Luna v. Valenzuela

FORD, J. The superior court granted the defendant’s motion to dismiss the action pursuant to a provision of section 583 of the Code of Civil Procedure and rendered a judgment dismissing the action and awarding costs to the defendant. The plaintiff has appealed. The pertinent portion of section 583 is as follows: “The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial, . . .”

The facts to be considered in determining whether the superior court abused its discretion are these: 1. On December 27, 1957, the plaintiff filed his complaint in which he sought to quiet title and to obtain other relief as against the defendant with respect to certain real property. 2. On March 13, 1958, the defendant filed his answer. 3. A memo randum for setting the case for trial was filed by the plaintiff on March 27, 1958. 4. A pretrial conference was had on January 9, 1959, at which time a trial date of January 29, 1959, was set. 5. The joint pretrial statement, which was made a part of the pretrial conference order, set forth the respective contentions of the parties.1 6. In the pretrial conference order was embodied a stipulation of the parties that the title to the real property had stood of record in the name of the defendant since February 19, 1954, and that since that date the defendant had paid taxes and insurance on the property and made the payments due under the deed of [235]trust thereon, which had been recorded on April 17, 1953. 7. The pretrial conference order contained the following statement: “All depositions and discovery proceedings are completed.” 8. The case did not go to trial on the date set and on September 29, 1960, the plaintiff filed a new memorandum for setting the case for trial. 9. The matter was placed on the pretrial conference calendar of May 17, 1961, but was placed off calendar on that date. 10. On August 28, 1961, the defendant filed a notice of motion to dismiss the action for lack of prosecution, together with a memorandum of points and authorities and the affidavit of the defendant’s attorney in support of the motion. 11. An affidavit of the plaintiff’s attorney was filed in opposition to the motion. 12. Thereafter each counsel filed a further affidavit or certificate. 13. On October 18, 1961, the plaintiff filed a third memorandum for setting the ease for trial. 14. On October 19, 1961, the motion of the defendant was granted and a judgment of dismissal was rendered.