Smith v. Evans CA2/5
Opinion
Opinion
I. INTRODUCTION
Plaintiff, James J. Smith, appeals from the dismissal of an action against
defendant, Robert D. Evans, Jr. At issue is the failure to bring the case to trial within five
years pursuant to Code of Civil Procedure1 section 583.360. As will be noted, defendant
died before the expiration of the five-year period. Defendant’s son filed the dismissal
motion. There was no evidence defendant’s son was legally authorized to do so. Judge
Maria E. Stratton granted the dismissal motion. Plaintiff contends defendant’s death
tolled the five-year period under section 583.340, subdivision (a). We agree and reverse
the judgment and order of dismissal.
II. BACKGROUND
Arthur George Diack died on December 4, 1984. His wife, Consuelo Diack
Evans, was the executor of his estate. On May 14, 1993, the probate court issued an
order settling Mr. Diack’s estate and establishing a Wife’s Trust, Martial Trust and
Family Trust. Ms. Evans was named as trustee and plaintiff was named as alternative
trustee of the Wife’s and Marital Trusts. In addition, Ms. Evans and plaintiff were named
co-trustees of the Family Trust. Plaintiff became trustee of the three trusts after Ms.