Lauriton v. Carnation Co.

Opinion

FRANSON, P. J.

Statement of the Case

This is an appeal from an order dismissing appellant’s complaint for failure to bring the action to trial within five years as required by Code of Civil Procedure section 583.310.

1

Appellant filed a complaint against respondent on December 8, 1983. On October 16, 1987, appellant filed a voluntary petition for relief under chapter 7 of the Bankruptcy Act. Appellant received a discharge in bankruptcy on August 18, 1988. On September 30, 1988, appellant filed an at-issue memorandum in this case, and trial was scheduled for February 27, 1989. The case was dismissed for failure to prosecute on February 10, 1989.

Appellant contends the time during which he was in bankruptcy should have been excluded in computing the five-year period. Appellant argues it was impossible or impractical for him to prosecute this action during the bankruptcy. We conclude the trial court properly dismissed the action and affirm the judgment.

Discussion

An action must be brought to trial within five years after it is commenced against the defendant. (§ 583.310.) Dismissal is mandatory subject only to

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extension, excuse, or exception provided by statute. (§ 583.360.) In computing the five-year period, the time during which (1) the jurisdiction of the court to try the action was suspended, (2) prosecution or trial of the action was stayed or enjoined, or (3) bringing the action to trial was “impossible, impracticable, or futile,” is excluded. (§ 583.340.) A trial court’s ruling on a motion to dismiss pursuant to these sections will be disturbed only upon a showing of a manifest abuse of discretion.

(Martin

v.

K & K Properties, Inc.

(1987) 188 Cal.App.3d 1559, 1567 [234 Cal.Rptr. 161].)

Appellant contends his bankruptcy suspended the superior court’s jurisdiction over the case. Although generally all causes of action possessed by a bankrupt vest in the trustee