HERNANDEZ v. LAINES

Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

Samuel HERNANDEZ, Plaintiff and Appellant, v. Willis LAINES, Defendant and Respondent.

A011842.

Decided: June 17, 1983

Victor H. Pineda, Oakland, for plaintiff and appellant. Johnston, Miller & Giannini, San Jose, for defendant and respondent.

Samuel Hernandez appeals from an order dismissing for lack of prosecution (Code Civ.Proc., § 583, subd. (a)) his complaint seeking damages for alleged negligence on the part of respondent Willis Laines.

Appellant sued respondent on April 5, 1977, alleging that he suffered personal injuries as a result of a sudden break in a water faucet handle while he was residing in respondent's apartment building.   Respondent answered the complaint on May 25, 1977, admitting ownership of the building in question but generally denying liability.   Appellant's deposition was noticed by respondent attorney on June 17, 1977, and taken on July 6, 1977.   Some time later, appellant's attorney discovered through correspondence with respondent's counsel that respondent was not insured.   Appellant's attorney investigated respondent's financial situation and in the latter part of 1977 concluded that the claim was nevertheless worth pursuing.

Because he felt that the case would ultimately go to trial, appellant's attorney decided to enlist the participation of other counsel possessing experience in the trial of negligence actions.   To this end appellant's attorney contacted a law firm in late 1977 and a law professor in August 1978.   Both declined association.   Through efforts in late 1978 and January or February 1979, appellant's attorney finally obtained the participation of a law firm on August 23, 1979.   Notice of association was filed with the court on September 18, 1979.

The next development occurred on September 27, 1979, when respondent filed a motion to dismiss for want of prosecution.   Later that same day appellant:  noticed the taking of respondent's deposition and the production of certain documents;  obtained a subpoena duces tecum for information concerning respondent's insurance coverage;  and filed an at-issue memorandum indicating appellant's readiness for trial.

Respondent's motion to dismiss was heard and granted on December 17, 1979, and judgment was entered on December 26, 1979.

 The trial court, in its discretion, may dismiss an action for lack of prosecution if the action is not brought to trial within two years after it was filed.  (Code Civ.Proc., § 583, subd. (a).)  In ruling on a motion to dismiss under section 583, subdivision (a), the trial court is required to consider:

“․ all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;  the extent to which the parties engaged in any settlement negotiations or discussions;  the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;  the nature and complexity of the case;  the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;  the nature of any extensions of time or other delay attributable to either party;  the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;  whether the interests of justice are best served by dismissal or trial of the case or by imposing conditions on its dismissal or trial;  and any other fact or circumstance relevant to a fair determination of the issue.”

(Cal.Rules of Court, rule 203.5(e).)

The discretionary power of the trial court to grant a motion to dismiss is not unlimited (see United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 233–234, 150 Cal.Rptr. 761).   Appellant urges that as a matter of law it was an abuse of discretion to grant a motion to dismiss under Code of Civil Procedure section 583, subdivision (a), when the moving party has failed to show that he has been prejudiced by the delay.   Respondent, on the other hand, asserts that the moving party is not required to show prejudice as a result of delay;  prejudice can be presumed from delay and where the party opposing the motion has not made any showing of excuse for the delay, the trial court may properly grant the motion to dismiss.

 Code of Civil Procedure section 583, subdivision (a), “places no restrictions on the exercise of the trial court's discretion, and in particular there is no requirement that the motion to dismiss ‘must’ be granted unless opposed by an adequate showing of diligence or excuse for delay.”   (Denham v. Superior Court (1970) 2 Cal.3d 557, 563, 86 Cal.Rptr. 65, 468 P.2d 193.)   In the entire absence of any showing constituting good cause for delay, however, dismissal is compelled.  (Denham v. Superior Court, supra, 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193;  Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688–689, 167 Cal.Rptr. 425.)   Thus, while section 583, subdivision (a), itself does not restrict the discretion of the court, the legal principle enunciated in Denham, i.e., in the absence of any showing constituting good cause for delay dismissal is compelled, does mandate the trial court to exercise its discretion under section 583, subdivision (a).   There is no counterpart to this rule which compels the denial of a motion to dismiss where the moving party has made no affirmative showing of prejudice.   While it is obviously pertinent for the moving party to show prejudice, it is never “entirely absent” since prejudice is inherent in protracted delay.   (Lopez v. Larson (1979) 91 Cal.App.3d 383, 401–402, 153 Cal.Rptr. 912;  contra, United Farm Workers National Union v. International Brotherhood of Teamsters, supra, 87 Cal.App.3d 225, 236, 150 Cal.Rptr. 761.)

