Winston

Plaintiff and appellant Scott T. Winston (Winston) appeals an order dismissing his action against defendant and respondent Lorene Woodward (Woodward) pursuant to Code of Civil Procedure sections 583.420, subd. (a)(2)(B) and 583.310.

The issue presented is whether the tolling period for judicial arbitration ended with the arbitrator’s order that the matter was not amenable to arbitration and would be restored to the civil active list, or whether the tolling period ended some seven months later, when the matter actually was restored to the civil active list.

Because Winston did not follow up to ensure a prompt restoration of the matter to the civil active list and the setting of a trial date within the five-year period, the failure to bring the matter to trial within five years was the result of Winston’s lack of diligence, rather than impossibility due to nonperformance of official duty. The order therefore is affirmed.

Factual and Procedural Background

On January 9, 1984, Winston filed suit against Woodward for breach of contract, misrepresentation and breach of quiet enjoyment. Winston pied, inter alla, that Woodward breached their contract by cancelling her listing…