dissenting:
I must respectfully dissent from that part of the majority opinion pertaining to A.R.S. § 12-504(A), for the reasons set forth in Flynn v. Cornoyer-Hedrick, et al., 160 Ariz. 187, 772 P.2d 10 (1988).
The purpose underlying the enactment of A.R.S. § 12-504(A), as enunciated by our state supreme court in Hosogai v. Kadota, 145 Ariz. 227, 700 P.2d 1327 (1985), was to relieve a plaintiff from the effect of a dismissal resulting from procedural impediments, softening the impact of technical rules which might otherwise prevent good faith litigants from having their day in court. It would not be proper to allow 'plaintiffs relief from their own inaction resulting in dismissal for failure or neglect to timely prosecute a claim. The statute was intended not to serve as a refuge for the negligent, but as an aid to the diligent.
Moreover, the majority opinion, in effect, shifts the burden of demonstrating prejudice to the defendant. Since prejudice would always exist as to a plaintiff unable to refile, the consequence of the majority opinion is to grant plaintiffs a presumptive right to refile. This result is inconsistent with the language of the statute, which clearly provides for discretion in situations where plaintiffs have not diligently prosecuted their cases. It is essential that a trial court determine whether, through the lapse of time, the cause of action has been rendered difficult or impossible to defend.
In addition, I would remand for a further hearing, providing defendants the opportunity to make a countervailing case pursu*203ant to the standard established by the majority decision.