Bronger v. Polytechnic School of Beauty Culture Ltd.

DRAPEAU, J. pro tem. Complaint to foreclose mechanic’s lien was filed in the Municipal Court of Los Angeles County, January 31, 1940. Answer of the respondent defendant was filed March 4, 1940. At the instance of the plaintiff, the case was set for trial in the municipal court for April 1, 1940.

Upon motion by the defendant the municipal court April 1, 1940, made its order transferring the case to the superior court for trial. But no papers were filed in the superior court until September 8, 1942, more than two years after the filing of the complaint and the date set for trial in the municipal court.

After the papers were filed in the superior court, the case was set for trial. Then, and on November 23, 1942, motion was made by the defendant to dismiss, which motion was [657]granted, pursuant to the provisions of section 1190 Code of Civil Procedure.

The only question here involved is whether there was an abuse of discretion by the trial court in granting this motion. (Farbstein v. Woulfe, 204 Cal. 595 [269 P. 446] ; Holt v. Miller, 214 Cal. 558 [6 P.2d 937, 79 A.L.R. 844] ; Code Civ. Proc., § 1190, 79 A.L.R. 847.)

Plaintiff’s affidavit in opposition to the motion to dismiss avers:

(a) That the asserted lien was for work done on a storeroom in a large building belonging to the respondent defendant, which resulted in the respondent defendant receiving rental which would not otherwise have been received.

(b) That defendant failed to file any notice of nonresponsibility, although the manager of the building had full knowledge of the improvements being made by the lien claimant.

(c) That the other defendant in the.action, the renter of the storeroom became insolvent and was adjudged bankrupt; that counsel for the plaintiff discussed with counsel for the defendant owner of the building a plan to endeavor to collect the amount of the lien from the defendant renter, who was primarily liable, but that no stipulation was signed between the parties; that temporary restraining orders in the federal court were issued, restraining plaintiff from proceeding with the pending action, which were in effect for a short time and were then modified to restrain enforcement of any judgment in this action. That when it became apparent plaintiff would receive no further payments from the renter defendant, plaintiff’s counsel proposed a stipulation regarding delay in the prosecution of the pending action, which stipulation was refused; steps were then taken to put the pending case in condition to be tried and to set the same for trial; whereupon it was found that the case had not as yet. been transferred to the superior court; and, whereupon, plaintiff was again restrained by the federal court from taking any further action, which restraining order was dissolved October 13, 1942.