Berry

Plaintiffs and appellants Willard S. Berry and Aubra Berry (Berrys) appeal an order granting defendant and respondent Gerald M. Weitzman’s (Weitzman) motion to dismiss on the ground the action was not brought to trial within five years.

Because the running of the five years was not automatically tolled by Weitzman’s filing of the request for trial de novo following arbitration, and the Berrys were not thereafter diligent in bringing the action to trial, the order is affirmed.

Factual and Procedural Background

A dispute arising from the Berrys’ sale of their business to Weitzman led to the Berrys’ filing a complaint against Weitzman on May 2, 1980. Weitzman cross-complained. At a mandatory settlement conference on June 12, 1984, the matter was ordered into arbitration.

Arbitration was held on October 3 and 18, 1984. On January 23, 1986, the arbitrator belatedly filed an award, which provided for the Berrys to recover $23,000 together with interest and for Weitzman to take nothing on his cross-complaint. On January 28, 1986, Weitzman filed a request for trial de novo.

A trial setting conference was scheduled for June 9, 1986, at 9 a.m. The Berrys’ attorney forgot about…