Wheeler

Plaintiff appeals from a judgment of dismissal for lack of prosecution of a personal injury action. (Code Civ. Proc., § 583.310.)

Facts

Plaintiff was injured while shopping in defendant’s McHenry Avenue store in Modesto on October 1, 1979. She tripped and fell over a protrusion in a display island, “sustaining injury to her body and shock and injury to her nervous system and person . . . .” Plaintiff filed her complaint on October 1, 1980, and served defendant Pay less with summons and complaint on June 25, 1982. On July 14, 1982, plaintiff’s counsel had a telephone conversation with Self-Insured Management Services, Inc., representing defendant. Plaintiff’s counsel agreed to grant defendant an open extension of time within which to file an answer and further agreed no default would be taken without giving defendant’s representative 10 days prior written notice. Following the telephone conversation, defendant’s representative transmitted a letter to plaintiff’s counsel confirming their agreement.

On April 7, 1986, defendant filed a motion to dismiss the action for lack of prosecution pursuant to Code of Civil Procedure section 583.310. Defendant maintained: “The five…