Apollo Plating, Inc. v. Superior Court

Opinion

BEACH, J.

Petition for writ of mandate to compel the trial court to dismiss an action for failure of plaintiff to bring it to trial within five

[1021]

years from the time of filing the complaint. (Code Civ. Proc., § 583, subd. (b).) We granted the alternative writ and heard the matter. We now deny the petition.

The question presented is whether an action may be dismissed under Code of Civil Procedure section 583, subdivision (b) (hereinafter CCP) while it is pending in arbitration to which it has been ordered pursuant to the provisions of CCP section 1141.10 et seq. (judicial arbitration statutes). This is precisely the same question presented to the court in

Crawford

v.

Hoffman

(1982) 132 Cal.App.3d 1015 [183 Cal.Rptr. 599], filed June 22, 1982, expressly holding that such action may not be so dismissed.

Background

The complaint was filed July 19, 1976. The matter was referred to arbitration on October 8, 1980, and the arbitration date was set for May 26, 1981. The arbitrator was not appointed until January 30, 1981. On May 26, 1981, the original date set for arbitration, the date was changed to September 24, 1981, at the request of plaintiff. Subsequently the date of the arbitration was advanced to September 11, 1981, by agreement of both parties. On July 19, 1981, the fifth anniversary of the filing of the complaint passed and on August 20, 1981, defendant made a motion to dismiss the action pursuant to the five-year rule of CCP 583, subdivision (b). No arbitration award had yet been made. On September 1, 1981, defendant’s motion to dismiss was denied and this petition followed.

Discussion

The second sentence of CCP section 1141.17 reads as follows: “Submission of an action to arbitration pursuant to a court order within six months of the expiration of the statutory period shall toll the running of such period until the filing of an arbitration award.” However, at bench, as in