 Some courts have considered as relevant to a showing of good cause for delay the fact that a plaintiff's attorney has been substituted (see Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 165 Cal.Rptr. 524;  United Farm Workers National Union v. International Brotherhood of Teamsters, supra, 87 Cal.App.3d 225, 150 Cal.Rptr. 761).   A situation is easily imaginable where, due to the complexity of the case, an association of counsel, as contrasted from a substitution, is required for an effective prosecution of a claim.   Therefore a showing of good cause for delay might perhaps be made out through a failure to obtain an association.   But in the present case the issues are not such that the failure to obtain an association constituted as a matter of law a showing of good cause for delay.   Accordingly, we review the conclusion of the trial court that appellant did not make a showing of good cause for the delay to determine whether the dismissal of the action by the trial court exceeded the bounds of reason and effected a miscarriage of justice.  (Corlett v. Gordon, supra, 106 Cal.App.3d 1005, 1012, 165 Cal.Rptr. 524.)

Generally, in cases involving a lack of prosecution attributable to an attorney, rather than his client, good cause for delay has been found where the circumstances causing the delay were effectively beyond the control of the attorney handling the case.  (See, e.g., Denham v. Superior Court, supra, 2 Cal.3d 557, 86 Cal.Rptr. 65, 468 P.2d 193 [plaintiff's law firm dissolved leaving three attorneys, one 72 years of age, to handle the remaining cases.   Shortly after this, the two younger attorneys received judicial appointments, leaving the burden of the practice (which was substantial) with the older attorney];  Woolfson v. Personal Travel Service, Inc. (1971) 3 Cal.3d 909, 912–913, 92 Cal.Rptr. 286, 479 P.2d 646 [plaintiff's attorney, a sole practitioner, had been tied up in two trials and was unable to consult with his client who was out of the country].)

Here, appellant's attorney attempts to excuse his failure to engage in any act of formal discovery prior to the filing of respondent's motion to dismiss by asserting that he was unable to procure an association with a trial attorney experienced in negligence actions and also that he was forced to undertake an investigation of respondent's resources to determine whether the claim was worth pursuing.

Appellant's attorney had determined that the case was worthy of pursuit sometime late in 1977.   It was then that he first attempted to enlist the participation of other counsel when he submitted the case file to a law firm.   This firm declined association on January 24, 1978.   Some time later, appellant's attorney submitted the file to a law professor who declined association on August 21, 1978.   The next attempt to obtain assistance was not begun until late 1978.   An association ultimately resulted from these efforts on August 23, 1979.   Even assuming that the failure to associate constituted some showing of good cause for delay, there remained for the consideration of the trial court two periods (from Jan. 27, 1978, to whenever appellant's attorney contacted the law professor, and from Aug. 21, 1978, to “late 1978”) which are otherwise unexplained.

From these unexplained gaps, it can be inferred in support of the judgment that appellant's attorney was not diligent in seeking an association.  “The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.”  (Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348–349, 5 Cal.Rptr. 550, cited with approval in Denham v. Superior Court, supra, 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.)   In light of all the relevant factors which the trial court was required to consider in ruling on respondent's motion to dismiss (see Cal.Rules of Court, rule 203.5(e)), appellant has not sustained his burden of showing an abuse of discretion on the part of the trial court.

Affirmed.

I dissent.

Respondent's motion to dismiss was made pursuant to Code of Civil Procedure section 583, subdivision (a), which provided at pertinent times as follows:  “The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed.   The procedure for obtaining such dismissal shall be in accordance with rules adopted by the Judicial Council.” 1  (Emphasis added.)

