Weeks

I dissent. Under the California Rules of Court (rule 223(a)) the control of the master trial calendar is under the supervision of the presiding judge or a judge designated for that purpose. In a metropolitan court of the magnitude of Los Angeles County this is an herculean task and it is vital to an efficient operation of the calendar that a reasonable discretion be vested in and exercised by the judge in control thereof. (See Bass v. Braun, 178 Cal.App.2d 744, 750 [ 3 Cal. Rptr. 212 ].)

In this case the master calendar judge made findings that plaintiff’s assignor, who was an experienced Los Angeles trial attorney, “did not act with due diligence to bring said action to trial.” There is substantial evidence to support this finding. The judge also concluded that “none of the exceptions for the tolling of said five-year period ... is present and no other legal justification for failing to bring said action to trial exists. ’ ’ I believe the record justifies this conclusion. Finally, it must be borne in mind that “Every intendment and presumption not inconsistent with the record must be indulged in to support the action of the trial court.” (Smith v. Wiget, 75 Cal.App.2d 591, 594 […

Plaintiff Clarice P. Weeks appeals from a judgment of dismissal entered pursuant to section 583 of the Code of Civil Procedure for failure to bring an action to trial within five years from the date of filing.

Plaintiff brought this action, as assignee for collection, to recover for legal services rendered to defendant Norman C. Roberts in the amount of $35,000. The complaint was filed and summons issued on January 31, 1961. Two and one-half years later, on August 8, 1963, defendant was served. Defendant answered within two weeks, and plaintiff filed a memorandum to set. Because plaintiff subsequently failed to file a certificate of readiness, the cause was dropped from the calendar in March 1965. On October 13, 1965, defendant served and filed interrogatories directed to plaintiff’s assignor.

With the bar of the five-year statute imminent, plaintiff moved on November 12, 1965, to set pretrial and trial prior to expiration on January 31, 1966. When the motion came on for hearing on November 23 plaintiff’s assignor had failed to answer the interrogatories of October 13 and plaintiff had failed to file a memorandum to set and certificate of readiness as then required by the rules…