HARTMAN v. SANTAMARINA (1981)

OPINION

Plaintiff Maxine Hartman appeals from a judgment dismissing her medical malpractice action because it was not brought to trial within five years of its commencement as required by subdivision (b) of Code of Civil Procedure section 583. All statutory references will be to the Code of Civil Procedure unless otherwise specified.

The action was filed on February 7, 1974. The initial trial setting conference was scheduled to be held on August 9, 1974, but plaintiff's attorney did not appear and her at-issue memorandum was stricken. Subsequently, trial was set for October 20, 1975. Four days before the assigned trial date, plaintiff moved for a continuance. Her motion was granted, and the trial date was vacated.

Trial was again set, this time for February 28, 1977. Because of the unavailability of courtrooms on that date, the trial date was again continued. The date selected was October 11, 1977. On that date defendant moved for and was granted a continuance because counsel was engaged in another trial, and a new trial date was selected, February 14, 1978. On February 14 the case was assigned for trial but defendant filed an affidavit of prejudice against the judge. The case was then assigned to another department, and plaintiff filed an affidavit of prejudice against the judge. Because there were no other courtrooms available on that date, trial was continued. The date selected was January 15, 1979.

On January 15, 1979, 25 days before the expiration of the five-year period, counsel for both plaintiff and defendant appeared in court. Plaintiff's attorney¹ announced that he was presently engaged in a trial in the Ventura Superior Court which had not been expected to take nearly as long to try as it now appeared it would and that he was, therefore, “not able to go forward today in this matter,” that it was “impossible for me to go forward at this time.”

Noting the impending expiration of the five-year period, plaintiff's attorney suggested as one possibility that the case be continued for trial until February 5, three days before the five-year statute was to run, stating: “We are not going to be holding trial in Ventura that week. I could come down here, pick a jury, and then continue the matter over to a time convenient to the court and the parties when my Ventura case would be finished.”

The trial court asked: “Do you have anyone that could work on the selection of a jury today?” Plaintiff's counsel replied: “No. I could start it today, but I could never finish it.” The court then stated: “Well, I don't know what to tell you. We probably will have a department open today that could take it and try it because of the running on the five-year statute. We have some other cases that will probably fill that department if you do not. But I really can't tell you what it will be like if you want it continued to the February 5th date. I can't tell you whether you will get out then or not.”

Apparently the case was assigned to a department for a settlement conference which proved unsuccessful. In any event, later that same day, counsel for both parties appeared in another department where the proceedings were had around which the present controversy turns.

The court explained to the jury panel that this was likely to be the shortest jury service they would ever experience. The prospective jurors were sworn; 12 jurors were seated; both sides passed for cause;² and the oath was administered to the jury. Immediately thereafter the court asked plaintiff's counsel whether he had a motion to make, whereupon he moved for a continuance “because I am presently engaged in the case of Collier versus Nickel, et al., in the ... Ventura Superior Court, ...” The objection of counsel for the defendant to the motion for continuance was noted for the record, and the motion for the continuance was granted. The court then discharged the jury, as was contemplated from the beginning.³

On July 13, 1979, after expiration of the five-year period, defendant moved to dismiss the action pursuant to subdivision (b) of section 583.⁴ The motion to dismiss was heard and granted on July 30, and judgment of dismissal was entered in due course.

Plaintiff advances three principal contentions on appeal: first, that the time during which no courtroom was available for trial and the period of delay caused by the parties' exercise of their right to peremptorily challenge one judge each under section 170.6 should be excluded in computing the five-year period; second, that by virtue of the proceedings on January 15, 1979, in which a jury was selected and sworn, the action was in fact brought to “trial” within the contemplation of section 583, subdivision (b); and third, that the judgment of dismissal should be reversed by application of the principles announced by the Supreme Court in Hocharian v. Superior Court, 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829, decided January 19, 1981. Amicus supports plaintiff in respect to the second and apparently the third contentions. We have concluded that none of these contentions are meritorious.

We discuss the third contention first. The decision in Hocharian v. Superior Court, supra, 28 Cal.3d 714, 170 Cal.Rptr. 790, 621 P.2d 829 is of no precedential value to this court, as an intermediate appellate court, in deciding the case at bench. Hocharian dealt with a different statute, Code of Civil Procedure section 581a, subdivision (a), requiring dismissal of an action unless the summons has been served and returned within three years after the action was filed. The court there imported into the mandatory three-year statutory provision a concept of reasonable diligence. It held that the running of the three-year period without service and return of the summons creates only a rebuttable presumption that the case was not prosecuted with reasonable diligence (but cf. Woley v. Turkus (1958) 51 Cal.2d 402, 406, 334 P.2d 12, and cases there cited); that the presumption is subject to rebuttal by the plaintiff on an appropriate showing; and that, even if the plaintiff has been able to show reasonable diligence, dismissal may nevertheless be required if the defendant is able to demonstrate prejudice. (28 Cal.3d at pp. 722-724, 170 Cal.Rptr. 790, 621 P.2d 829.)