The second sentence of the statute, prescribing reference to “rules adopted by the Judicial Council” for the “procedure to be followed,” is framed in mandatory language (“shall”).   The “rules adopted by the Judicial Council” appear in the California Rules of Court as rule 203.5.   They include rule 203.5(e),2 which is also mandatory because it “sets forth the factors which must ․ be considered on a motion for such a dismissal.”   (Denham v. Superior Court (1970) 2 Cal.3d 557, 563–564, fn. 2, 86 Cal.Rptr. 65, 468 P.2d 193 [emphasis added].)  The trial court was thus free to act on respondent's motion to dismiss, in its discretion, but only after it had complied with the mandate of rule 203.5(e) that it consider “all” of the factors there specified and “any other fact or circumstance relevant to a fair determination” of the motion.  (See fn. 2, ante.)   The majority opinion essentially recognizes this in the dispositive statement referring to “all the relevant factors which the trial court was required to consider in ruling on respondent's motion to dismiss (see ․ rule 203.5(e)) ․”  (Maj. opn., p. 336 [emphasis added here].)

The statement last quoted apparently credits the trial court with having actually considered “all the relevant factors” in compliance with rule 203.5(e).   An appellate court may presume that the trial court followed the law, but the presumption applies only “ ‘in the absence of any contrary evidence.’ ”  (Ross v. Superior Court (1977) 19 Cal.3d 899, 913, 141 Cal.Rptr. 133, 569 P.2d 727;  People v. Angus (1980) 114 Cal.App.3d 973, 987, 171 Cal.Rptr. 5.)   It has been held that such “ ‘intendments and presumptions' ” may be indulged in support of a judgment only “ ‘on matters as to which the record is silent,’ ” and that “ ‘error must be affirmatively shown.’ ”  (Denham v. Superior Court, supra, 2 Cal.3d 557 at p. 564, 86 Cal.Rptr. 65, 468 P.2d 193.)   The present record is by no means “silent” in demonstrating that the trial court did not consider “all the relevant factors” prescribed by rule 203.5(e), and reversible error is “affirmatively shown” in it.   These conclusions are produced from an examination of details of the record not shown in the majority opinion, as follows:

Appellant filed his complaint against respondent on April 5, 1977.   The cause of action stated in it was for the recovery of damages for an allegedly severe injury he had received on July 23, 1976, when a porcelain water-faucet handle broke in his hand while he was using it in a house he then occupied as respondent's tenant.   Appellant alleged that the handle was in a defective and unsafe condition at all pertinent times;  that respondent knew or should have known this;  and that the injury was the proximate result of respondent's negligent failures to maintain the premises in a safe condition and to warn appellant of the dangerous condition of the faucet handle.

Alfred P. Yarrington was appellant's sole attorney of record when the complaint was filed.   Respondent answered it on May 25, and took appellant's deposition on July 6, 1977.   According to Mr. Yarrington's declaration in opposition to the motion to dismiss, he learned later in 1977 that respondent did not have liability insurance covering appellant's injury.   Still later in that year, Mr. Yarrington learned from an investigation that respondent nevertheless had “sufficient assets to justify prosecuting the case.”   Between then and 1979, Mr. Yarrington attempted to associate co-counsel as described in the majority opinion.   During that period, he did not undertake discovery or other proceedings in the action.

Other pertinent events occurred in 1979, as follows:  In a document served and filed on September 18, Mr. Yarrington gave notice to respondent that he had associated a named law firm and Victor H. Pineda as “co-counsel for plaintiff [appellant] in the ․ action.”   Respondent filed notice of his motion to dismiss on September 27, nine days later.   Pursuant to the 45-day requirement of rule 203.5(a) (see fn. 2, ante ), the motion was first noticed for hearing on November 19.   With the notice, respondent filed a supporting declaration by John H. Blake, his attorney, pursuant to rule 203.5(b).   (See ibid.)   In the declaration, Mr. Blake briefly recited the history of the action as of September 25.   He also stated that appellant had “conducted no discovery” and had “engaged in no other activity with reference to the ․ case of which defendant [respondent] is aware.” 3

Between September 27 and October 12, Mr. Pineda served and filed notices and other papers to the effects that on October 11 appellant would take depositions from respondent, his (respondent's) wife, his insurance broker, and a named insurance company.   The papers also called for the production of specified documents by each deponent.

