INTERNATIONAL CONSOLIDATED CONTRACTORS INC v. COUNTY OF VENTURA

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Court of Appeal, Second District, Division 6, California.

INTERNATIONAL CONSOLIDATED CONTRACTORS, INC., and Crdew Construction, Inc., Plaintiffs and Appellants, v. COUNTY OF VENTURA, County of Ventura Flood Control District, Soils Conservation District, et al., Defendants and Respondents.

Civ. B013954.

Decided: March 12, 1986

Douglas P. Grim, Los Angeles, Laura Snoke Draper, Pacific Palisades, for plaintiffs and appellants. James L. McBride, Co. Counsel, Anthony R. Strauss, Asst. Co. Counsel, Ventura, for defendants and respondents.

Appeal from order of dismissal for delay in prosecution under former Code of Civil Procedure section 583, subdivision (a).   We affirm.

Appellants brought this suit against respondents County of Ventura and Ventura County Flood Control District on January 17, 1980.   An answer was filed on behalf of the respondents on November 25, 1981.   The only other action taken by appellants in the case prior to January 7, 1985, was filing a proof of service upon respondents by appellants on March 3, 1982.   The proof of service had been executed on June 9, 1981.

On January 7, 1985, appellants filed a motion to advance case to trial.   This motion was set for hearing on January 23, 1985, but was continued to January 30, 1985, pursuant to stipulation of the parties.

In his declaration in support of the motion to advance, counsel for appellants recites that a “Memorandum That Civil Case is at Issue” was filed on June 28, 1982.   However, no at-issue memorandum was ever filed in this action.

On January 18, 1985, respondents filed a motion to dismiss under former Code of Civil Procedure section 583, subdivision (a).   This motion was also set for hearing on January 30, 1985.   The trial court granted the respondents' motion to dismiss and denied appellants' motion to advance.

It is agreed that the five-year period within which to bring a case to trial as specified in former Code of Civil Procedure section 583, subdivision (b) was extended in this case from January 17, 1985 to early April 1985, as a result of appellants filing a petition in bankruptcy.

As respondents point out, appellants initiated no discovery, engaged in no settlement negotiations, did not file any pretrial motions and never filed an at-issue memorandum.   Appellants did nothing to prosecute this case until the five-year period from the filing of the complaint had almost expired.   In fact, all that was done was to remove the case to the bankruptcy court for a two month period in 1981.

Respondents' attempt to show prejudice from the delay was inadequate.

In a recent Supreme Court decision, Blank v. Kirwan (1985) 39 Cal.3d 311, 332, 216 Cal.Rptr. 718, 703 P.2d 58, the court commented that even if a defendant has not been prejudiced, dismissal under Code of Civil Procedure 583, subdivision (a) may still be had because “ ‘[t]he legislative policy underlying section 583 is not grounded solely in prejudice caused by delay to a defendant.   Its purpose, too, is to expedite the administration of justice by compelling every person who files an action to prosecute it with promptness and diligence.’  (Sprajc v. Scandinavian Airlines System, Inc. (1966) 240 Cal.App.2d 935, 938, [50 Cal.Rptr. 181];  accord, Lopez v. Larson (1979) 91 Cal.App.3d 383, 400, [153 Cal.Rptr. 912];  Dunsmuir Masonic Temple v. Superior Court (1970) 12 Cal.App.3d 17, 22–23 [90 Cal.Rptr. 405].)”

 In a case, such as this, where the plaintiff fails to make an adequate showing of excuse for the delay, there is no requirement that a defendant establish prejudice before the action may be dismissed for delay in prosecution.  (D'Hondt v. Regents of University of California (1984) 153 Cal.App.3d 723, 731–732, 200 Cal.Rptr. 628;  Lopez v. Larson, supra, 91 Cal.App.3d at p. 401, 153 Cal.Rptr. 912.)

An action to dismiss for failure to prosecute within the period prescribed by section 583, subdivision (a) is addressed to the trial court's sound discretion and its decision will not be disturbed on appeal except in cases of manifest abuse.  (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 566, 194 Cal.Rptr. 773, 669 P.2d 9.)

There was no abuse of discretion in this case.

The judgment is affirmed.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.