Smith v. Evans CA2/5

Good Law
Court of Appeal of CaliforniaJune 20, 2016B267046California3,749 words

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.

Evans…

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