Herring

— Plaintiff John Herring appeals from the trial court’s order of dismissal under Code of Civil Procedure section 583, subdivision (b), for failure to bring the case to trial within five years of filing. We reverse the order.

Facts

On July 26, 1973, 13-year-old Robin Herring was seriously injured in an automobile accident in Trinity County. A complaint for $200,000 in damages was filed in Santa Clara County by her guardian, John Herring (plaintiff), on July 25, 1974. The complaint named Margaret Lavina Peterson as a defendant. On January 26, 1977, Peterson (defendant) moved to change venue under Code of Civil Procedure section 397, subdivision 3, for the convenience of witnesses; the case was transferred to Trinity County on March 24, 1977. Defendant, who had tendered the case to her insurer, filed an answer on June 10, 1977.

Defendant died in May 1977. Apparently her estate was never probated; nor was a personal representative appointed. In April 1979 plaintiff made an offer to compromise for $25,000, the limits of defendant’s insurance policy coverage. The offer was apparently rejected and plaintiff filed an at-issue memorandum declaring that all necessary parties had…