Gunner v. Van Ness Garage

DOOLING, J.

Plaintiff, Satenig Gunner, appeals from a judgment of dismissal entered on the defendants’ motions based upon her failure to prosecute her action with reasonable diligence. The original complaint was filed on December 20, 1950. No service was made on any of the defendants until September 17, 1953, and the last defendant served was the defendant Mohawk Petroleum Corporation on December 16, 1953.

Certain of the defendants filed a demurrer on August 4, 1954. An amended complaint was filed on September 10, 1954, to which the same defendants filed a demurrer on September 28, 1954. This demurrer was overruled on November 17,1954. On November 29, 1954, these defendants secured an extension of time to file a pleading and on December 8, 1954, an answer was filed to the amended complaint. Counsel

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for plaintiff filed a memorandum to set the case for trial on December 16, 1954, and a notice of motion to advance the case on the trial calendar on December 22, 1954. As a result the case was placed on the jury calendar with the trial date set for February 28, 1955.

The other defendants had a stipulation in writing that they need not file a pleading until they received 10 days’ notice from plaintiff’s counsel. The record does not show whether or not they received such notice but on January 19, 1955, these defendants by order of the court were given until January 30, 1955, to file a pleading. On January 31, 1955, these defendants filed their answer. These defendants filed their notice of motion to dismiss on February 16, 1955, and a similar motion was filed by the other set of defendants on February 28, 1955.

The motions were heard on extensive affidavits and counter-affidavits and the court granted the motions to dismiss by minute order entered March 17, 1955.

The motions were based on the discretionary power of the trial court to dismiss where the case is not brought to trial within two years after the filing of the action. (Code Civ. Proc., § 583.)

Certain principles in this field of the law are well settled : 1. That the burden is at all times on the plaintiff to use diligence at every step of the proceeding to expedite his case to final determination, and no affirmative duty to do more than meet the plaintiff step by step is cast on the defendant.