Preston

I dissent.

The five-year time bar of section 583, subdivision (b) is mandatory, absent an applicable exception. Code of Civil Procedure section 583, subdivision (b) provides: “Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.”

Admittedly, several exceptions to the literal application of Code of Civil Procedure section 583, subdivision (b) have been created by several decisions of the California Supreme Court and appellate courts as explained by the majority opinion. Nonetheless, “The provisions of section 583 of the Code of Civil Procedure are mandatory unless plaintiff can bring his case within one of the exceptions made by the statute or within one of the implied exceptions recognized by the decisions.” (Adams v. Superior Court (1959) 52 Cal.2d 867, 870 [ 345 P.2d 466 ].) Also, “It is settled…

Plaintiffs in an action for a wrongful death arising out of alleged medical malpractice appeal from a judgment of dismissal entered pursuant to Code of Civil Procedure section 583, for failure to bring the action to trial within five years. We reverse and remand.

At issue is the application of Code of Civil Procedure section 583 1 to a court-ordered arbitration proceedings based on a contractual provision in a prepaid health care plan.

William Preston is a member of the Oil, Chemical and Atomic Workers Union and, as such, received hospital and medical benefits for himself and his family pursuant to a contract between the union and the Kaiser Foundation Health Plan (Kaiser). Decedent was Preston’s son who died after receiving treatment from Kaiser. The other plaintiffs are Preston’s wife and children.

*406 The master contract provides, inter alia, that any claim for malpractice arising out of the rendition of or failure to render services under the contract shall be decided by arbitration.

Further, the contract provides that a claim is waived and forever barred if . (3) the Claimant fails to pursue the arbitration claim with reasonable diligence.”

The chronology of…

Plaintiffs in an action for a wrongful death arising out of alleged medical malpractice appeal from a judgment of dismissal entered pursuant to Code of Civil Procedure section 583, for failure to bring the action to trial within five years. We reverse and remand.

At issue is the application of Code of Civil Procedure section 583 [1] to a court-ordered arbitration proceedings based on a contractual provision in a prepaid health care plan.

William Preston is a member of the Oil, Chemical and Atomic Workers Union and, as such, received hospital and medical benefits for himself and his family pursuant to a contract between the union and the Kaiser Foundation Health Plan (Kaiser). Decedent was Preston's son who died after receiving treatment from Kaiser. The other plaintiffs are Preston's wife and children.

The master contract provides, inter alia, that any claim for malpractice arising out of the rendition of or failure to render services under the contract shall be decided by arbitration.

Further, the contract provides that a claim is waived and forever barred if "... (3) the Claimant fails to pursue the arbitration claim with reasonable diligence."

The…