Stewart

Petitioners filed a bad faith action against real party on April 25, 1980. Real party brought a motion to dismiss under Code of Civil Procedure section 581a, subdivision (a) because summons had not been returned within three years. This was heard on June 8, 1983, and denied by Judge Jack Levitt on June 22, 1983, on the basis real party was estopped from bringing the motion. Real party did not bring a motion for reconsideration nor did it seek review of the ruling by petition for a writ.

The case was set for trial on January 10, 1985. In limine, real party moved to bifurcate the affirmative defense summons had not been returned within three years and to have the issue tried by a jury under Code of Civil Procedure section 597. The motion was granted and separate trial set for January 14, 1985. On January 11, 1985, we granted a stay pending response and disposition. An interim order on January 14, 1985, notified the parties the petition was granted, the opinion to be issued in due time, and the stay was vacated.

Real party concedes it is unable to find any case law on the propriety of relitigating as a special defense a law and order motion which was previously denied. It…