Monroy v. Roman Catholic Archbishop of Los Angeles

complaint for want of prosecution because of her failure to bring her action to trial within two years. (Code Civ. Proc., § 583.) On appeal plaintiff contends that her delay in bringing her action to trial was excused by reason of defendant’s delay in completing its discovery and, therefore, the trial court abused its discretion in dismissing her action.

The chronology of the case follows:

1963
27 December — plaintiff complained for damages for personal injuries, pleading that on 25 July 1963 as an invitee at defendant’s cemetery she had been injured in a slip and fall caused by defendant’s negligent upkeep of the cemetery.
1964
14 January — defendant answered, denying negligence and pleading contributory negligence and assumption of risk.
16 January — plaintiff filed a memorandum to set the cause for trial as a contested action.
2 October — the court notified counsel it had set the cause for a pretrial conference on 10 December but would remove the cause from the active list unless a certificate of readiness were filed by 30 November.
6 November — plaintiff’s counsel requested defense counsel to execute a certificate of readiness.
12 November — defense counsel refused to execute a certificate of readiness, stating that discovery had not been completed because plaiintiff had cancelled her deposition. Plaintiff did not seek to file a certificate of readiness unilaterally, as permitted by court rule.
*49430 November — the case was removed from the civil active list.
Thereafter, the defense very slowly proceeded with discovery, while plaintiff did nothing.
1965
15 October — defendant took plaintiff’s deposition.
1966
6 January — defendant served plaintiff with written interrogatories. The interrogatories were never answered.
14 July — defendant took the deposition of plaintiff’s husband.
31 October — a defense doctor examined plaintiff.
By the last date defendant’s discovery was apparently complete, for it took no further action.
1967
2 September — plaintiff requested defendant to execute a certificate of readiness and a memorandum to set.
5 September — defendant executed the certificate of readiness and the memorandum to set.
1968
23 February — plaintiff noticed a motion to set the cause for trial.
11 March — the motion to set came on for hearing and defendant advised the court it had not received answers to its interrogatories of 6 January 1966. The motion was continued.
22 May — plaintiff’s motion to reconsider the dismissal was denied.

In this chronology we find no abuse of discretion by the trial court in dismissing, the action. The burdén of showing excusable delay in bringing a case to trial rests on plaintiff. (Breckenridge v. Mason, 256 Cal.App.2d 121 [64 Cal.Rptr. 201]; Membrila v. Vonett Sales Co., 250 Cal.App.2d 299 [58 Cal.Rptr. 544].) Even if plaintiff’s delay up *495to the time of defendant’s last discovery proceeding, 31 Octoher 1966, were excusable, plaintiff did nothing for more than 15 months thereafter to bring her action to trial. No reason for that delay or for her lack of diligence was shown.

Plaintiff contends in effect that defendant’s dilatoriness excused her own, that where both sides dawdle neither should be penalized. In substance she argues that since defendant procrastinated during the earlier years of the ease, she was entitled to do the same during its later years. This argument ignores the fact that the responsibility to bring her action to trial rested on plaintiff. Had plaintiff felt defendant was delaying its discovery, she could have unilaterally moved to set the case for trial. (See rule 210, Rules for Superior Court, in effect in 1964.) Plaintiff knew from defendant’s letter of 12 November 1964 what discovery proceedings the defendant wished to undertake, and she could have made the witnesses and records available. Instead plaintiff did nothing, and herself contributed to defendant’s delay by failing to answer defendant’s interrogatories for a period of two years. We conclude that the trial court acted within its discretion in dismissing the action. (Breckenridge v. Mason, supra; Membrila v. Vonett Sales Co., supra; Black Bros. Co. v. Superior Court, 265 Cal.App.2d 501 [71 Cal.Rptr. 344]; Market-Front v. Superior Court, 271 Cal.App.2d 505 [76 Cal.Rptr. 526]; City of Los Angeles v. Superior Court, 271 Cal.App.2d 292 [76 Cal. Rptr. 256] ; Paul W. Speer, Inc. v. Superior Court, 272 Cal. App.2d 32 [77 Cal.Rptr. 152].)

The case of Weeks v. Roberts, 68 Cal.2d 802, 809 [69 Cal. Rptr. 305, 442 P.2d 361], relied on by plaintiff, dealt with an application to set an action for trial before the expiration of the mandatory five-year period within which an action must be brought to trial. In ordering the case to be set for trial the Supreme Court specifically declared that its order was made without prejudice to the exercise of the trial court’s discretionary powers to dismiss an action for want of prosecution within the two-year period of section 583.

The order is affirmed.

Wright, J., concurred.