I dissent.
The trial court, in my view, violated Wilson’s due process rights (Cal. Const., art. I, § 7) by dismissing his action on its own motion without prior notice of its intent to do so.
It is well settled that notice is a fundamental aspect of due process. The United States Supreme Court has long since explained that: “Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.” (Lambert v. California (1957) 355 U.S. 225, 228 [2 L.Ed.2d 228, 231, 78 S.Ct. 240].)
Forfeiture of one’s day in court, without notice, effectively denies an individual’s due process right of access to the courts. (See generally Payne v. Superior Court (1976) 17 Cal.3d 908, 914 [132 Cal.Rptr. 405, 553 P.2d 565] [due process right of access to court extends beyond criminal cases to civil matters as well].) Though the remedy of appeal is preserved on discretionary dismissal (majority opn., ante, at p. 558), it is illusory at best. “The exercise of the trial court’s discretion will be disturbed only for clear abuse.” (Italics added.) (Denham v. Superior Court (1970) 2 Cal.3d 557, *564564 [86 Cal.Rptr. 65, 468 P.2d 193].) This required showing presents a harsh barrier to winning reversal on appellate review. Thus, appeal is not a realistic remedy for a party precluded from litigating the merits in the court below. Notice is essential to insure that the plaintiff has been accorded full due process of law.
In the case at bench, the constitutional issue of due process is intertwined with that involving statutory and regulatory interpretation. The language of Code of Civil Procedure section 583, subdivision (a) casts doubt on the majority’s conclusion that California Rules of Court, rule 203.5(a) is inapplicable in this case. Section 583, subdivision (a) specifies that, in exercising its discretion to dismiss for lack of prosecution, a trial court must act “in accordance with rules adopted by the Judicial Council.” It is undisputed that either the court or the defendant may move for dismissal. The statute’s failure to draw any distinction between court-initiated and defendant-initiated motions for dismissal supports a conclusion that the notice required by rule 203.5(a), is applicable to both.
The majority further attempts to distinguish rule 203.5(a) by emphasizing that its purpose, allowing the plaintiff time to prepare and set a trial date, makes it inapplicable to cases, such as this, where the five-year deadline will expire within the forty-five-day notice period. Not only does this assertion overlook the fact that the trial court has the power to reduce the notice period when necessary (Code Civ. Proc., § 1005), but it ignores the underlying constitutional purpose of notice as well.
Even if the trial court had proceeded on the basis of its inherent power to dismiss, rather than its statutory authority under Code of Civil Procedure section 583, subdivision (a), thus avoiding the rule 203.5(a) problem entirely, it still would have been required to provide notice prior to taking action. “[W]here dismissal rests in the discretion of the court the plaintiff should be given notice of the motion to dismiss and an opportunity to be heard thereon.” (Harris v. Board of Education (1957) 152 Cal.App.2d 677, 683 [313 P.2d 212].)
Contrary to the majority’s suggestion, Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406 [134 Cal.Rptr. 402, 556 P.2d 764], is not dispositive on the issue of notice. We did not address notice in that case. Moreover, the majority’s reliance on Sanborn is lukewarm at best. After reasoning that Sanborn stands for the principle that no notice is required on discretionary dismissal on a court’s own motion (majority opn. ante, at p. 560), the majority concludes that the notice requirement was either satisfied or waived in the instant case. Thus, the majority appears to concede that notice is required prior to dismissal for lack of prosecution on a court’s own motion. *565The relevant question, then, is whether Wilson received such notice or waived his right to it.
That Wilson must have known that his diligence in prosecuting the action would be at issue on his motion to set for trial is not an acceptable substitute for notice that the court intended to dismiss the action on its own motion. Neither is the fact that hearings on both motions would address, among other factors, the plaintiff’s diligence in prosecuting his case. The gravity of the potential loss, dismissal of one’s cause of action, demands that the plaintiff be fully apprised of the court’s intended action.
