Opinion
COMPTON, J. Plaintiffs in an action for a wrongful death arising out of alleged medical malpractice appeal from a judgment of dismissal entered pursuant to Code of Civil Procedure section 583, for failure to bring the action to trial within five years. We reverse and remand.
At issue is the application of Code of Civil Procedure section 5831 to a court-ordered arbitration proceedings based on a contractual provision in a prepaid health care plan.
William Preston is a member of the Oil, Chemical and Atomic Workers Union and, as such, received hospital and medical benefits for himself and his family pursuant to a contract between the union and the Kaiser Foundation Health Plan (Kaiser). Decedent was Preston’s son who died after receiving treatment from Kaiser. The other plaintiffs are Preston’s wife and children.
[406]The master contract provides, inter alia, that any claim for malpractice arising out of the rendition of or failure to render services under the contract shall be decided by arbitration.
Further, the contract provides that a claim is waived and forever barred if . (3) the Claimant fails to pursue the arbitration claim with reasonable diligence.”
The chronology of critical events in this case is as follows:
January 14, 1975—complaint filed in superior court; May 22, 1975— defendant notified plaintiffs of duty to arbitrate; February 9, 1976— defendant moved to stay the action and compel arbitration; December 6, 1976—motion to stay the action and compel arbitration granted;2 December 8, 1976—defendant selected arbitrator; October 9, 1977— plaintiffs selected arbitrator; January 14, 1980—five years elapsed from the filing of the complaint; December 8, 1980—action dismissed.
The third and neutral arbitrator, as provided for under the arbitration scheme, was never selected. The effect of the dismissal was to vacate the order for arbitration and terminate the arbitration itself.
Plaintiffs contend that once having ordered arbitration, the superior court was without jurisdiction to dismiss the arbitration proceedings, that Code of Civil Procedure section 583 is simply inapplicable to arbitration proceedings based on a private contract and in any event the time during which the jurisdiction of the court to try the action was suspended should not be included in computing the time period, citing Code of Civil Procedure section 583, subdivision (f).3 Plaintiffs argue that the determination of whether plaintiffs have proceeded with reasonable diligence is solely within the jurisdiction of the arbitration panel.
[407]At the outset, we observe that plaintiffs themselves, first, directly invoked the jurisdiction of the superior court when they filed their action and, secondly, and indirectly, when they refused to arbitrate thus requiring defendants to obtain a court order therefor.
Once the court ordered arbitration it was required by Code of Civil Procedure section 1281.4 to stay the proceedings until arbitration was completed or until “such earlier time as the court specifies.” The court retained jurisdiction to determine any subsequent petition involving the same controversy. (Code Civ. Proc., § 1292.6.)
We read the provision of Code of Civil Procedure sections 1281.4 and 1292.6 in combination as investing a court, which has ordered a matter to be arbitrated, with the power on the one hand to entertain a petition by the plaintiff for judicial assistance in moving the arbitration forward where the matter is foundering for reasons beyond plaintiffs’ control, or on the other hand, to entertain a motion by defendants to dismiss the arbitration where plaintiffs have failed to exercise reasonable diligence in moving the dispute to a conclusion.
Having concluded that the superior court was not ousted of jurisdiction by the order to arbitrate, we turn to the role of Code of Civil Procedure section 583 as applied to arbitration proceedings.
The policy of our law is to require a plaintiff to expedite the resolution of his or her claim and courts should not enforce claims unless the parties claiming them act in a timely fashion. (Martin v. Cook (1977) 68 Cal.App.3d 799 [137 Cal.Rptr. 434]; Lockhart-Mummery v. Kaiser Foundation Hospitals (1980) 103 Cal.App.3d 891 [163 Cal.Rptr. 325].) Code of Civil Procedure section 583 is a codification of that policy and simply declares that two years is generally a reasonable time to bring a case to trial and that a delay of five years raises a strong presumption that a plaintiff has failed to exercise reasonable diligence.
The policy underlying Code of Civil Procedure section 583 is valid notwithstanding that the parties have, by contract, opted for a forum other than the courts.
If, as plaintiffs contend, there was difficulty in forming the arbitration panel, or that defendants were “dragging their feet” in fulfilling [408]their obligations under the contract, plaintiffs could have petitioned the superior court for assistance in expediting the arbitration proceedings, even to the point of asking the superior court to appoint a neutral arbitrator. (Code Civ. Proc. § 1281.6.)
