I join the view ably expressed by Justice Richardson that today's majority decision is contrary to prior law and contravenes the policy underlying Code of Civil Procedure section581a But the majority decision goes even further. By requiring an "unreasonable conduct" test, (ante, p. 720), it removes all substantive effect from section 581a
Code of Civil Procedure section 583, subdivision (a) provides for dismissal of actions not brought to trial within two years. When a plaintiff is guilty of unreasonable conduct in failing to bring the case to trial, dismissal under the two year statute is appropriate. (Cal. Rules of Court, rule 203.5; Sanborn v.Chronicle Pub. Co. (1976) 18 Cal.3d 406, 418-419 [134 Cal.Rptr. 402, 556 P.2d 764]; Denham v. Superior Court (1970)2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193]; Corlett v.Gordon (1980) 106 Cal.App.3d 1005, 1013 et seq. [165 Cal.Rptr. 524]; Brown v. Pacific Tel. Tel. Co. (1980)105 Cal.App.3d 482, 487 et seq. [164 Cal.Rptr. 445]; Lopez v.Larson (1979) 91 Cal.App.3d 383, 396 et seq. [153 Cal.Rptr. 912];Moore v. El Camino Hosp. Dist. *Page 729 (1978) 78 Cal.App.3d 661, 663 [144 Cal.Rptr. 314]; City of LosAngeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543 [133 Cal.Rptr. 212].)
Obviously, a case cannot be brought to trial before the defendant has been served or has appeared, and because the majority has now adopted the same test for section 581a as is applied under section 583, subdivision (a), there is no longer any need for section 581a In any case where there is an unreasonable delay in serving process for three years, dismissal is available under section 583, subdivision (a). While a difference may exist in appellate court review of orders under the two provisions, the test before the trial court is now the same. The majority opinion effectively forges the two sections into one.
Petitioner's application for a rehearing was denied, March 2, 1981. Clark, J., and Richardson, J., were of the opinion that the application should be granted. *Page 730