Hendrix v. Hendrix

Opinion

LOW, P. J.

Plaintiff Hester Hendrix appeals from a judgment of dismissal entered after the court granted defendant Orville Hendrix, Jr.’s motion to dismiss for failure to bring a cause of action to trial within five years. (Code Civ. Proc., § 583, subd. (b).) We agree with the court below that the making of a motion

in limine

before the trial court did not constitute the beginning of a trial sufficient to take the case out of Code of Civil Procedure section 583, subdivision (b).

1

We affirm.

In her complaint filed December 27, 1978, plaintiff sought to recover real and personal property given to defendant, plaintiff’s stepson, by her husband, Orville Hendrix, Sr. On April 1, 1982, both parties, after being assigned to a trial department, met with the trial judge in her chambers to argue defendant’s motion

in limine

to exclude any evidence of Orville Hendrix, Sr. ’s incompetence. After granting defendant’s motion on the ground that the pleadings did not properly raise the issue of competency , the judge gave plaintiff an option either to proceed to trial without the evidence of incompetence or to amend her complaint and drop the case from the civil active list. Plaintiff elected to amend her complaint, and the motion to amend was granted on May 19, 1982. After the court denied defendant’s motion for rehearing, defendant filed an answer to plaintiff’s amended com

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plaint on July 29, 1983. No further action was taken until December 29, 1983, when plaintiff filed an at-issue memorandum and notice of a motion for calendar preference based on her advanced age. Plaintiff’s motion was granted on January 18, 1984, and trial was set for April 30, 1984. Defendant’s motion to dismiss under section 583, subdivision (b) was heard on March 8, 1984, and granted on April 6, 1984.

Section 583, subdivision (b) mandates dismissal by the court of an action that has not been brought to trial within five years after the date of filing. The statute “becomes operative only if the action is not brought to trial at all within the prescribed period. If the trial is commenced, the case is taken out of the statute, even though the proceedings amount only to a partial hearing.”