Mesler

Appeal from an order and judgment of dismissal by the Los Angeles County Superior Court, the Honorable Frank Baffa presiding. Affirmed.

I.

Introduction

A more detailed presentation of the facts and proceedings in this matter is set forth in part III under “Factual and Procedural Synopsis.” Since the contentions involve proceedings in three courts, i.e., the superior court, the Court of Appeal and the Supreme Court, we deem it advisable to give an expansive introduction for orientation purposes.

The appeal is taken from the November 28, 1988, judgment of dismissal of the Los Angeles County Superior Court pursuant to the “mandatory” provisions of California Code of Civil Procedure 1 sections 583.320 2 and 583.360, 3 which followed a hearing on the noticed motion of defendant/respondent Bragg Management Company, Inc. (Bragg). Cross-defend *987 ant and cross-complainant, Industrial Parts Depot, Inc. (IPD), claims to have joined in Bragg’s motion to dismiss.

Mesler’s action originated from an accident which occurred on July 31, 1979, while Wesley G. Mesler was operating a bulldozer on the premises of Mobil Oil Refinery in the City of Torrance, California, resulting in…

I respectfully dissent.

The following facts are undisputed. This case was not brought to trial within three years after the remittitur was filed because the superior court clerk lost plaintiff’s at-issue memorandum and, therefore, never processed the case toward trial. Plaintiff monitored the trial setting process in this case and, when he did not receive notice of a trial setting conference nine months after filing the at-issue memorandum, he questioned the court clerk about the status of the case. It was that inquiry which revealed the at-issue memorandum had been lost. If the at-issue memorandum had not been lost, the case would have been set for trial in the early summer of 1988, well within the three-year limit based on the finding the remittitur was filed on September 9, 1985.

Despite this evidence of impossibility and reasonable if not perfect diligence, I was about to sign the majority opinion denying appellant relief from the mandatory three-year dismissal rule. Then I reread for perhaps the 30th or 40th time the stock language acknowledging the statutory preference for the policy of trying a plaintiff’s claim “on the merits” over the *997 policy of denying the…

O'Rourke, Stafford & Allan and Todd A. Chamberlain for Cross-defendant and Respondent.

OPINION

WOODS (Fred), J.

Appeal from an order and judgment of dismissal by the Los Angeles County Superior Court, the Honorable Frank Baffa presiding. Affirmed.

A more detailed presentation of the facts and proceedings in this matter is set forth in part III under "Factual and Procedural Synopsis." Since the contentions involve proceedings in three courts, i.e., the superior court, the Court of Appeal and the Supreme Court, we deem it advisable to give an expansive introduction for orientation purposes.

The appeal is taken from the November 28, 1988, judgment of dismissal of the Los Angeles County Superior Court pursuant to the "mandatory" provisions of California Code of Civil Procedure [1] sections 583.320 [2] and 583.360, [3] which followed a hearing on the noticed motion of defendant/respondent Bragg Management Company, Inc. (Bragg). Cross-defendant and cross-complainant, Industrial Parts Depot, Inc. (IPD), claims to have joined in Bragg's motion to dismiss. [4]

Mesler's action originated from an accident which occurred on July 31, 1979, while Wesley G. Mesler was operating a bulldozer…