Lockhart-Mummery v. Kaiser Foundation Hospitals, supra, 103 Cal.App.3d 891, a case involving arbitration pursuant to the identical contract involved here, is the only reported case dealing with this issue which has come to our attention. We find the rationale of that case to be logical and persuasive.
It was there stated at page 896, “Where some standard must be set up to prevent matters from maundering about for unlimited periods, surely the time-tested series of limitations (contained in the Code Civ. Proc.) prescribed by the Legislature for lawsuits, are well founded in common sense and practicality and should be applied in arbitration proceedings.”
The Lockhart court further held that the entire period from the date of the filing of the complaint should be the “measuring rod and, if in excess of five years, the complaint should be dismissed ...” (Ibid, at p. 896.)
While we agree that Code of Civil Procedure section 583 should provide a measuring rod, our opinion is that the real test is “reasonable diligence” as provided in the contract. We are of the further opinion that in the context of contractually based arbitration proceedings, the above quoted language from Lockhart-Mummery, supra, that an arbitration should be dismissed after five years from the filing of the complaint is unnecessarily broad.
Case law has developed a number of exceptions to Code of Civil Procedure section 583, which serve to ameliorate the harshness of a strict application of the five-year period. One of those exceptions is where it is impossible or impractical to bring an action to trial. In that event, a so-called “island of time” may be carved out of the five-year period. (See Stella v. Great Western Sav. & Loan Assn. (1970) 13 Cal.App.3d 732 [91 Cal.Rptr. 771].)
In importing the concept and limits of Code of Civil Procedure section 583 into the test of reasonable diligence in bringing a claim to [409]resolution by arbitration, we must also import the judicially created exceptions. In so doing, it becomes apparent that the point for commencing the running of the time will not ordinarily be the filing of the complaint, but rather the order for arbitration. During the period between the filing of the complaint and the order for arbitration, it would generally not be possible or practical for the plaintiff to bring the matter to arbitration or trial.
“[I]t would be impossible to identify every situation in which a mechanical application of Code of Civil Procedure section 583 would produce injustice, ... the statute must be applied in light of all the circumstances in the individual case, including the .. . nature of the proceedings themselves. . . . [R]esolution of the issue should implement the general scheme of [§ 583] so far as possible, and courts should not ignore the guidance which the section provides.
“Pursuant to section 583, it is not within the discretionary power of the trial court to dismiss an action until two years after it has been filed; a plaintiff may not be penalized for failing to bring even the least complicated case to trial during this period. Since the purpose of section 583 is to prevent avoidable delay [citation], this provision appears to represent a legislative determination that at least in the typical case a delay of two years is to be deemed unavoidable.” (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, at pp. 96, 98 [52 Cal.Rptr. 460, 416 P.2d 492].)
Finally in Stella v. Great Western Sav. & Loan Assn., supra, 13 Cal.App.3d 732 at page 741, we stated “It would seem that the court’s mandate to follow the guidance of section 583 in its entirety and the need for uniformity of application is best served by equating the section with statutes of limitation.
“This is accomplished by simply setting the period during which the . .. ‘impracticability’ existed and examining the aggregate ‘free time’ which remains both before and after the exempt period in the light of the various provisions of section 583 of the Code of Civil Procedure.
“Thus, beginning with the filing of the complaint the plaintiff is entitled to consume before and after the ‘tolling’ period an aggregate of two years in bringing his case to trial before risking a discretionary dismissal and an aggregate of five years before a mandatory dismissal.”
[410]In the case at bench the trial court’s dismissal was based solely on an elapse of five years between the filing of the complaint and the motion for dismissal. The issue of “reasonable diligence” in light of the above quoted principles was not addressed.
In reversing and remanding this matter to the trial court we express no opinion as to whether or not the plaintiff in fact exercised due diligence. We hold only that the plaintiff should not be penalized for requiring the defendant to obtain a court order for arbitration nor should the plaintiff be penalized for any delay attributable to the defendant in obtaining an order for arbitration.
The judgment is reversed and the matter is remanded to the trial court with directions to determine whether plaintiff, in light of our opinion here, failed to exercise reasonable diligence.
Roth, P. J., concurred.
Code of Civil Procedure section 583, subdivisions (a) and (b) provide in pertinent part: “(a) The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. ... (b) Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended."
The delay from February 9, 1976, when the motion was filed, and December 6, 1976, when the motion was granted, was attributable to several continuances requested by plaintiffs.
Code of Civil Procedure section 583, subdivision (f) provides: “The time during which the defendant was not amenable to the process of the court and the time during which the jurisdiction of the court to try the action is suspended shall not be included in computing the time period specified in any subdivision of this section.”