Opinion
Plаintiff’s personal injury complaint against the County of Kern (hereafter the County), Delano Union Elementary School *306 District (hereafter the District) and James G. Molica (hereafter Molica) was dismissed for lack of prosecution under Code of Civil Procedure section 583, subdivision (a), the discretionary dismissal statute and on the ground of failure to allow discovery, pursuant to Code of Civil Procedure sections 2030 and 2034, subdivision (d).
Facts
A chronоlogical statement of events pertinent to the case follows: November 6, 1975—Minor appellant, Olga Garza, filed a complaint for damages arising out of a November 14, 1974, collision involving a school bus on which the minor was riding.
March 12, 1976—Counsel for the Delano Union Elementary School District served notice on appellant’s attorney that depositions of the minor and her parents were set for April 9, 1976.
March 15, 1976—By this dаte all defendants had answered the complaint.
March 22, 1976—Plaintiff filed an at issue memorandum.
March 24, 1976—The District’s counsel sent a letter to plaintiff’s attorney advising a doctor’s examination for the minor was scheduled for May 5, 1976.
March 25, 1976—The District served interrogatories on plaintiff’s attorney.
April 7, 1976—Appellant’s counsel telephoned the District’s counsel and advised him that the minor had returned to Mexico and would not attend the deposition or doctor appointment. He stated that he had written Mr. Garza asking him to return to California and would advise the District’s attorney when the Garzas returned. The District was billed $50 for the cancelled doctor appointment.
May 19, 1976—Appellant’s counsel advised the District’s counsel by telephone that he had contacted Mr. Garza and requested the minor be returned to California for deposition and examination. He promised to contact defense counsel upon the minor’s return. The District’s counsel granted plaintiff an extension to July 15, 1976, to answer interrogatories. The minor did not return to California.
*307 July 22, 1976—The District and plaintiff each granted the other an open extension to answer interrogatories previously served on each other.
August 18, 1976—A trial setting conference was set by the Superior Court of Kern County for October 18, 1976.
October 15, 1976—Appellant’s attоrney contacted the District’s attorney and stated he had again contacted his client and was attempting to get her back to California. He requested the District’s attorney appear before the court for plaintiff to request a trial date at the earliest possible and most convenient date to court and counsel.
October 21, 1976—Notice was mailed to counsel that the trial date was set for May 2, 1977.
November 19, 1976—The District noticed the deposition of the minor for January 4, 1977, and scheduled a doctor’s examination for the minor on January 19, 1977.
January 5, 1977—The District’s counsel received a letter from minor’s counsel confirming a telephone call cancelling the January 4, 1977, deposition and rescheduling it for February 8, 1977.
January 17, 1977—The minor’s appointment for defense medical examination was cancelled. Subsequеntly defense counsel again received a $50 bill from the doctor for the cancellation.
February 3, 1977—Plaintiffs attorney notified the District’s counsel by telephone and letter that he was still unable to contact his client and requested a cancellation of the deposition for February 8, 1977. The minor’s counsel also requested the matter be taken off calendar until “we are able to locate our cliеnt.” The District cancelled the deposition.
March 11, 1977—A stipulation by all parties was filed. It provided that the trial date of May 2, 1977, “be vacated, and a new trial be reset by stipulation of the parties herein.”
November 28, 1977—Molica’s attorney filed a notice of motion to dismiss the complaint based on Code of Civil Procedure sections 583, subdivision (a), and 2034 in that the case had not been brought to trial within two years and plaintiff had not appeared for deposition.
*308 December 19, 1977—The District filed notice of motion to strike the complaint and for other sanctions because of plaintiff’s failure to answer interrogatories, failure to appear for deposition and failure to appear for doctor’s examination.
December 21, 1977—The District filed notice of motion to dismiss the complaint for lack of prosecution under Code of Civil Procedure section 583, subdivision (a).
December 21, 1977—Rosa Garcia, an employee of plaintiff’s counsel, telephoned and spoke to the minor in Nuevo Leon, Mexico. Garza said she was residing with her parents in Mexico, could not financially afford to come to California and was under a doctor’s care for injuries sustained in the accident of November 14, 1974.
