Nassif

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. 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. When this motion was denied,…