Barth v. Amer. River HealthPro Credit Union
Plaintiff Roberta L. Barth appeals from a judgment dismissing with prejudice her action against defendant American River HealthPro Credit Union and unnamed “Doe†defendants based on Barth’s delay in prosecuting the action ( ADDIN BA xc <@st> xl 34 s ZOKPBC000001 xpl 1 l "Code Civ. Proc., § 583.410 et seq." Code Civ. Proc., § 583.410 et seq.).[1] On appeal, Barth contends the trial court lacked authority to dismiss the action with prejudice, and abused its discretion in granting the motion to dismiss because she made a credible showing of excuse for failing to serve the complaint until nearly three years had passed, because American River HealthPro Credit Union was not prejudiced. The first contention has merit: under these circumstances, the applicable statutes only allow a dismissal “without prejudice.†( ADDIN BA xc <@osdv> xl 29 s ZOKPBC000020 xpl 1 l "§§ 581, subd. (b)(4), 583.410" §§ 581, subd. (b)(4), 583.410.) We reverse the judgment and modify the order of dismissal.
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