Tunis

Petitioner seeks a writ of mandate requiring respondent to dismiss an action entitled, “Joe Cash, Plaintiff, vs. Charles F. Tunis, Defendant, No. 691 403,” pending in the Superior Court of Los Angeles County.

Facts: December 4, 1957, plaintiff in the foregoing action filed a complaint against defendant (petitioner). October 9, 1962, the action was set for trial on January 7, 1963. December 19, 1962, defendant filed a notice of motion to dismiss the action for lack of prosecution pursuant to section 583 of the Code of Procedure. * December 28, 1962, defendant’s motion was denied by respondent.

Petitioner contends that it was mandatory under the circumstances for respondent to dismiss the action.

This contention is correct, the following rules being applicable :

(2) An action is not “brought to trial” until the trial is commenced. Therefore, the requirement that the action be brought to trial within five years is not satisfied by having it set before the expiration of such period for trial on a date subsequent thereto. (Boyd v. Southern Pacific R.R. Co., 185 Cal. 344, 346 [2] [ 197 P. 58 ].)

(3) A writ of mandate to compel the dismissal of a pending action is an appropriate…