Blue Chip Enters., Inc. v. Brentwood Sav. & Loan Ass'n

*709 Opinion

Plaintiffs appeal from a judgment dismissing their action for delay in bringing it to trial. We affirm.

The action was filed on January 24, 1968, alleging various acts of misconduct by defendants in connection with a loan on real property and the foreclosure of that loan. A first amended complaint was filed on March 18, 1968. Defendants filed their answer to the amended complaint on March 28, 1968. The record discloses no further activity in the trial court until November 2, 1972, when the case was called for trial.

On that date, after a conference in chambers, plaintiffs were permitted to call one witness—one of the individual plaintiffs—who testified briefly regarding her name, her husband’s name and her husband’s profession. The following proceedings followed:

On April' 16, 1974, after plaintiffs had substituted their present attorneys, they filed a motion for leave to file a second amended complaint. That motion was denied without prejudice on May 14, 1974. A renewed motion for leave to file the second amended complaint was filed on May 24, .1974; that motion was denied on June 7, 1974. A second renewed motion was filed on July 11, 1974; it was denied, without…

I cannot agree with the majority’s view that a dismissal of an action made by the trial court on the basis of Code of Civil Procedure section 583, subdivision (a) and also subdivision (b), should be upheld on an entirely different theory, to wit, that the dismissal is appropriate based upon the trial court’s inherent power to dismiss an action for the failure of the plaintiff to diligently prosecute such action and bring it to trial. I recognize that there exists the appellate principle that if a judgment or order of the trial court is decided correctly, it should be affirmed on appeal regardless of the invalidity of the grounds or reasons upon which the trial court reached its decision. But this doctrine is not an absolute one, and there exist several exceptions to it.

*714 In upholding the trial court’s order in the case at bench, the majority is using a legal theory that was not advanced by the moving party below, nor used by the trial judge. A review of the motion for dismissal made by the defendants indicates that the motion was based solely upon two code sections—section 583, subdivision (a), and section 583, subdivision (b), both of the Code of Civil Procedure. At no place…

KINGSLEY, Acting P.J.

Plaintiffs appeal from a judgment dismissing their action for delay in bringing it to trial. We affirm.

The action was filed on January 24, 1968, alleging various acts of misconduct by defendants in connection with a loan on real property and the foreclosure of that loan. A first amended complaint was filed on March 18, 1968. Defendants filed their answer to the amended complaint on March 28, 1968. The record discloses no further activity in the trial court until November 2, 1972, when the case was called for trial.

On that date, after a conference in chambers, plaintiffs were permitted to call one witness — one of the individual plaintiffs — who testified briefly regarding her name, her husband's name and her husband's profession. The following proceedings followed:

"THE COURT: All right. The motion for mistrial will be granted. As I understand it, one of the reasons for your desire for a motion for mistrial at this time is that all parties agree that an accounting should be made and that you want additional time to have leave to make a motion to amend your complaint to ask for an accounting, and also you want to get together with the defendant…