Hughes v. Portsmouth Square, Inc.

Opinion

ARNE, J.

*

This is an appeal from a judgment of dismissal under section 583, subdivision (b)

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of the Code of Civil Procedure for failure to bring this action to trial within five years.

[172]

This action for breach of contract was filed on August 12, 1974, naming four defendants and 100 Does, but did not include respondent, Portsmouth Square, Inc. among the named defendants. Respondent was involved in a bankruptcy proceeding under chapter 11, from October 13, 1976, to July 3, 1979.

Appellant filed a first amended complaint on January 21, 1980, and at that time respondent was substituted into the case for Doe 21. On April 9, 1980, respondent, Portsmouth Square, Inc. filed a motion to dismiss under the five-year statute and a demurrer to the complaint on the grounds that another action was pending between the parties on the same cause of action.

On April 18, 1980, the motion and demurrer were heard. The motion to dismiss was granted and the order signed on April 23, 1980, from which this appeal arises.

Appellant contends that the court abused its discretion in that the five-year statute was tolled while the bankruptcy proceedings were pending against respondent. Respondent contends that the statute was not tolled during that time because it was not a party to this action until after the bankruptcy proceedings were concluded and the five-year statute had run. Respondent also argues that the dismissal was proper, if not because it was barred by the five-year statute, then because the matter is res judicata based upon a judgment of the bankruptcy court denying appellant’s claim against Portsmouth Square, Inc., which judgment was affirmed on appeal by the United States District Court.

Notwithstanding that the language of section 583, subdivision (b) is mandatory in its direction that actions shall be dismissed unless brought to trial within five years after filing (except where the parties have stipulated in writing to extend the time), a limited number of exceptions to this provision have been recognized. Exceptions have been guardedly made because to do otherwise would destroy the clear legislative intent and public policy underlying section 583, subdivision (b) of the Code of Civil Procedure.