Boutwell v. Kaiser Foundation Health Plan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1373 OPINION

Plaintiff Don-Elda Boutwell appeals from the judgment following the trial court's order dismissing her complaint for failure to bring the action to trial within the mandatory five-year period pursuant to Code of Civil Procedure section 583.310 We affirm.

Plaintiff Don-Elda Boutwell, appearing in propria persona, filed a complaint against defendants Kaiser Foundation Health Plan and others on December 22, 1980, for medical malpractice. On October 15, 1982, plaintiff substituted in James R. Hastings as her attorney and plaintiff's first amended complaint was filed and served. Defendants answered on December 27, 1982. On January 12, 1983, the parties stipulated to stay proceedings pending arbitration pursuant to a provision in the parties' group medical and hospital services contract which required all disputes to be resolved through arbitration. On January 23, 1984, plaintiff substituted in Daniel Qualls as her attorney of record.

The matter lay dormant until October 24, 1985, when plaintiff informed defendants that she had selected her arbitrator, Barton Pokras. During this time, plaintiff alleged she unsuccessfully tried to retain an expert witness. As one reason for the delay, plaintiff contends that she had difficulty retaining an expert to testify about plaintiff's inner ear disorder but does not state what steps she took in this search. Plaintiff informed defendants of the name of her expert witness on October 31, 1985. On both October 31 and November 6, 1985, plaintiff informed defendants that she intended to arbitrate the matter on December 16, 1985. In response to defendants' conflict with that date, she offered to reschedule the hearing if defendants stipulated to extend the time for trial for 90 days. On November 12, 1985, defendants selected their arbitrator, Conrad Hoskins, and informed plaintiff that it would not stipulate to extend the five-year statute. Defendants agreed not to move for an immediate dismissal of the action if plaintiff promptly pursued her arbitration.

However, more than one year elapsed and the arbitration never took place. On December 9, 1986, plaintiff noticed a motion for an order directing *Page 1374 arbitration on date certain, and on December 24, 1986, defendants moved for mandatory dismissal of plaintiff's action under Code of Civil Procedure section 583.310 (1a) On January 23, 1987, the trial court granted defendants' motion to dismiss, finding that plaintiff had not been reasonably diligent in pursuing her claim and that defendants were not equitably estopped from moving to dismiss the action.