January 3, 1978—Plaintiff’s counsel filed opposition to the motions to dismiss and for sanctions. In support of his opposition, counsel set forth the following points: (1) the lawsuit was filed by offices of his firm in Riverside, California, and then transferred to counsel’s office in San Francisco, causing some delay; (2) counsel’s law firm dissolved December 31, 1976, and was reconstituted which imposed a heavy workload on counsel; (3) counsel’s law firm had extreme difficulty locating the minor; depositions were continued because counsel could not locate or communicate with plaintiff; the minor and her guardian ad litem are Spanish-speaking and “may not be aware of the importance of keeping counsel informed of their whereabouts”; (4) counsel’s law firm employed an investigator to locate the minor; her residence was ascertained in Mexico (giving address and tеlephone number); and (5) plaintiff desires to proceed with her lawsuit; her nonavailability was not wilful.
January 6, 1978—Motions to dismiss and for sanctions were heard by the court. Minor’s counsel requested 10 days leave to file an at issue memorandum to resolve the issue of further delays. The court denied the request. The motion to dismiss for lack of discovery was dropped by respondent Molica’s attorney. Argument on respondent District’s mоtion to dismiss for lack of discovery was heard. Appellant’s counsel contended that since respondent District’s counsel had acquiesced in continuing discovery until appellant should return to the state that appellant’s conduct should not be viewed as a wilful failure to comply with discovery. He cited the fact that there had been no motion to compel appellant to attend a physicаl exam and no motion to compel answers to interrogatories, and all parties stipulated to continue the case, which he *309 argued affirmed defendant’s acquiescence in the continuance of discovery.
Counsel for the County appeared and, upon stipulation by plaintiff’s attorney, joined in the motions for dismissal. The record is not clear as to whether the motion was on one or both grounds.
Thе court granted the motions to dismiss upon both grounds, failure to prosecute and failure to allow discovery.
Discussion
The granting of the motion to dismiss under the two-year statute for lack of prosecution as to respondents Molica, Delano Union Elementary School District and Kern County was an abuse of discretion.
Code of Civil Procedure section 583, subdivision (a), provides as follows: “The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. The procedure for obtaining such dismissal shall be in accordance with rules adopted by the Judicial Council.” 1
Rule 203.5, subdivision (e), California Rules of Court, provides as follows: “In ruling on the motion the court shall consider all matters relevant to a proper determination of the motion, including the court’s file in the case and the affidavits and suрporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; the extent to which the parties engaged in any settlement negotiations or discussions; the diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature *310 and complexity of the case; the law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial; whether the interests of justice are best served by dismissal or trial of the case or by imposing conditions on its dismissal or trial; and any other fact or circumstance relevant to a fair determination of the issue.”
In the early situations involving application of the discretionary dismissal statute orders granting dismissal were often reversed, pursuant to the policy favoring trial on the merits. Later appellate courts began to emphasize the policy of preventing unreasonable delay in litigation and the trial court’s duty to carry out this policy. “As a result, ‘discretionary’ dismissal took on a
mandatory
character when the plaintiff failed to make a sufficient showing of excuse, and
mandamus issued
to compel dismissal.” (4 Witkin, Cal. Procedure (2d ed. 1971) Refusal to Dismiss, § 88, p. 2749.) (Italics in original.) This strict approach was adopted in
Black Bros. Co.
v.
Superior Court
(1968)
However, “mandatory” discretion was abandoned and
Black Bros. Co.
was repudiated by the Supreme Court in
Denham
v.
Superior Court
(1970)
The
Denham
rule has been followed in later decisions, e.g.,
Martindale
v.
Superior Court
(1970)
In
City of Los Angeles
v.
Gleneagle Dev. Co.
(1976)
In the instant case, respondent Molica argued his prejudice arose from inability to depose appellant. The extent of the prejudice was speculative.
Respondent District did not cite any prejudice.
Appellant’s counsel has made the following showing in her attempt to establish excusable delay: (1) language differences; (2) difficulty locating client; (3) poverty of appellant; (4) prosecutorial problems—press of business, change in firm; (5) open extension to answer interrogatories by the District; and (6) stipulation vacating trial date and agreement to set date in future by stipulation.
In
Rathbun
v.
Superior Court, supra,
In
Woolfson
v.
Personal Travel Service, Inc.
(1971)
The case of
Lowe
v.
Thomas
(1970)
Change of attorneys and heavy workload were cited as factors to be. considered by a trial court when faced with a dismissal action in
United Farm Workers National Union
v.
International Brotherhood of Teamsters
(1978)
The effect of open-ended stipulations on the determination of motions to dismiss has been construed in
Meraia
v.
McCann
(1978)
The court in
Regan Distributors, Inc.
v.
