Hendrix

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). 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…