On October 12, in opposition to the motion to dismiss, appellant filed a declaration by Mr. Pineda and a memorandum of points and authorities pursuant to rule 203.5(b).  (See fn. 2, ante.)   Mr. Pineda stated in his declaration that he and his law firm had been approached by Mr. Yarrington in February, 1979, concerning their association as appellant's attorneys in the action.   Mr. Pineda also described his investigation of the underlying facts.   He had learned that respondent had purchased the house in a used condition “twelve years ago,” moved it to its present site, rented it to three tenants, and then rented it to appellant, all without inspecting the faucet handles or making “any effort to determine that the house was habitable and suitable for the purposes for which he knew it was to be used by the tenant.”   Respondent's “practice” had in effect been to delegate his duties of inspection and repair to “one of his tenants.”

Mr. Pineda further showed in his declaration the steps he had taken in the action after he had been associated in it as Mr. Yarrington's co-counsel.   He attached copies of the various papers he had filed, including the at-issue memorandum and the papers calling for depositions and the production of documents on October 11.   He also alleged that he had taken respondent's deposition on that date as scheduled.   From his review of the case and other sources mentioned, Mr. Pineda had concluded that appellant had “a good and valid cause of action for personal injuries” against respondent.   Mr. Pineda also stated that he had learned, from “subsequent insurance” and from “correspondence” and other “documents” obtained from a named insurer and from respondent's insurance broker, that there had apparently been a “lapse” in respondent's liability insurance coverage for the rented house in which appellant had been injured.   Mr. Pineda further stated at length, with his reasons, that respondent had not been prejudiced by the delay in the prosecution of the action.

Mr. Yarrington's declaration in opposition to the motion, describing the delay and the reasons for it, was served and filed on November 2.   It was the last paper filed on respondent's motion to dismiss.4

Mr. Blake and Mr. Pineda appeared when the motion came on for hearing in the trial court.   Notwithstanding Mr. Pineda's presence and the extensive opposition on file, the court first inquired if there was “objection” to the motion.   Mr. Pineda replied in the affirmative.   The court said, “Fine.   Tell me about it.   I'm listening.”

Mr. Pineda described the commencement of the action by Mr. Yarrington in 1977.   The court asked, “How many attorneys looked at the file and said no, I don't want it?”   Mr. Pineda replied, “Just one attorney.”   He then cited the initial “problems” in the case, his association as co-counsel in 1979, and the steps he had taken in the action since.   He told the court that he had already taken two depositions, and that he had subpoenaed certain insurance records “to clear up the insurance problems.”   He stated:  “It is a viable cause of action, a good cause of action.   The plaintiff [appellant] has serious injuries.”   He also told the court that the action could be tried “within another six months,” and that “it is a serious case.”

In response to questions by the court, Mr. Pineda agreed that the action had been “at issue for two and a half years” (since the complaint had been answered in May of 1977), but he referred to “problems ․ which Mr. Yarrington had.”   The motion to dismiss was summarily granted in a brief exchange which followed, and which I quote in the margin.5

In my opinion, this record affirmatively demonstrates that the trial court granted respondent's motion to dismiss on the basis of the only conclusions the court expressly indicated:  that the action had been “technically” at issue for “two and a half years,” and that the delay in its prosecution was attributable to “shopping” by counsel because of his intent to “get someone else to handle the case and take a cut” of the fee.  (See fn. 5, ante.)   Apart from the fact that the court's description of counsel's motive was both unsupported and unfair, the record shows that the court gave no consideration to “all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and supporting data submitted by the parties” (and by appellant in particular);  to the “diligence” currently exhibited by appellant “in pursuing discovery or other pretrial proceedings”;  to the “nature ․ of the case” and the “law applicable” to it, both of which portended liability without contradiction by respondent (see fn. 4);  to the true “nature” of the delay attributable to appellant or to Mr. Yarrington;  nor to the “condition of the court's calendar” after Mr. Pineda had represented that the case could be tried within six months.  (See rule 203.5(e), quoted in fn. 2.)