Yurosek & Son, Inc.
(1979)
This line of decisions is compelling in light of twо factors in the present case. First is the open extension of time for filing answers to interrogatories; second, and more important, is the stipulation dropping the trial date and agreement to set the new trial date by stipulation of the parties. The import of each of these factors is to dampen any sense of urgency in bringing the case to trial.
A mere stipulation to drop the trial date would imply nothing more than the parties agree not to go to trial on that particular date. The provision that the case would be reset by stipulation of the parties is significant. It implies that the usual manner of setting whereby one party files his request for trial date will not be followed. Instead, it implies that the parties will agree and jointly act in obtaining the date for trial.
A fair interpretation of the stipulation would dictate that befоre any party made motion to dismiss the case for lack of prosecution, he notify the other parties of his intention to so proceed if the case is not promptly set for trial.
The stipulation invoked or rather lulled a sense of security against dismissal. The full import of the stipulation was to excuse appellant from the burden of diligent prosecution she otherwise bore.
Considering all of the circumstances, there was an abuse of discretion in dismissing the case for lack of prosecution.
The granting of the motion to dismiss for wilful failure to allow discovery as to respondent Delano Union Elementary School District was an abuse of discretion.
Respondent District was also granted a motion to dismiss under Code of Civil Procedure sections 2030 and 2034, subdivision (d), for appellant’s failure to permit discovery (e.g., failure to answer interrogatories and failure to appear at deposition and medical examination). No court order had been obtained by respondents prior to its motion for dismissal.
*314 In each of the cases cited in respondent’s brief a court order had been obtained due to plaintiff’s failure to respond to discovery. Dismissal followed plaintiff’s failure to comply with the court order.
In deciding whether an abuse оf discretion occurred in the instant case, we are mindful that a court order compelling answers or submission to other discovery is not required before granting a dismissal. However, “. . . whether a sanction short of dismissal or default would be appropriate to the dereliction” is a factor to be considered by a trial judge in exercising his discretion.
(Deyo
v.
Kilbourne
(1978)
Kahn
v.
Kahn
(1977)
It is notable that in all of the above cited cases in which a dismissal was upheld, a court order for answers or further answers had not been complied with.
Appellant argued before the trial court that throughout the proceedings defense attorneys acquiesced in appellant’s attorney’s request for the cancellation of deposition and physical examination of appellant until her return to California. Further, they argued that because of defense counsel’s acquiescence, this should not be construed as a wilful failure to comply with discovery.
In reaching its decision, the trial court noted the conduct of the District, and stated that it appeared to constitute a partial waiver. This court notes that upon аppellant’s request the scheduled depositions were *315 either continued or cancelled by respondent. The record does not disclose that respondent ever informed appellant’s counsel that his request to cancel was denied or that the deposition date was firm and the minor would be expected to appear. The record disclosed that the last scheduled deposition wаs cancelled by respondent at the oral and written request of appellant’s counsel.
All matters considered, the trial court reasonably could have inferred that respondent District acquiesced in appellant’s request to defer the deposition and physical examination of appellant until her return from Mexico. A stipulation had been entered regarding interrogatories and the casе dropped from the trial calendar to be reset on stipulation.
In stating its reasoning for the dismissal, the trial court cited appellant’s failure to answer interrogatories. The court should not have given this factor any consideration due to the open time for answering which the District and appellant each gave the other.
As stated in
Scherrer
v.
Plaza Marina Coml. Corp.
(1971)
Under the facts of this case, the ultimate sanction of dismissal was too harsh. A lesser sanction should have been imposed. It appears that appellant’s attorney was requesting a conditional sanction when he was interrupted by the court and the court failed tо consider a lesser sanction: “Mr. Caldwell: Is there an alternative, that is a protective order, that the case to be subject to dismissal if they did not have physical—
The Court: I think the delay is now prejudicial as a matter of law and the motion is to be independently granted on independent grounds.
“(Whereupon the above proceedings were concluded.)”
As noted previously, prejudice was speculative.
*316 The trial court abused its discretion in dismissing for failure to comply with discovery.
The judgment is reversed.
Hopper, Acting P. J., and Hamlin, J., * concurred.
Notes
Assigned by the Chairperson of the Judicial Council.
The purpose and effect of the discretionary dismissal provision has been described as follows in
Rathbun
v.
Superior Court
(1970)
Assigned by the Chairperson of the Judicial Council.