Maguire

This is an appeal by cross-complainant Rose Maguire (hereinafter Maguire) from an order dismissing her cross-complaint against Alvin Rexford Collier and Anza Realty Co., a corporation, pursuant to subdivision (b) of section 583 of the Code of Civil Procedure.

Maguire’s cross-complaint was filed on September 5, 1968. Collier moved to dismiss it on September 12, 1973, and the motion was heard and granted on September 25, 1973. The court thereafter entered its written order of dismissal on October 9, 1973. Thus, there is no denying that more than five years transpired between the filing of the cross- complaint and its dismissal. The questions raised by Maguire on appeal have to do with whether the trial court erred in not excluding certain periods of time from the five-year period. She also contends that to the extent that the dismissal was based upon subdivision (a) of section 583 of the Code of Civil Procedure, the trial court erred.

I

While subdivision (b) of section 583 of the Code of Civil Procedure is essentially mandatory, there are certain periods of time which either may or must be- excluded in considering a dismissal. For example, subdivision (f) provides that…