Rule 203.5(e) did not expressly require the court to consider the question whether respondent had been prejudiced by the delay, but it is established that this question is an issue to be weighed by the trial court on a two-year motion to dismiss pursuant to section 583, subdivision (a).  (Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1015–1016, 165 Cal.Rptr. 524;  Lopez v. Larson (1979) 91 Cal.App.3d 383, 401–402, 153 Cal.Rptr. 912.)   In Hocharian v. Superior Court (1981) 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829, the Supreme Court held that a three-year motion to dismiss pursuant to section 581a, subdivision (a), requires the trial court to hear and determine the issue of prejudice to the defendant.  (Id., at pp. 723–724, 170 Cal.Rptr. 790, 621 P.2d 829 [text and fn. 9].)  The court also equated sections 581a and 583 in terms of their common effect in imposing “strict time limits on plaintiffs prosecuting lawsuits” and the potential for unfairness resulting from the “inflexible interpretation” of either statute.  (Id., at p. 719, 170 Cal.Rptr. 790, 621 P.2d 829.)   For these reasons, the Hocharian requirement should apply on a two-year motion to dismiss pursuant to section 583, subdivision (a).

A defendant moving to dismiss pursuant to section 581a, subdivision (a), has been substantially exposed to prejudice because he has not been served in the action for three years and presumably has been unaware of it for most of that period.  (See Hocharian v. Superior Court, supra, 28 Cal.3d 714 at p. 724, 170 Cal.Rptr. 790, 621 P.2d 829.)   A potential for prejudice is much less obvious on a motion pursuant to section 583, subdivision (a), and it was virtually nonexistent in the present case.   Respondent was sued less than nine months after appellant was injured.   He filed an answer in the action less than seven weeks after it was commenced.   He took appellant's deposition within six weeks after he filed the answer and less than one year after the injury.   He was presumably ready to pursue further discovery, and to prepare for trial otherwise, within the two years which followed;  he chose not to do this;  and he is presumably ready to do it now.

The majority's proposition that “prejudice is inherent in protracted delay” has no application here because it is based on decisions which involved circumstances supporting determinations that the defendants moving to dismiss had been prejudiced in fact.  (See, e.g., Corlett v. Gordon, supra, 106 Cal.App.3d 1005 at p. 1016, 165 Cal.Rptr. 524 [delay in wrongful death action commenced several years after the negligent acts alleged];  Lopez v. Larson, supra, 91 Cal.App.3d 383 at pp. 390, 401–403, 153 Cal.Rptr. 912 [defendant not served for two years and four months after issuance of summons];  Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 19, 22–23, 90 Cal.Rptr. 405 [defendant served “three days short of three years” after issuance of summons];  Daley v. County of Butte (1964) 227 Cal.App.2d 380, 384–386, 390–392, 38 Cal.Rptr. 693 [unexplained failure of plaintiff's attorney to effect service and to appear on motions in the action for three years].)  As I have pointed out, moreover, respondent made no effort to show prejudice and did not even claim it in any relevant sense.  (See fn. 3, ante.)

On appeal from a dismissal pursuant to section 583, subdivision (a), one Court of Appeal held as follows on the record before it:  “․ [T]he trial court's order must be reversed because the judge did not follow the dictate of the Legislature that he consider each factor of rule 203.5 [sic ], the plaintiff demonstrated diligence, and the dismissal prevents a meritorious cause from being heard on its merits.   As the defendants have failed either to claim or to establish any actual prejudice, this results in a manifest injustice to plaintiff.”  (Tannatt v. Joblin (1982) 130 Cal.App.3d 1063, 1070, 182 Cal.Rptr. 112.)   In the present case, the trial court similarly ignored “the dictate of the Legislature”;  the record includes an uncontradicted showing that appellant has a “meritorious cause” (see fn. 4, ante );  and respondent has similarly “failed either to claim or to establish any actual prejudice” resulting from the delay.

Whether appellant “demonstrated diligence” does not appear as a matter of law, but the majority opinion finds to the contrary by perceiving “unexplained gaps” in Mr. Yarrington's description of his efforts to associate co-counsel.   The judgment is thus being affirmed because my colleagues have considered one “relevant factor” despite the clear fact that the trial court ignored it and several others.   The result on appeal is a makeweight which perpetuates a flagrant violation of the statutory mandate and overlooks the message of its long history.  (See Comment, The Demise (Hopefully) of an Abuse:  The Sanction of Dismissal (1971) 7 Cal.Western L.Rev. 438, 451–460.)   On this record, the result is also a miscarriage of justice.  (Cal.Const., art. VI, § 13;  Tannatt v. Joblin, supra, 130 Cal.App.3d 1063 at p. 1070, 182 Cal.Rptr. 112.)   I would reverse the judgment.

FOOTNOTES

FOOTNOTE.  

