## Facts

- Thomas J. Porreco and Josephine Porreco contracted with Red Top RV Center to purchase a motor home.
- The Porrecos claimed the motor home was defective and sued Red Top and Citicorp Acceptance Co., Inc. seeking rescission, restitution, and damages.
- The Porrecos filed the complaint on April 12, 1983, starting the five-year period to bring the action to trial under Code Civ. Proc. § 583.310.
- Additional parties became involved during the case, including Champion Home Builders Company and others, through amendments and cross-complaints; some parties were later dismissed.
- The court set a trial date within the five-year period, but shortly before the deadline—during a January 1988 settlement conference—the parties signed a written stipulation to submit the dispute to arbitration.
- The stipulation referenced the Judicial Arbitration Act, incorporated the California Rules of Court and Solano County Superior Court local rules, and waived any right to a de novo court trial after the arbitrator’s award.
- Arbitration was not completed before April 12, 1988 (the five-year deadline).
- On April 22, 1988, Citicorp moved to dismiss the action for failure to bring it to trial within five years.
- The trial court granted the motion and dismissed the action; the Porrecos appealed.

## Issues

1. Does a stipulation to submit a pending civil action to binding arbitration, entered within five years after filing, prevent mandatory dismissal under Code Civ. Proc. §§ 583.310 and 583.360 when the case is not brought to trial within five years?
2. Does such a stipulation constitute an extension, waiver, or tolling event—such as “impossibility, impracticability, or futility”—that stops the five-year period from running?

## Decision

- The Court of Appeal affirmed the dismissal.
- The parties’ stipulation to binding arbitration did not satisfy the requirement that the action be “brought to trial” within five years.
- The stipulation did not contain a clear agreement extending or waiving the five-year deadline, and the court would not infer one from the decision to arbitrate.
- The record did not show that timely trial was impossible, impracticable, or futile within the meaning of the statutory exceptions; any delay associated with choosing arbitration did not suspend the five-year clock.

## Legal Principles

- Code Civ. Proc. § 583.310 requires an action to be brought to trial within five years of commencement, and § 583.360 makes dismissal mandatory if the deadline is missed, unless a statutory exception applies.
- An agreement to resolve the dispute by arbitration is not the same as “bringing the action to trial” for purposes of the five-year statute.
- Any extension or waiver of the five-year deadline must be clear; courts do not treat a general agreement to arbitrate as an implied extension of the statutory period.
- The “impossibility, impracticability, or futility” exception is narrow and generally requires circumstances outside the plaintiff’s control; a voluntary choice to proceed in another forum close to the deadline does not, by itself, stop the five-year period.
- Plaintiffs bear responsibility for protecting against dismissal under the five-year rule by securing an express extension/waiver or taking timely steps to ensure the case can proceed to trial if alternative dispute resolution does not conclude in time.

## Conclusion

Porreco holds that a late stipulation to binding arbitration—without an explicit extension or waiver of the five-year bring-to-trial deadline—does not toll Code Civ. Proc. §§ 583.310 and 583.360, and if the action is not brought to trial within five years and no statutory exception applies, the trial court must dismiss.


Porreco v. Red Top RV Center, 216 Cal. App. 3d 113, 264 Cal. Rptr. 609 (1989)