Dunsmuir Masonic Temple v. Superior Court

A petition for writ of mandate was filed in this court following denial by the superior court of petitioner’s motion to dismiss a personal injury action for failure to prosecute within two years.

Petitioner’s sole contention herein is that the trial court abused its discretion in failing to grant the motion to dismiss.

The injury complained of occurred on February 16, 1966. On February 16, 1967, a complaint was filed on behalf of the real party in interest, Melba Miller, against defendant, Dunsmuir Masonic Temple. Summons was served three days short of three years later. On March 6, 1970, a motion to dismiss for failure to prosecute was filed in superior court. Only thereafter was petitioner served with notice of taking depositions. The motion to dismiss was heard on April 27; that same day Melba Miller filed her opposition. This constituted no more than an explanation of her injuries and physical incapacity after the accident. The declaration filed by defendant’s attorney stated that no action had been taken to prosecute the case.

On May 1, the superior court denied the motion to dismiss, but acknowledged that the ruling was on shaky grounds, and indicated that its…