1.   Statutory citations in this dissent are to the Code of Civil Procedure.  Section 583, subdivision (a), is quoted here as it read during the pendency of this action.

2.   The majority opinion quotes rule 203.5(e) only.   The appeal warrants consideration of the full text of rule 203.5, which reads in pertinent part as follows (emphasis added):“203.5. (a) A party seeking dismissal of a case pursuant to subdivision (a) of Section 583 ․ shall serve and file a notice of motion therefor at least 45 days before the date set for hearing of such motion, and the party may, together with his memorandum of points and authorities, serve and file an affidavit stating facts in support of his motion.   The filing of the notice of motion shall not preclude the opposing party from further prosecution of the case to bring it to trial.“(b) Within 15 days after service of the notice of motion, the opposing party may serve and file his written opposition thereto, together with a memorandum of points and authorities and a supporting affidavit stating facts showing why the motion should be denied․“(c) Within 15 days after service of the written opposition ․, the moving party may serve and file a response thereto, together with a supplemental memorandum of points and authorities and an affidavit stating facts in support of his motion.“(d) Within 5 days after service of the response, ․ the opposing party may serve and file a reply thereto.“(e) In ruling on the motion the court shall consider all matters relevant to a proper determination of the motion, including the court's file in the case and the affidavits and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;  the extent to which the parties engaged in any settlement negotiations or discussions;  the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;  the nature and complexity of the case;  the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;  the nature of any extensions of time or other delay attributable to either party;  the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;  whether the interests of justice are best served by dismissal or trial of the case or by imposing conditions on its dismissal or trial;  and any other fact or circumstance relevant to a fair determination of the issue.“(f) The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.”

3.   Although Mr. Yarrington's association of co-counsel on September 18 had obviously prompted the motion to dismiss, Mr. Blake ignored it in the statement last quoted.   He also stated in his declaration as follows:  “Defendant [respondent] had no insurance of any kind covering him for an incident such as is alleged in the complaint on file herein.   The defense of this matter is thus entirely at defendant's expense.”   These allegations were apparently designed to show that respondent had been prejudiced.   They were essentially irrelevant because they tended to show that he had been prejudiced by being sued, but not by any delay in prosecution of the action.   As will appear, respondent did not show or claim at any time that he had been prejudiced by delay.

4.   Respondent filed no “response” to the opposition pursuant to rule 203.5(c).  (See fn. 2, ante.)   There was consequently no contradiction of the statements in Mr. Pineda's declaration relative to potential liability in the action, the currency of its prosecution, or the fact that respondent had not been prejudiced by the previous delay.  (See fn. 3.)

5.   Commencing with Mr. Pineda's reference to “problems ․ which Mr. Yarrington had,” the exchange went as follows (emphasis added):“THE COURT:  What problems?  ․ The man ․ turned the hot water on and the handle broke․  He cut his hand․  I assume he did cut it.“MR. PINEDA:  Well, number one, there were problems regarding the ownership of the property, assets that belonged to the defendant, insurance problems relating—“THE COURT:  You don't need his assets to sue him and take him to trial.“MR. PINEDA:  Well, he [Mr. Yarrington] didn't want to handle this [case] himself through trial.   He wanted trial counsel, if you will note in his declaration.“THE COURT:  The attorney just took it, has been shopping, trying to get someone else to handle the case and take a cut.   That's what he's been trying to do for years.“MR. PINEDA:  No, your Honor.   I don't think so.   I think in this case he recognized he may have liability problems.“THE COURT:  Why didn't he tell his client, ‘I'm not going to handle your case.   Goodbye.  Go get somebody’?“MR. PINEDA:  He didn't want to abandon his client.“THE COURT:  He wants a little share of the fee, is what he wants.“MR. PINEDA:  Well, your Honor, I'm really not so interested in the attorney as I am in the client.   I'm trying to protect the client in this case and the client does have a serious injury.   We have prosecuted the case diligently ever since we got it.   In fact, we have moved it rapidly.“THE COURT:  I think you took over a stale case.   A lot of states have six-month dismissals [sic ].  We've got a two-year dismissal.   I'm going to grant the motion.   Case dismissed.”

CHRISTIAN, Associate Justice.* FN* Under assignment by the Chairperson of the Judicial Council.

CALDECOTT, P.J., concurs.