Anastasio v. Smokehouse Broiler, Inc.

Opinion

STEIN, J. Stanley Anastasio, executor of the estate of Yolanda Anastasio, appeals from a judgment dismissing her cross-complaint against Smokehouse Broiler, Inc. (hereafter Smokehouse), for insurance proceeds recovered by Smokehouse for damage to a building it leased from Yolanda Anastasio. The sole issue on appeal is whether the court is precluded from dismissing an action pursuant to Code of Civil Procedure section 583.360 after the jury has been sworn.

Facts1

Smokehouse originally filed a complaint against its landlord, Yolanda Anastasio, for damages caused by a fire at the premises Smokehouse leased. On May 20, 1976, Anastasio filed a cross-complaint in San Francisco County Superior Court, in civil case No. 697602, against Smokehouse and several insurance companies who allegedly insured Smokehouse or Anastasio. The [488]complaint alleged a cause of action for abuse of process against Smokehouse and bad faith refusal to pay a claim against the insurance companies. The cross-complaint was amended on November 3, 1976, to add several “Doe” defendants.

On October 10, 1980, Anastasio filed civil case No. 772373 against Smokehouse for structural damage allegedly done by Smokehouse during its tenancy. Civil case Nos. 697602 and 772373 were consolidated at some unspecified date by motion of Smokehouse. Also at some unspecified date, the court dismissed Smokehouse’s complaint in case No. 697602 for failure to bring it to trial within five years. The remainder of the consolidated actions went to trial in February of 1986. Yolanda Anastasio died during the proceedings and her estate was substituted.

After the jury was sworn, Smokehouse moved to dismiss Anastasio’s cross-complaint in case No. 697602, on the ground that it, like the original complaint in that action, had not been brought to trial within the five-year period required by California Code of Civil Procedure section 583.310. Counsel for Anastasio acknowledged that, “it is true that it is more than five years since the date the cross-complaint was filed, . . .” Anastasio’s counsel opposed the motion to dismiss solely on the ground that, “I do not agree that once the trial is commenced, . . . that one can make such a motion.” The court granted the motion.

The remainder of the case went to trial and resulted in a verdict for Anastasio in the amount of $1,500. Anastasio moved for a new trial. The motion was denied on April 30, 1986. Anastasio then filed a notice of appeal.