Cohen

Plaintiff and appellant Meydad Cohen (Cohen) appeals an order dismissing his personal injury action against defendant and respondent Hughes Markets, Inc. (Hughes) for lack of prosecution.

The issue presented is whether the trial court’s ruling constituted an abuse of discretion.

We conclude the trial court erred in dismissing the action for lack of prosecution because an action which is less than two years old is not subject to dismissal on that basis. (§ 583.420, subd. (a)(2)(B); rule 372.) Further, the mere fact Cohen was not present in court when the matter was called for trial did not warrant dismissal inasmuch as Cohen’s counsel was present, a jury had to be selected, and Cohen was in transit and would have arrived from overseas by the time his presence as a witness was required.

The order of dismissal therefore is reversed and the matter is remanded for trial.

Factual and Procedural Background

On October 23, 1991, Cohen, an Israeli tourist, allegedly slipped and fell at a Hughes Market in Studio City. On November 19, 1991, Cohen filed a negligence action against Hughes. Hughes denied the allegations and asserted various affirmative defenses. Discovery…