Mertle

On its petition for rehearing the respondent hospital urges that our decision conflicts with City of Industry v. Gordon (Nov. 30, 1972) 29 Cal.App.3d 90 [ 105 Cal.Rptr. 206 ], where a condemnation action was dismissed for failure to bring it to trial within five years. (See Code Civ. Proc., § 583, subd. (b).) The Court of Appeal found no implied voluntary abandonment under section 1255a since “the uncontradicted declarations filed in opposition to appellants’ motion to dismiss clearly establish that respondent had no intention of voluntarily abandoning its action or cause.” (P. 94.) In the case at bench the evidence conclusively establishes an intent to voluntarily abandon the action before the hospital’s right of appeal had been exhausted. (See Southern Public Utility Dist. v. Silva, 47 Cal.2d 163, 165 [ 301 P.2d 841 ].) We observe no substantial conflict.

Respondent’s petition for a hearing by the Supreme Court was denied May 23, 1973.

*351 Opinion

The appeal before us is taken from an order in a condemnation action brought by plaintiff Alta Bates Hospital denying defendant Florence Mertle certain “litigation costs,” i.e., her attorney’s and appraiser’s fees, under Code of Civil Procedure section 1255a.

Section 1255a, subdivision (a), states; “The plaintiff [in a condemnation action] may abandon the proceeding at any time after the filing of the complaint and before the expiration of 30 days after final judgment, by serving on defendants and filing in court a written notice of such abandonment; and failure to comply with Section 1251 of this code [requiring payment of the assessed sum within 30 days after final judgment] shall constitute an, implied abandonment of the proceeding.”

Subdivision (c) of the section provides, as relevant, that upon such an abandonment defendants shall be awarded “their costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and during trial and reasonable attorney fees.”

It is now settled law that abandonment of a condemnation action under section 1255a may be either express or implied. (Mountain View Union High School District v.…