We do not perceive that this intermediate appellate court is authorized to entertain the question whether the concepts employed by the Hocharian majority are applicable to the mandatory five-year provision of section 583. Numerous Supreme Court decisions, not overruled in Hocharian, hold or state that dismissal under the five-year statute is mandatory unless facts are shown bringing the case within one of the statutory or recognized judicially created exceptions. (E. g., Tunis v. Superior Court (1963) 59 Cal.2d 465, 466-467, 30 Cal.Rptr. 135, 380 P.2d 823; Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 466; Andersen v. Superior Court (1921) 187 Cal. 95, 97, 200 P. 963; see Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 63, 168 P.2d 665; Christin v. Superior Court (1937) 9 Cal.2d 526, 529, 71 P.2d 205; see also Woley v. Turkus, supra, 51 Cal.2d at p. 406, 334 P.2d 12.) This court is bound by stare decisis to follow those decisions unless and until they are overruled by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

We are unable for several reasons to agree with the contention that the trial should have excluded from the computation of the five-year period the time consumed by the continuances that resulted on the several occasions when no courtroom was available for trial and the continuance that resulted from the parties' filing affidavits of prejudice against the judges presiding in the two departments to which the case was assigned for trial. It is true, of course, that periods during which it would have been impossible, impracticable or futile to have proceeded to trial are, in appropriate circumstances, excluded from the computation of the five-year period. (See J. C. Penney Co. v. Superior Court, (1959) 52 Cal.2d 666, 671, 343 P.2d 919, and cases there cited; see also Hocharian v. Superior Court, supra, 28 Cal.3d at p. 719, 170 Cal.Rptr. 790, 621 P.2d 829.) However, it is also well settled that the time consumed in the ordinary proceedings preliminary to trial including the “usual and reasonable time consumed in waiting for a place on the court's calendar,” are not to be excluded from the computation of the five-year period. (J. C. Penny Co. v. Superior Court, supra, 52 Cal.2d at p. 670, 343 P.2d 919, quoting from Continental Pac. Lines v. Superior Court (1956) 142 Cal.App.2d 744, 750, 299 P.2d 417; Specht v. City of Los Angeles (1962) 201 Cal.App.2d 457, 461, 20 Cal.Rptr. 42, and case there cited.) Moreover, even were it otherwise, there was no showing in the trial court of the periods of time during which it was impossible to go to trial because of the unavailability of a courtroom or as a result of the exercise of the two peremptory judicial challenges. The continuances referred to were in several instances for periods of many months. There was no showing nor any attempt to show that it was impossible to go to trial at a date earlier than that to which the case was actually continued.

In any event, the case was ultimately set for trial on January 15, 1979, a date almost one month before the expiration of the five-year period, and a courtroom, judge and jury were available for trial of the action on that date. In these circumstances, the trial court acted with propriety in not excluding from the computation of the five-year period the time consumed by the continuances referred to. (Cf. J. C. Penney Co. v. Superior Court, supra, 52 Cal.2d at p. 672, 343 P.2d 919.)

We come to the key question of whether the proceedings on January 15, 1979, constituted “trial” of the action within the contemplation of section 583. We have concluded that the answer must be “no”. In support of a contrary conclusion plaintiff and amicus cite myriad cases. (E. g., City of Los Angeles v. Sueprior Court (1940) 15 Cal.2d 16, 98 P.2d 207; Miller v. Lux, Inc. v. Superior Court (1923) 192 Cal. 333, 219 P. 1006; Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 139 Cal.Rptr. 651; Elliano v. Assurance Co. of America (1975) 45 Cal.App.3d 170, 119 Cal.Rptr. 653; King v. State of California (1970) 11 Cal.App.3d 307, 89 Cal.Rptr. 715; Bella Vista Dev. Co. v. Superior Court (1963) 223 Cal.App.2d 603, 36 Cal.Rptr. 106; Vecki v. Sorensen (1959) 171 Cal.App.2d 390, 340 P.2d 1020; Kadota v. City & County of S.F. (1958) 166 Cal.App.2d 194, 333 P.2d 75; Clements v. Ragghianti (1957) 155 Cal.App.2d 188, 317 P.2d 706; Kosturos v. Municipal Court (1942) 51 Cal.App.2d 700, 125 P.2d 572; Mussat v. Superior Court (1936) 16 Cal.App.2d 291, 60 P.2d 323.) We do not feel called upon to analyze and discuss all of these cases. Most of them hold that the partial trial of an action within five years after it was filed satisfies the requirement of section 583 that the action be “brought to trial” within the five-year period. That proposition of law is not disputed by defendant. Several of the cited cases hold or otherwise indicate that trial of an action commences in a jury case when the jury has been selected and sworn and in a non-jury case when a witness has been sworn and examination begun. (E. g., Vecki v. Sorensen, supra, 171 Cal.App.2d at pp. 394-395, 340 P.2d 1020; Kadota v. City & County of S.F., supra, 166 Cal.App.2d at pp. 195-196, 333 P.2d 75.) That legal proposition is not disputed by defendant either. Suffice it to say that not a single one of the cases cited authorize or countenance complete subversion of the statutory mandate by the impanelment of a jury and its immediate discharge pursuant to a predetermined course of action when counsel for the plaintiff has expressly stated that it is impossible for him to try the case at that time because of his involvement in the trial of another action.

