Khoury v. Comprehensive Health Agency, Inc.

Opinion

STEPHENS, Acting P. J.

Plaintiffs and appellants, Richard Khoury, Sr., et al. (hereinafter plaintiffs), appeal from an order of dismissal entered pursuant

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to Code of Civil Procedure section 583, subdivision (b). The question presented is whether plaintiffs provided sufficient evidence of impossibility, impracticability or futility of prosecuting their case so as to prevent dismissal for failure to bring the case to trial within five years.

The relevant facts are that in March of 1974, plaintiffs were the named insured as a family under a group health service benefits plan underwritten by defendant Blue Shield of California. This plan was offered to members of the National Association of Temporary and Technical Employees by defendant, respondent Comprehensive Health Agency, Inc. (hereinafter Comprehensive Health).

On October 30, 1975, plaintiffs filed a complaint against Blue Shield, National Association, and Comprehensive Health for declaratory relief, breach of contract, fraud, bad faith and intentional infliction of emotional distress. On December 8, 1975, defendant Blue Shield filed a petition for order to arbitrate. On January 23, 1976, plaintiffs filed a response in opposition. On January 27, 1976, Blue Shield’s petition was granted.

On March 2, 1976, Comprehensive Health filed a petition for order to arbitrate as well as an answer to plaintiffs’ complaint. On March 12, 1976, Comprehensive Health’s petition was denied without prejudice.

On October 1, 1976, plaintiffs filed their first set of interrogatories to Comprehensive Health. On November 8, 1976, Comprehensive Health answered.

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On February 5, 1979, plaintiffs filed an at-issue-memorandum as to Comprehensive Health. On March 23,1979, Comprehensive Health filed a substitution of attorney.

On June 5, 1981, Comprehensive Health filed a notice of motion to dismiss pursuant to Code of Civil Procedure section 583, subdivision (a), and/or subdivision (b). On June 24, 1981, the court denied Comprehensive Health’s subdivision (a) motion, however granted the motion for dismissal pursuant to section 583, subdivision (b). The court concluded that pendency of arbitration does not toll the five-year period nor did arbitration constitute a trial within the meaning of section 583, subdivision (b). Plaintiffs thereafter instituted this appeal on August 12, 1981.