Wehage

Tustin Plaza Partnership contends the trial court abused its discretion by dismissing its lawsuit for failure to bring the action *1561 to trial within three years after its commencement. (Code Civ. Proc., § 583.410 et seq.) 1 We affirm.

Ken and Elizabeth Wehage (Wehage) entered into a 10-year lease with Tustin’s predecessor in interest for the rental of commercial property. Two years later, on December 30, 1988, Tustin commenced the underlying action alleging Wehage’s breach, but it waited two years and eleven months to serve the complaint. Wehage answered promptly and the parties filed at-issue memoranda seven months later. The only discovery was the service of interrogatories by both parties.

On August 12, 1992, Wehage filed a motion to dismiss for failure to prosecute, alleging more than three years had passed since the action was commenced and it had neither been set for trial nor conditionally settled. Tustin opposed the motion, citing the strong policy favoring disposition of an action on its merits and alleging Wehage had also failed to move the case along.

The court granted the motion. It found no excuse for the delay and a “presumption of…

I concur in parts I, II and the result of the lead opinion. Part III is totally unnecessary, and involves a *1567 contention not made before, or considered by, the trial court. In addition, it totally misreads the 1992 amendment to Code of Civil Procedure section 473. That amendment was obviously intended to place plaintiffs who are facing a discretionary dismissal on equal footing with defendants threatened with a default judgment. In both cases a party whose attorney is solely responsible for the neglect leading to dismissal or default is entitled to relief if the attorney declares the delay in prosecuting, or responding to, the lawsuit was due to his or her neglect.

In any event the issue is not before us. My learned colleague is simply eager to be the first in print with a discussion of the amendment. The issue might be interesting in a law review or at a meeting of trial lawyers. It does not belong in this case. Bernard Witkin has labeled this form of judicial eagerness “Have opinion, need case.” (Witkin, Manual on Appellate Court Opinions (1977) § 85, p. 155. See Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1102 [ 4 Cal.Rptr.2d 874 , 824 P.2d 680 ] (conc. and dis. opn.…

Tustin Plaza Partnership contends the trial court abused its discretion by dismissing its lawsuit for failure to bring the action to trial within three years after its commencement. (Code Civ. Proc., § 583.410 et seq.) [1] We affirm.

Ken and Elizabeth Wehage (Wehage) entered into a 10-year lease with Tustin's predecessor in interest for the rental of commercial property. Two years later, on December 30, 1988, Tustin commenced the underlying action alleging Wehage's breach, but it waited two years and eleven months to serve the complaint. Wehage answered promptly and the parties filed at-issue memoranda seven months later. The only discovery was the service of interrogatories by both parties.

On August 12, 1992, Wehage filed a motion to dismiss for failure to prosecute, alleging more than three years had passed since the action was commenced and it had neither been set for trial nor conditionally settled. Tustin opposed the motion, citing the strong policy favoring disposition of an action on its merits and alleging Wehage had also failed to move the case along.

The court granted the motion. It found no excuse for the delay and a "presumption of…