It is accepted in all the decided cases that the word “trial” in section 583 contemplates proceedings to advance the resolution of “questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties.” (Adams v. Superior Court, supra, 52 Cal.2d at p. 870, 345 P.2d 466, and numerous cases there cited; Berri v. Superior Court (1955) 43 Cal.2d 856, 859, 279 P.2d 8; King v. State of California, supra, 11 Cal.App.3d at p. 310, 89 Cal.Rptr. 715; California Ammonia Co. v. Macco Corp. (1969) 270 Cal.App.2d 429, 431, 75 Cal.Rptr. 753.) In order properly to discuss the problem of the point at which trial commences, it is necessary that the proceeding engaged in was a trial.

In the case at bench the charade engaged in did not constitute a trial in any sense of the word; it was a sham the sole purpose of which was to avoid going to trial on that date. The proceeding engaged in was not designed to advance in any respect the resolution of a question of law or fact. By design the jury was to be impanelled and then discharged. If these proceedings are deemed to be a “trial” sufficient to remove the case from operation of the statutory mandate, the statute will hereafter simply have no effect; it will have been effectively annulled. Courts do not have the prerogative of nullifying a duly enacted statute even when its application might appear to have a harsh or unfortunate result. If it is true, as amicus asserts, that “the current condition of court calendars, combined with the increasing complexity of litigation, occasionally produces circumstances where it becomes a practical impossibility for the conscientious attorney and for the court system to comply with the five-year rule and still afford the best representation and service possible to members of the public,” the problem should be addressed to the Legislature which has the authority and whose proper function it is to amend the statute.

We do feel it appropriate to discuss several cases cited by plaintiff and which amicus asserts establish the propriety and efficacy of the proceedings here “without question.”

The first is Kosturos v. Municipal Court, supra, 51 Cal.App.2d 700, 125 P.2d 572. The procedure utilized here was in no way approved in that case. There, trial had been set upon the request of the plaintiff for March 11, 1941, and notice was served on the defendants on March 5. On March 7 the defendants demanded a jury trial and had the clerk of the court set the trial for April 16, a date beyond the five-year period. However, the defendant failed to deposit the required jury fees. On March 11, the trial date as originally set, the plaintiff appeared for trial, but the defendant was not present. The court took the position that the court clerk had no authority to change the trial date previously set and continued trial until the next day. On the 12th one witness was called by the plaintiff and testified. The cause was then continued by the court to April 16, the very date set for trial by the court clerk at the defendants' request.

It is difficult to understand why the court did not simply observe that having requested trial on April 16 themselves, the defendants were estopped to assert the bar of the five-year statute on or before that date. However, the rationale for the court's holding was that trial had actually commenced on April 12, the last day of the five-year period. Indeed, it had. A witness was sworn and testimony was presented to the court. The plaintiff had not requested a jury trial, and the defendants, having failed to post the required jury fees, had no absolute right to jury trial at that time, and as the court observed, the defendants may have appeared and consented to the partial trial without any request for the impanelment of a jury (51 Cal.App.2d at pp. 701-702, 125 P.2d 572.)

Next is Miller & Lux, Inc. v. Superior Court, supra, 192 Cal. 333, 219 P. 1006. The actual holding in that case that is pertinent to this was that the plaintiffs' being present in court and ready to proceed to trial on the crucial date was not the equivalent of the case having been “ ‘brought to trial’ on that date.” (192 Cal. at pp. 341-342, 219 P. 1006.) In its discussion the court stated: “Not only was that (plaintiffs' informing the court that expiration of the five-year period was imminent) not done in the instant case, but it appears that the postponement of the trial of the cases from the date upon which they were set for trial ... was had without objection from the plaintiffs.... Doubtless if objection had been made and the trial court's attention called to the fact that a further continuance would have the effect of putting the case beyond the bar of the statute, the trial court would have ordered that the cases proceed to trial or else have exacted a written stipulation from the defendants extending the time of trial. It may be suggested that if counsel had desired to avoid the bar of the statute it would have been a very simple matter, after calling the court's attention to the situation, to have requested that one witness be sworn in the cases and then the hearing of the cases continued until a time which would be convenient for the court and the parties to the action.” (192 Cal. at p. 342, 219 P. 1006; emphasis added.)

