What is the test for dismissing an action pursuant to Code of Civil Procedure, section 583?

California, United States of America


The following excerpt is from McKenzie v. Albaeck, 219 Cal.App.2d 97, 32 Cal.Rptr. 762 (Cal. App. 1963):

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 continuance of the trial before she requested a resetting, the judgment must be reversed. Appellant has dissected a number of cases in which the plaintiff's delay and continuous inactivity exceeded two years. From this appellant argues that a two-year period of continuous inactivity by a plaintiff must be shown in order to justify dismissal under Code of Civil Procedure, section 583. We find no such ruling enunciated in any of the cited cases; on the other hand, there is a plethora of authority that the two-year minimum period established by Code of Civil Procedure, section 583 commences to run from the filing of the complaint, not from the beginning of plaintiff's inactivity. The duty to use diligence to bring the case to trial rests upon the plaintiff at every stage of the proceedings. (Rouse v. Palmer, supra.)

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