Byerly v. Sale

California Court of Appeal Sep 30, 1988 No. No. G004645Published

Before: Crosby

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Holding. The trial court improperly dismissed a medical malpractice action under the five-year statute because the action was stayed for arbitration, rendering it impossible to bring the case to trial. Furthermore, the court lacked authority to dismiss the underlying arbitration, as such matters are for the arbitrator to decide.

Issues

Whether a medical malpractice action stayed for arbitration is subject to dismissal under the five-year statute.
Whether a superior court has the authority to dismiss a pending contractual arbitration proceeding.

Disposition. reversed

Quotations verified verbatim against the opinion

“During that entire time, it was indisputably impossible for plaintiffs to bring their action on the complaint to trial. Thus, dismissal of the complaint was improper.”

“In our view, it is for the arbitrator, not the court, to resolve such questions while an arbitration which is the result of a contractual agreement between the parties is pending.”

Opinion

CROSBY, J. The superior court dismissed a medical malpractice action for failure to bring the matter to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.) Plaintiffs contend the five-year period was tolled by the [1314]court’s earlier order compelling arbitration and staying all proceedings. In what, as we shall explain, is probably an academic exercise, we agree.

On April 17, 1981, Ann Byerly sued Stewart C. Sale and several others for medical malpractice. Her husband included a cause of action for loss of consortium. Defendants answered the complaint and petitioned to compel arbitration and for a stay of proceedings pursuant to the terms of Byerly’s written arbitration agreement (Code Civ. Proc., § 1295). The trial court granted the motion on September 21, 1981.

By May 1983 the arbitrators had been designated, and discovery continued through January 1984. The matter then languished for more than two years until May 15, 1986, when plaintiffs asked defendants to schedule a date for arbitration. Defendants responded by moving the superior court to dismiss the complaint for failure to bring the action to trial within five years. The motion was granted on August 7, 1986. (Code Civ. Proc., §§ 583.310, 583.360.)

As plaintiffs argue, Code of Civil Procedure section 583.340, subdivision (c) excludes from the five years the entire period during which an action is stayed or where “[b] ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” The lawsuit was stayed five months after it was filed, and the stay was continuously in effect until the trial court purported to dismiss the action under the mandatory five-year statute. During that entire time, it was indisputably impossible for plaintiffs to bring their action on the complaint to trial. Thus, dismissal of the complaint was improper.

Our discussion is not yet complete, for we must point out that reversal of the judgment is close to an idle act. Mere dismissal of a previously stayed complaint under the present circumstances has absolutely no effect on the pending arbitration. This is so because the parties contractually agreed to arbitrate the dispute pursuant to Code of Civil Procedure section 1295.1 The court did not purport to dismiss the arbitration, nor are we

Byerly v. Sale

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