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Big Bear Municipal Water District v. Superior Court of San Bernardino County

February 20, 1969

BIG BEAR MUNICIPAL WATER DISTRICT, PETITIONER,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, RESPONDENT; SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT ET AL., REAL PARTIES IN INTEREST



PROCEEDING in mandamus to compel a superior court to dismiss an eminent domain proceeding and to vacate an order barring an attorney from further participation in the action.

Tamura, J. McCabe, P. J., and Kerrigan, J., concurred.

Tamura

Petitioner, Big Bear Municipal Water District (Big Bear District) seeks a writ of mandate to compel the superior court (1) to dismiss an eminent domain action instituted by San Bernardino Valley Municipal Water District (Valley District) on the ground that summons was not returned within three years as required by section 581a of the Code of Civil Procedure,*fn1 and (2) to vacate an order barring Mr. Tobin, attorney for Big Bear District, from further participation in the Valley District eminent domain action.*fn2

The following is a chronology of the events leading to the present petition insofar as it seeks to compel dismissal of the Valley District action:

On April 6, 1962, Valley District filed an eminent domain action to condemn certain properties owned by the Bear Valley Mutual Water Company (Water Company). In the court below all parties assumed that the properties sought to be condemned included Big Bear Lake, but at the hearing on the present petition it appeared that the legal description did not include the lake. Summons was issued but return thereon was never made. On December 6, 1963, and again on March 24, 1965, Valley District and Water Company, through their respective attorneys, filed written stipulations for dismissal of the action as to portions of the properties sought to be condemned.

On June 30, 1966, Big Bear District, which had filed a subsequent eminent domain action seeking to condemn Big Bear Lake, was permitted to intervene in the Valley District action for the limited purpose of making a motion to dismiss pursuant to the provisions of section 581a.

On July 7, 1966, Water Company filed a general demurrer to Valley District's complaint.

On July 14, 1966, Valley District and Water Company entered into and filed a written stipulation waiving the provisions of section 581a and agreeing that the time for the issuance, service and return of summons be extended to December 31, 1966.

On August 12, 1966, its demurrer having been theretofore overruled, Water Company filed its answer to the complaint in eminent domain.

Meanwhile Big Bear District filed an amended notice of motion to dismiss Valley District's action by requesting the court to invoke its inherent discretionary power to dismiss for failure to prosecute with due diligence.

The motion to dismiss was heard and submitted on August 12, 1966, and was subsequently denied.

Mandamus is an appropriate remedy to obtain review of an order denying a motion to dismiss. (Perry v. Magneson, 207 Cal. 617, 620 [279 P. 650]; Coates Capitol Corp. v. Superior Court, 251 Cal. App. 2d 125, 127 [59 Cal. Rptr. 231]; Rio Del Mar, Country Club, Inc. v. Superior ...


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