Central Mutual Ins. v. Executive Motor Home Sales, Inc.

Opinion

BEACH, J.

Nature of Appeal:

Plaintiffs appeal from dismissal of action for failure to bring the case to trial within five years. (Code Civ. Proc., § 583, subd. (b).) We affirm.

Chronological Events:

On August 20, 1976, individual plaintiffs joined by several insurance companies as plaintiffs filed an action against defendants for loss incurred by fire of

[794]

a mobilehome. On April 22,1981, a trial setting conference was held. The matter by court order was set for trial to be held on October 7, 1981, and a mandatory settlement conference was scheduled for September 16, 1981. No significant procedural steps or matters relevant to the issue at bench had occurred between the filing of the complaint and the trial setting conference.

On August 20, 1981, the five-year statute of limitations expired and within the next five days all defendants moved for dismissal pursuant to Code of Civil Procedure section 583, subdivision (b). On September 9, 1981, the motions were heard and the action was dismissed.

Between the date of the trial setting conference on April 22, 1981, and the end of the five-year period on August 20, 1981, no particularly significant activity was taken by either side other than to exchange a list of expert witnesses as follows: In May 1981 one of the defendants demanded from other codefendants a list of expert witnesses. On June 2, 1981, plaintiff demanded a list of expert witnesses from all other parties and on June 2, 1981, plaintiff provided one of the defendants a list of expert witnesses. On August 18,1981, one defendant filed a list of expert witnesses in answer to an earlier demand.

Discussion:

Code of Civil Procedure section 583, subdivision (b)

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provides that an action which is not brought to trial within five years after the plaintiff has filed his action “shall be dismissed.” On the other hand, subdivision (f)(2) of Code of Civil Procedure section 581a provides exceptions to the three-year dismissal rule “[wjhere it would be impossible, impracticable, or futile to comply due to causes beyond a party’s control.” These statutory exceptions have by judicial fiat been extended to cases under the five-year mandatory dismissal rule of section 583, subdivision (b).