Misic

The question presented is whether an order setting aside a default judgment qualifies as a “new trial” order for purposes of Code of Civil Procedure section 583.320, which provides a three-year period within which to again bring the matter to trial when a new trial is granted by the trial court or ordered by an appellate court. We conclude it does not.

Plaintiffs/appellants filed their complaint on May 24, 1985, “for cancellation of deed and to [quiet] title to real property; for money, fraud, breach of contract.” The clerk’s default was entered nearly five years later on April 6, 1990. On the fifth anniversary of the filing of the complaint, May 24, 1990, appellants secured a default judgment granting various forms of relief, including money damages.

On September 27, 1991, the trial court set aside the judgment pursuant to “the following order: ‘Granted.’ No actual notice, []service insufficient, evidence does not establish avoidance of service.” This ruling was affirmed on appeal. On November 3, 1993, the trial court granted defendants’ motion to dismiss for failure to bring the matter to trial within five years from the filing of the complaint. (§…