Hughes

This is an appeal from a judgment of dismissal under section 583, subdivision (b) of the Code of Civil Procedure for failure to bring this action to trial within five years.

This action for breach of contract was filed on August 12, 1974, naming four defendants and 100 Does, but did not include respondent, Portsmouth Square, Inc. among the named defendants. Respondent was involved in a bankruptcy proceeding under chapter 11, from October 13, 1976, to July 3, 1979.

Appellant filed a first amended complaint on January 21, 1980, and at that time respondent was substituted into the case for Doe 21. On April 9, 1980, respondent, Portsmouth Square, Inc. filed a motion to dismiss under the five-year statute and a demurrer to the complaint on the grounds that another action was pending between the parties on the same cause of action.

On April 18, 1980, the motion and demurrer were heard. The motion to dismiss was granted and the order signed on April 23, 1980, from which this appeal arises.

Appellant contends that the court abused its discretion in that the five-year statute was tolled while the bankruptcy proceedings were pending against respondent. Respondent contends that…