Hill

Defendant and appellant Duke Bingham, Jr. (Bingham), appeals from a judgment in favor of plaintiff and respondent Joe Hill (Hill).

The trial court erred in granting Hill’s motion for reconsideration because Hill’s failure to act diligently to bring the action to trial within five years precludes him from benefiting from any exceptions which otherwise would have afforded relief from dismissal. Because the statutory period had run, the trial court was without jurisdiction thereafter to try the case. The judgment therefore is reversed.

Factual and Procedural Background

On December 20, 1978, Hill filed a complaint against Bingham and one Chris Voyatzis (Voyatzis), doing business as Chris’ Horseshoe Bar. In his complaint, Hill sought damages for an alleged assault and battery committed by Bingham.

Bingham filed an answer on February 5, 1979, denying Hill’s allegations and raising self-defense as an affirmative defense. During 1979 and 1980, all parties undertook routine discovery. An at-issue memorandum was filed June 2, 1982.

On October 7, 1982, Hill gave Bingham notice of a mandatory settlement conference set for January 25, 1983, and a trial date of February 17,…