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Superior Court, 6 Cal.2d 113, the court held that an action was not brought to trial within the meaning of section 583 where a hearing had been had on an application for a preliminary injunction in an action for an injunction, the court stating that a trial is a trial of issues of fact with the purpose of determining the case on the merits. Proc., §§ 588-591, defining issues and mode of determination.) But in Superior Oil Co. County of Los Angeles, 69 Cal.App.2d 104 see Code Civ. Superior Court, 18 Cal.2d 540 Redington v. ) And it has been said generally in defining a trial that it is the determination of an issue of law or fact a demurrer of course calls for the determination of an issue of law only. City of Los Angeles, 10 Cal.App.2d 730, judgment of dismissal entered contra Home Real Estate Co. However, in cases involving the right of the plaintiff to voluntarily dismiss "before trial" under section 581 of the Code of Civil Procedure it has been held that he could not dismiss after a demurrer had been sustained without leave to amend but before judgment because the case had been brought to trial. City of Los Angeles, 84 Cal.App.2d 297 see Erganian v. ) When the demurrer has been sustained and judgment of dismissal has been entered there has been a trial and the action is not subject to dismissal under section 583. De Benedetti, 39 Cal.App.2d 574 where the demurrer was overruled: Perrin v.
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Superior Court, 55 Cal.App.2d 675 where demurrer pending: Jackson v. City of San Diego, 118 Cal.App.2d 726 Breakstone v. County of Placer, 112 Cal.App.2d 859 Anderson v. (Where the demurrer or demurrers were sustained but leave to amend was given: De Roode v. With regard to the running of the five-year period, it has been held that the determination or a hearing on a demurrer to the complaint is not a trial within the meaning of section 583 of the Code of Civil Procedure and hence the action is subject to dismissal after the five- year period has expired unless the ruling on demurrer is a final determination of the case. Plaintiff, petitioner here, seeks mandamus against the court and clerk thereof to compel the entry of judgment pursuant to the order sustaining the demurrer. That motion is now pending as the trial court deferred ruling thereon pending the decision in the instant proceeding. Defendants served and filed a notice of motion (November 12, 1953) to dismiss the action on the ground that it had not been brought to trial within five years of the commencement of the action as required by section 583, supra. The court refused, stating it thought a formal motion for entry of a judgment should be made inasmuch as the five years had elapsed.
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† On October 19, 1953, after the five-year period had expired, plaintiff allegedly discovered that no judgment had been entered on the order sustaining the demurrer, and he presented a judgment to the court for signing and entry. The appeal was dismissed on November 9, 1953, by the District Court of Appeal.
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On April 10, 1953, plaintiff filed notice of appeal from that order. On March 4, 1953, the court made an order sustaining, without leave to amend, defendants' demurrer to the fifth amended complaint, 48 days before the expiration of the five-year period after commencement of the action. Defendants' demurrers to plaintiff's second, third and fourth amended complaints were sustained with leave to amend. First and second amended complaints were filed before defendants appeared. * On April 21, 1948, plaintiff commenced an action. This case involves the interpretation of section 583 of the Code of Civil Procedure. Toupin for Respondents and Real Parties in Interest. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents BANK OF AMERICA et al., Real Parties in Interest. INES BERRI, Individually and as Administratrix, etc., Petitioner, v.