Kinney v. Chaldau
Based on the failure to prosecute (Code Civ. Proc., 583.310, 583.360), the trial court dismissed the cross-complaint of Charles Kinney (Kinney) against cross-defendants John Chaldu, Lynn Chaldu, Summer Chaldu and Chayne Chaldu (Chaldus), and cross-defendants Charles Viviani, Denise Viviani and Greg Viviani (Vivianis). Kinney appeals, contending that the action on his cross-complaint was commenced when a default judgment was entered, when certain bifurcated actions were tried, or when the trial court entered an interlocutory judgment decreeing a 1999 storm drain improvement agreement (1999 Agreement) to be void. We disagree.
The entry of a default judgment is not the commencement of an action for the purposes of the five-year statute, so the entry of the default judgment against Three Arch Investment Company is of no help to Kinney. The trials against the State of California (state) and Sherrie Overton (Overton) did not address contested issues of fact or law affecting the cross-complaint against the Chaldus or the Vivianis, so those proceedings also did not make the five-year statute inapplicable.
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