Breacher

In this action for fraud plaintiff Florence Breacher appeals from an order dismissing her complaint pursuant to Code of Civil Procedure section 583; subdivision (b), for failure to bring the action to trial within five years after the filing of the complaint.

The complaint was filed on October 1, 1976. However, both plaintiff’s counsel and defendants’ counsel mistakenly believed that the complaint had not been filed until November 10, 1977. Neither counsel discovered the mistake until December 22, 1981, when the true filing date was pointed out to counsel by the court. Defendants then promptly moved for dismissal under section 583, subdivision (b). The trial court thereafter dismissed the action and this appeal followed.

We conclude the action was erroneously dismissed. Trial was originally set for a date within the five-year period, and all the subsequent delays in bringing the matter to trial fell within well-established tolling periods or exceptions to the statute.

Trial was originally set for September 21, 1981, which was prior to expiration of the five-year period. Trial was then continued to October 26, 1981, by the written stipulation of the parties. Section…