McKenzie v. Albaeck

• Citation: 219 Cal.App.2d 97,32 Cal.Rptr. 762
• Court: California Court of Appeals
• Decision Date: 06 August 1963
• Parties: Edna Mae Ghan McKENZIE, Plaintiff and Appellant, v. Karl ALBAECK, Frederick C. H. Fowler, Physicians Hospital Association, Inc., a corporation, doing business as Cottage Hospital, a corporation, Defendants and Respondents. Civ. 231.

Page 762

32 Cal.Rptr. 762

219 Cal.App.2d 97

Edna Mae Ghan McKENZIE, Plaintiff and Appellant, v. Karl ALBAECK, Frederick C. H. Fowler, Physicians Hospital Association, Inc., a corporation, doing business as Cottage Hospital, a corporation, Defendants and Respondents.

Civ. 231.

District Court of Appeal, Fifth District, California.

Aug. 6, 1963.

LeRoy W. Rice, San Francisco, for appellant.

Baker, Palmer, Wall, & Raymond and Robert L. Raymond, Bakersfield, for respondents Albraeck and Fowler.

Borton, Petrini, Conron, Brown & Condley and George A. Brown, Bakersfield, for respondent Physicians Hospital Ass'n, Inc.

STONE, Justice.

On November 18, 1957, plaintiff filed a tort action against the defendant doctors and defendant hospital, all of whom answered by February 21, 1958. Various discovery proceedings were instituted by the respective parties; defendant hospital moved for summary judgment, which was denied January 18, 1960. Thereafter additional discovery proceedings were had; pretrial was finally held October 21, 1960, and the action was set for trial on March 20, 1961.

At plaintiff's request, defense counsel stipulated that the March 20, 1961, trial date might be vacated and the case reset for trial 'at the request of any party.' Pursuant to this stipulation the matter was ordered off calendar. Nothing further was done until July 11, 1962, when plaintiff noticed a motion for an order to restore the case to the pretrial and jury calendars, and to set a date for pretrial. Defendants countered on August 17, 1962, with a motion to dismiss the action for failure to prosecute with reasonable diligence pursuant to Code of Civil Procedure section 583. The court denied the motion to restore the action to the active calendar, and granted the motion to dismiss the action. Judgment was entered pursuant to the order, and this appeal was taken.

The portion of Code of Civil Procedure, section 583 here pertinent, reads:

'The court may in its discretion 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, * * *.'

Thus two years is the minimum time which must elapse after the filing of a complaint before a dismissal can be granted. (Union Bond & Trust Co. v. M & M Wood Working Co., 179 Cal.App.2d 673, 679, 3 Cal.Rptr. 920.) Since four years and nine months elapsed here, the only question presented is whether the trial judge abused the discretion referred to in Code of Civil Procedure, section 583. (Bonelli v. Chandler, 165 Cal.App.2d 267, 269, 331 P.2d 705.)

This case is parallel to Rouse v. Palmer, 197 Cal.App.2d 666, 17 Cal.Rptr. 509, wherein we pointed out, at page 669, that the discretion specified by Code of Civil Procedure, section 583 is that of the trial court, not the reviewing court, and the action of the trial court will be disturbed only on a showing of manifest abuse. (Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18.) It is incumbent upon appellant to show that there has been such an abuse of discretion. (Rouse v. Palmer, supra.)

Appellant makes the novel contention that it is an abuse of discretion as a matter of law for a trial court to dismiss an action pursuant to Code of Civil Procedure, section 583 unless 'there is a continuous period of over two years with absolutely no activity and no adequate explanation shown by the plaintiff.' The argument is made that since only sixteen months elapsed after appellant obtained a...