Nassif v. Municipal Court

Opinion

HOLLENHORST, J.

This is a purported appeal from a judgment denying a petition for writ of mandate to compel the municipal court to dismiss an action for failure to prosecute within five years. Appellant (Nassif) contends that, when two actions have been filed, the five-year period runs from the filing of the first complaint in the first action and accordingly the court erred in denying his motion to dismiss. As we explain, we reluctantly disagree.

Facts

Real party in interest, Thomas Depner (Depner), filed an action against Nassif in June of 1981 for breach of written lease (C-6932). This action was dismissed on February 20, 1985, for failure to bring to trial within three years. On March 4, 1985, Depner filed a second suit for breach of written lease. The second action appears to seek damages for at least some of the same breaches as alleged in the first complaint.

On January 14, 1988, appellant moved to dismiss the second action on the grounds that Depner had failed to prosecute his action within five years.

1

Nassif contended the five-year period under Code of Civil Procedure section 583.310 runs from the filing of the complaint in the first action.

2

[1297]

When this motion was denied, Nassif filed a petition for writ of mandate in the superior court to compel the municipal court to dismiss the action for failure to prosecute. The petition was denied and Nassif filed the instant appeal.

Appealability

Section 904.1, subdivision (a) specifically states a judgment granting or denying a petition for writ of mandate directed to a municipal court which relates to a matter pending in the municipal court is not appealable. However, such a judgment is reviewable in this court’s discretion upon a petition for an extraordinary writ. It is clear Nassif s appeal is not proper and must be dismissed. However, because the case appears to involve a novel interpretation of the dismissal statutes and no one has objected to our reviewing the matter, we will treat the appeal as a petition for extraordinary relief.