Fear Not Law Articles: TAMBURINA v. COMBINED INSURANCE COMPANY OF AMERICA

TAMBURINA v

TAMBURINA v. COMBINED INSURANCE COMPANY OF AMERICA

Filed 1/31/07

CERTIFIED FOR PUBLICATION

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

J. JAY TAMBURINA,

Plaintiff and Appellant,

COMBINED INSURANCE COMPANY OF AMERICA et al.,

Defendants and Respondents.

C051148

(Super. Ct. No. 99AS06622)

APPEAL from a judgment of the Superior Court of Sacramento County, Thomas M. Cecil, Judge. Reversed with directions.

Wilcoxen, Callahan, Montgomery & Deacon, Gary Callahan, E.S. Deacon; Haley & Bilheimer, Allan S. Haley, John Bilheimer; Montague & Viglione and John D. Montague for Plaintiff and Appellant.

DLA Piper Rudnick Gray Cary, Margaret L. Parker, Rodney Sorensen, Kari S. Gregory and Jean M. Hobler for Defendant and Respondent.

Plaintiff J. Jay Tamburina (Tamburina) appeals from a judgment of dismissal for failing to bring his action to trial within the five-year statutory period. (Code Civ. Proc., §§ 583.310, 583.360.)^{^[1]}

We disagree with the trial court and conclude that Tamburina has cleared two of the three hurdles required to apply the impracticability (tolling) exception to the five-year requirement: (1) he has shown a circumstance of impracticability (lengthy illness) that (2) has a â€

Description	Dismissal for failure to bring action to trial within five years was error under impracticability exception to statute where parties stipulated to multiple continuances due to illnesses of plaintiff and counsel, such continuances had a causal connection to the lack of trial within the five year period, and trial court failed to rule on whether plaintiff had exercised reasonable diligence throughout the five year period in seeking to bring the case to trial.
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