## Facts

- Carol A. Nye sued her automobile insurer, 20th Century Insurance Company, alleging improper handling of a claim arising from an April 1984 auto accident and refusal to replace a damaged engine with a new one.
- Nye filed the complaint on September 12, 1984; after demurrer proceedings, 20th Century answered on January 17, 1985.
- The parties conducted limited discovery, with the last discovery completed by February 1986.
- Nye did not file an at-issue memorandum until August 24, 1987, about 2.5 years after the answer.
- On October 11, 1988, 20th Century moved for summary judgment/adjudication; the trial court ruled on November 9, 1988.
- On August 2, 1989, Nye’s counsel contacted the court clerk, learned no status conference was set, and that a conference was unlikely before the five-year anniversary (September 12, 1989).
- After the insurer declined to stipulate to extend time, Nye moved on August 4, 1989 to specially set the case for trial on shortened time before the five-year date.
- The trial court heard Nye’s motion and a defense motion to dismiss for failure to prosecute under Cal. Code Civ. Proc. § 583.410, denied special setting, and granted dismissal (orders reissued on reconsideration; formal dismissal entered September 12, 1989).

## Issues

1. Whether the trial court abused its discretion under Cal. Code Civ. Proc. § 583.410 by dismissing the action for failure to prosecute.
2. Whether the trial court abused its discretion by denying Nye’s late motion to specially set the case for trial shortly before the five-year period in § 583.310 expired.

## Decision

- The Court of Appeal affirmed the dismissal.
- The court held the trial court acted within its discretion in dismissing under § 583.410 based on plaintiff-attributable delay.
- The court held denial of the last-minute motion to specially set the case for trial was not an abuse of discretion.

## Legal Principles

- Discretionary dismissal for delay in prosecution under Cal. Code Civ. Proc. § 583.410 is reviewed for abuse of discretion, considering the case’s overall prosecution history and relevant court-administration standards.
- The plaintiff bears the primary duty to prosecute an action with reasonable diligence and to take timely steps to bring the case to trial; this responsibility is not shifted to court calendaring practices.
- Substantial periods of plaintiff inactivity and unexplained delay after joinder of issues support discretionary dismissal.
- A late request to specially set trial near the five-year deadline does not cure earlier lack of diligence and does not bar discretionary dismissal.

## Conclusion

The Court of Appeal upheld a discretionary failure-to-prosecute dismissal where the plaintiff allowed lengthy inactivity after early discovery, waited years to place the matter at issue, and sought an expedited trial setting only weeks before the five-year mark, leaving the trial court free to deny special setting and dismiss under § 583.410.


Nye v. 20th Century Ins. Co., 225 Cal. App. 3d 1041, 275 Cal. Rptr. 319 (Ct. App. 1990)