Rodde v. Trousdale Construction Co.

damages against various named defendants, the date of filing being approximately three years after they took occupancy of a newly constructed home in Beverly Hills (July 4, 1960) purchased by them one month earlier. Difficulties subsequently developed, and the several causes of action therein alleged, based on theories of negligence, warranty and fraud, make reference to defects and deficiencies consisting of cracks in the plaster as well as in the floor and terrazzo, breaking of water pipes, subsiding of the swimming pool and other adverse developments, all of which were assertedly due to settling caused, in turn, by the construction of the residence on land improperly graded and filled. Although all pleading was completed by February 11, 1964, an “At Issue Memorandum and Certificate of Readiness” was not filed until January 23, 1968, by plaintiffs’ then attorneys. The defendants then filed motions to dismiss for want of prosecution after two years from the filing of the complaint (Code Civ. Proe., § 583.) The motions were granted, and plaintiffs appeal from the ensuing order dismissing the action.

The governing statute fixes at two years the minimum time which must elapse after the filing of a complaint and before a dismissal may be granted. Since more than four years and eight months elapsed here, the only question is whether the trial court abused its discretion under the court may in its discretion dismiss any action for want of ■prosecution . . . whenever plaintiff has failed for two years after action is filed to bring such action to trial . . . .” (Code Civ. Proc., §583.) Preliminarily, the discretion of concern here is that of the trial court, not this court, whose action will be disturbed only on a showing of manifest abuse. (Hayashi v. Lorenz, 42 Cal.2d 848, 851 [271 P.2d 18].) Plaintiffs contend, although it is not expressly so stated, that they have met the burden necessarily incumbent upon them (Gurst v. San Diego Transit System, 119 Cal.App.2d 51, 55 [258 P.2d 1109]) in that regard. A careful appraisal of the [421]several considerations advanced, all to the end that the concept of substantial justice requires that this case be heard on its merits, convinces us that the granting of the motions was well within the bounds of reason, all of the circumstances before the court being considered. (Berry v. Chaplin. 74 Cal. App.2d 669, 672 [169 P.2d 453].)

Although plaintiffs’ present counsel were not substituted until after the certificate of readiness was filed, it is not contended that they assumed direction of their clients’ cause with all of its benefits but none of its liabilities. The responsibility of diligent prosecution at every stage of the proceeding being on plaintiffs (Paul W. Speer, Inc. v. Superior Court, 272 Cal.App.2d 32, 37 [77 Cal.Rptr. 152] ; Market-Front Co. v. Superior Court, 271 Cal.App.2d 505, 507 [76 Cal.Rptr. 526]; City of Los Angeles v. Superior Court, 271 Cal.App.2d 292, 295 [76 Cal.Rptr. 256]; Black Bros. Co. v. Superior Court, 264 Cal.App.2d 501, 506 [71 Cal.Rptr. 344]; Preiss v. Good Samaritan Hospital, 171 Cal.App.2d 559, 563 [340 P.2d 661]), they make an effort to show that they complied with the foregoing requirement. On November 19, 1965, more than two years after the commencement of the instant action, paintiffs ’ former attorneys filed suit against the same defendants herein on behalf of plaintiffs’ next door neighbors, Mr. and Mrs. Maness, whose residence had experienced similar, damage, though not as severe as that alleged here. It is asserted in papers opposing the motions to dismiss that plaintiffs’ then counsel intended to seek consolidation of the two cases for trial; significantly, however, such intention was never communicated to defendants. Although not at issue until May of 1966, extensive discovery was conducted in the Maness action, depositions of certain defendants having been taken in the months of January 1966 through May of that year; still another deposition in that case was taken in May of 1967. Meantime, although at issue since February of 1964, nothing had been done in the instant matter until written interrogatories were served on defendant California Drilling & Blasting Company late in January of 1966; the answers thereto were received the following month.