Gunner v. Van Ness Garage

• Decision Date: 22 April 1957
• Citation: 150 Cal.App.2d 345,310 P.2d 32
• Court: California Court of Appeals Court of Appeals
• Parties: Satenig GUNNER and Mimi Gunner, Plaintiffs and Appellants, v. VAN NESS GARAGE; Clyde W. Mason, Warren Dickens, etc.; Mohawk Oil Corp.; Lumbermens Mutual Casualty Company, a corporation; and National Retailers Mutual Insurance Company, a corporation, Defendants and Respondents. Civ. 17116.

Page 32

310 P.2d 32

150 Cal.App.2d 345

Satenig GUNNER and Mimi Gunner, Plaintiffs and Appellants, v. VAN NESS GARAGE; Clyde W. Mason, Warren Dickens, etc.; Mohawk Oil Corp.; Lumbermens Mutual Casualty Company, a corporation; and National Retailers Mutual Insurance Company, a corporation, Defendants and Respondents.

Civ. 17116.

District Court of Appeal, First District, Division 2, California.

April 22, 1957.

Hearing Denied June 19, 1957.

Noal R. Gray, San Francisco, Hutchinson & Quattrin, San Francisco, for appellant.

Daniel J. O'Brien, Jr., Daniel J. O'Brien, III, San Francisco, for respondents Van Ness Garage, Mohawk Petroleum, Dickens.

Alexander, Bacon & Mundhenk, San Francisco, Herbert Chamberlin, San Francisco, for respondents Lumberman's & National.

DOOLING, Justice.

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 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. The 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 Frbruary 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 the 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. Oberkotter v. Spreckels, 64 Cal.App. 470, 473, 221 P. 698; Steinbauer v. Bondesen, 125 Cal.App. 419, 426-427, 14 P.2d 106; Continental Pacific Lines v. Superior Court, 142 Cal.App.2d 744, 753, 299 P.2d 417. 2. In acting on such a motion the trial court has a wide discretion which will only be disturbed by an appellate court in case of manifest abuse. Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18; Hillsdale Builders Supply Co. v. Eichler, 109 Cal.App.2d 117, 118, 240 P.2d 343; Steinbauer v. Bondesen, supra, 125 Cal.App. 419, 427, 14 P.2d 106.

Plaintiff waited almost three years to serve the summons upon the defendants. If the summons had not been served within the three year period the dismissal of the action would have been mandatory under Code of Civil Procedure, section 581a. There was very little excuse offered by plaintiff for this long delay. The fact that plaintiff changed her counsel twice during this period was no concern of the defendants who were only required to meet her step by step. Some effort was made to show that the delay was due to negotiations for settlement but according to the defendants' affidavits, which we must assume the trial court believed, any such negotiations were sporadic and not continuous nor of such a character as to excuse or explain the long delay in the service of summons.

When the defendants had been finally served...