Hughes

Corene Hughes appeals from an order of dismissal made under sections 583.310 and 583.360 of the Code of Civil Procedure for failure to bring the case to trial within five years. The dismissal order was entered on the court’s own motion in favor of the defendant Kimble.

We hold that section 583.340 does not require the court to exclude time during which Kimble was in default from the five years allowed to bring the case to trial, and that the allowed time passed without the case being brought to trial or otherwise concluded. We therefore affirm.

Factual and Procedural Background

Hughes filed her original complaint for breach of contract, possession of personal property, and conversion on March 27, 1985. Kimble answered in late May or early June of 1985.

On October 30, 1986, Hughes filed an amended complaint, which was not answered. On March 17, 1987, Hughes’s request for clerk’s entry of default was filed, and the default was entered the same date.

After the clerk’s entry of default, the matter lay dormant until February 10,1989, when Hughes was notified that the case had been calendared for a trial setting conference, or alternatively, for dismissal under section…