Weeks v. Roberts

BURKE, J.

I dissent. Under the California Rules of Court (rule 223(a)) the control of the master trial calendar is under the supervision of the presiding judge or a judge designated for that purpose. In a metropolitan court of the magnitude of Los Angeles County this is an herculean task and it is vital to an efficient operation of the calendar that a reasonable discretion be vested in and exercised by the judge in control thereof. (See Bass v. Braun, 178 Cal.App.2d 744, 750 [3 Cal. Rptr. 212].)

In this case the master calendar judge made findings that plaintiff’s assignor, who was an experienced Los Angeles trial attorney, “did not act with due diligence to bring said action to trial.” There is substantial evidence to support this finding. The judge also concluded that “none of the exceptions for the tolling of said five-year period ... is present and no other legal justification for failing to bring said action to trial exists. ’ ’ I believe the record justifies this conclusion. Finally, it must be borne in mind that “Every intendment and presumption not inconsistent with the record must be indulged in to support the action of the trial court.” (Smith v. Wiget, 75 Cal.App.2d 591, 594 [171 P.2d 563], quoted with approval in Bass v. Braun, supra, at p. 750.)

I conclude that the master calendar judge did not abuse his discretion in granting defendant’s motion to strike the ease from the master civil calendar. It therefore follows that it was not error for him to dismiss the ease.

Traynor, C. J., and MeComb, J., concurred.

Respondent’s petition for a rehearing was denied July 31, 1968. MeComb, J., and Burke, J., were of the opinion that the petition should be granted.