Anastasio

Stanley Anastasio, executor of the estate of Yolanda Anastasio, appeals from a judgment dismissing her cross-complaint against Smokehouse Broiler, Inc. (hereafter Smokehouse), for insurance proceeds recovered by Smokehouse for damage to a building it leased from Yolanda Anastasio. The sole issue on appeal is whether the court is precluded from dismissing an action pursuant to Code of Civil Procedure section 583.360 after the jury has been sworn.

Facts

Smokehouse originally filed a complaint against its landlord, Yolanda Anastasio, for damages caused by a fire at the premises Smokehouse leased. On May 20, 1976, Anastasio filed a cross-complaint in San Francisco County Superior Court, in civil case No. 697602, against Smokehouse and several insurance companies who allegedly insured Smokehouse or Anastasio. The *488 complaint alleged a cause of action for abuse of process against Smokehouse and bad faith refusal to pay a claim against the insurance companies. The cross-complaint was amended on November 3, 1976, to add several “Doe” defendants.

On October 10, 1980, Anastasio filed civil case No. 772373 against Smokehouse for structural damage allegedly done by Smokehouse…