Fluor Drilling Service, Inc. v. Superior Court

*1011 Opinion

Petition to compel trial court to dismiss action for failure of plaintiff to bring case to trial within five years (Code Civ. Proc., § 583, subd. (b)).

Facts:

Discussion:

■ We have recently explained in the case of Moran v. Superior Court * (Cal.App.) filed this date, that the tolling there provided was not limitless and continuing until plaintiff chose to act. Rather, as we explained there, after the tolling period expires, the statutory time of five years within which plaintiff must bring his or her case to trial continues to “run”, i.e., be used up, and the operation of section 583, subdivision (b) will bar plaintiff after the five years, not counting within the five-year time: (1) tolled arbitration time under section . 1141.17; and (2) an additional reasonable amount of time necessary to prosecute plaintiff’s case. (Hocharian v. Superior Court (1981) 28 Cal.3d 714 [ 170 Cal.Rptr. 790 , 621 P.2d 829 ]; Moran v. Superior Court* (Cal.App.)) The additional tolled arbitration time is given to plaintiff by operation of law, but the amount of additional, reasonable time (item 2 above) is something that plaintiff must affirmatively establish. As we stated in Moran*…

I dissent for the reasons stated in my dissent in Moran v. Superior Court (Cal.App.).

Olney, Levy & Kaplan and Jay A. Kaplan for Real Party in Interest.

OPINION

BEACH, J.

Petition to compel trial court to dismiss action for failure of plaintiff to bring case to trial within five years (Code Civ. Proc., § 583, subd. (b)).

Within a little more than two months from the end of the five-year period described in Code of Civil Procedure section 583, subdivision (b), [1] plaintiff filed a written "request that this case be submitted to arbitration as provided in California Rules of Court ... and in the Code of Civil Procedure and agrees that the arbitration award shall not exceed the sum of $15,000...."

Notice by the arbitration administrator that the case was submitted pursuant to section 1141.10 was sent to all counsel, and on November 12, 1980, an arbitration award was filed. The award was made two days after the presumptive five-year anniversary of the filing of the complaint. Defendant demanded trial de novo as entitled to do so under section 1141.20. Trial setting conference was held on December 19, 1980, and at that time the matter was set for trial on June 26, 1981. On June 26 prior to the assignment to a trial department, defendant moved to dismiss the action…