Freedman

Freedman v. Pacific Gas & Electric Co.

Good Law
196 Cal. App. 3d 696·1987 Cal. App. LEXIS 2364·242 Cal. Rptr. 8
Court of Appeal of CaliforniaOctober 26, 1987A035641California6,464 words

Opinion

Opinion

Smith, J.

Plaintiffs David Freedman (Freedman) and I.M.S. (U.S.A.), Inc. (IMS), appeal from an order granting a motion to dismiss their fifth amended complaint against defendants Pacific Gas and Electric Company (PG&E), Mutual Petroleum Marketing Co., Inc. (MPM), and R. P. Benton (Benton) for plaintiffs’ failure to diligently prosecute the action (Code Civ. Proc., § 583.420).

The issue is whether there was an abuse of discretion by the superior court. Finding none, we will affirm.

Background

The allegations

Plaintiffs are oil brokers suing over commissions allegedly due them under two 1974 agreements. Underlying those agreements is an April 1974 contract (the sales contract) by which MPM, a New York corporation, agreed to sell crude oil to PG&E, a California corporation, through December 1975 with month-to-month extensions continuing beyond that term until canceled by either party. In a related contract (the exchange contract), PG&E agreed to pay MPM a service fee of 27.5 cents per barrel for having crude oil sold and delivered under the sales contract exchanged for refined oil.

There were two commission agreements. Under one executed in March 1974 (the MPM commission…

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