissal because she had no notice of the hearing date. Appellant conceded respondent had received improper notice and agreed to a de novo hearing on the matter. Between December 26, 1990, when the court set aside the dismissal, and the March 1, 1991, renewed dismissal hearing, no at-issue memorandum was filed.