In Weeks v. Roberts (1968) 68 Cal.2d 802 [69 Cal.Rptr. 305, 442 P.2d 361],1 we issued a warning to trial courts to proceed with extreme caution before dismissing an action for want of prosecution:
“ ‘[C]ourts exist primarily to afford a forum for the settlement of litigable matters between disputing parties .... [Citation.] To deny the forum upon the ground that one or the other party has sacrificed it because the procedure has itself been too slow does not appeal to a mature sense of justice. Only the most compelling reasons would support a surrender of this necessary and valued right of resolution for any such cause.’ [Citation.] The harshness upon plaintiffs who are seldom personally responsible for delays in our system of representative litigation is manifest. ” (Italics added.) (Id. at pp. 806-807.)
The majority’s reliance on the defendant’s pleadings and on the fact that motions to set an early trial date and motions to dismiss generate related factual inquiries, weakens the Weeks court concern for safeguarding the plaintiff’s right of access to a forum. Although the defendant here identified Wilson’s diligence as an issue in its written opposition to the motion for an early setting, the defendant did not move for dismissal. Thus, Wilson knew that his diligence in prosecuting the case would be questioned at the hearing on his motion, but did not necessarily know that he risked immediate dismissal if his motion was unsuccessful. The due process protections of notice and an opportunity for hearing, coupled with public policy, implicit in the Weeks warning, favoring disposal of litigation on the merits, militates against the majority’s conclusion that Wilson had notice of the court’s intent to dismiss on its own motion.
*566The suggestion that Wilson waived his right to notice by appearing at the hearing on his motion to specially set (majority opn. ante, at pp. 561-562) has no basis in decisional law. Farrar v. McCormick (1972) 25 Cal.App.3d 701 [102 Cal.Rptr. 190], upon which the majority relies for this theory, is completely distinguishable. Farrar involved a plaintiff’s appearance at a hearing where both the plaintiff’s motion to specially set for trial and the defendant’s motion to dismiss were heard together. The plaintiff had received notice of the motion to dismiss and had appeared to oppose the motion. (Id. at p. 705.) In the instant case, the plaintiff appeared solely in support of his motion to set an early trial date. We cannot construe his appearance as acquiescence in the motion to dismiss.
The majority’s conclusion is particularly unfortunate inasmuch as a practical and constitutional solution is at hand. The plaintiff’s due process right to notice can be reconciled with the competing public policy interests favoring litigation on the merits on the one hand, and disfavoring unreasonable delays in litigation on the other. Kunzler v. Karde (1980) 109 Cal.App.3d 683 [167 Cal.Rptr. 425] points the way. There, the Court of Appeal affirmed the trial court’s dismissal on its own motion after providing the plaintiff with 29 days notice of its intent to do so. The trial judge granted the plaintiff’s motion to specially set for trial and then scheduled a noticed hearing to dismiss on its own motion and scheduled it prior to the trial date. The trial court appropriately reduced the notice period pursuant to Code of Civil Procedure section 1005. Though due process rights to notice and an opportunity to be heard may be abrogated under “extraordinary circumstances” (Fuentes v. Shevin (1972) 407 U.S. 67, 90 [32 L.Ed.2d 556, 575, 92 S.Ct. 1983]), such circumstances do not present themselves here. Kunzler provides a model by which all interests can be protected.
I conclude that the trial court abused its discretion in dismissing Wilson’s action.
Bird, C. J., concurred.
The majority relies on Weeks for the proposition that the trial court acted properly in dismissing on its own motion after deciding that such dismissal was warranted. (Accord Sanborn, supra, at p. 419.) While it is unquestioned that the court has such power, Weeks does not support the conclusion that such power can be exercised without prior notice to the plaintiff. In fact, Weeks is silent on the issue of notice (as is Sanborn). Due process, of course, generally requires that dismissal be preceded by notice and an opportunity for hearing.