Not only was the emphasized statement of the court a patent dictum, it must be viewed in the circumstances in which it was made. On the crucial date plaintiffs were in court ready to proceed to trial; it was the defendant who wished to further postpone trial pending termination of the trial between some of the same parties in a related matter. Under those circumstances there can be no question but that it would have been entirely proper to commence the trial by having one witness sworn and examined and then, good cause appearing therefor, continue further trial of the matter until the conclusion of trial in the related case. (See Adams v. Superior Court, supra, 52 Cal.2d at p. 870, 345 P.2d 466.)

In the case at bench, by contrast, plaintiff was not prepared to proceed to trial; counsel twice expressly informed the court he could not proceed to trial that day; and it was never intended that any evidence would be received or any other step taken to advance the resolution of any issue of fact or law relevant to the determination of the dispute between the parties. What was contemplated and what was done was simply to impanel the jury and to discharge it. There was less “trial” here than in Adams v. Superior Court, supra, 52 Cal.2d 867, 345 P.2d 466, in which the case was called for trial and assigned to a trial department, but the plaintiff merely called a witness solely for the purpose of establishing grounds for a continuance, and no testimony was taken on the issues. In Adams it was held that no partial “trial” had been had, and the court expressly limited the Miller & Lux dictum. (52 Cal.2d at p. 870, 345 P.2d 466.)

In City of Los Angeles v. Superior Court, supra, 15 Cal.2d 16, 98 P.2d 207, the court repeated the Miller & Lux dictum in its discussion, but the actual determination of the court was that the evidence that had been taken did not relate just to a preliminary injunction but to questions in issue by virtue of the allegations of the complaint and that that amounted to a partial trial. (Id., at p. 20, 98 P.2d 207.) The problem dealt with in the Miller & Lux dictum was not the problem confronting the court in the City of Los Angeles case, and its repetition by the court was itself no more than a dictum.

Clements v. Ragghianti, supra, 155 Cal.App.2d 188, 317 P.2d 706, was another case in which the plaintiffs were present and prepared to go to trial on the crucial date. Counsel for one of the defendants moved for a nonsuit, and the court suggested the parties brief the question of whether evidence could be introduced against that defendant under the pleadings. Plaintiffs' attorney requested permission to proceed at least to the point of calling a witness and presenting some testimony because there was insufficient time to brief the question presented before the five-year statute would run. The court erroneously denied permission to proceed. Thereafter the action was dismissed for failure to bring it to trial within the five-year period. In reversing, the appellate court cited the Miller & Lux dictum. (Id., at p. 191, 317 P.2d 706.) However, the plaintiffs were prepared to go to trial, wanted to go to trial and were prevented from presenting testimony only by the erroneous ruling of the court. Under these circumstances, the decision of the appellate court was manifestly correct. (See Adams v. Superior Court, supra, 52 Cal.2d at p. 870, 345 P.2d 466.)

Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn., supra, 71 Cal.App.3d 706, 139 Cal.Rptr. 651, is the only case called to our attention in which the trial court in a similar context discharged the jury rather than simply granting a continuance. (Cf. s 616.⁵ ) In that case, however, as the court expressly noted, the motion for mistrial was unopposed (Id., at p. 711, 139 Cal.Rptr. 651), and the reason for the mistrial was that all parties agreed that an accounting should be made and time was needed to seek leave to amend the complaint and to discuss settlement or, at least simplify the issues to be tried. (Id., at p. 709, 139 Cal.Rptr. 651.) Obviously, the Blue Chip case furnishes no authority for what took place in the case at bench.

The judgment is affirmed.

I respectfully dissent.

In my opinion the action was brought to trial within the meaning of section 583 when the jury was selected and sworn, and it was error for the court to dismiss it under the five-year provision.

California courts have uniformly held that the impanelment and swearing of a jury brings a case to trial within the meaning of section 583, subdivision (b). In Kadota v. City & County of S. F. (1958) 166 Cal.App.2d 194, 333 P.2d 75, the complaint was filed on September 11, 1951. The time of the trial was extended by written stipulation until May 11, 1957. On May 9, 1957, a jury was impaneled and sworn. On the following day, which was a Friday, plaintiff's counsel stated that he was ill and requested a continuance. The matter was continued to May 13, 1957, at which time defendant moved for dismissal under the mandatory dismissal provision of section 583. The trial court granted the motion.

The Court of Appeal reversed, stating: “Our Supreme Court in Silcox v. Lang, 78 Cal. 118, 124, 20 P. 297, said: ‘The impaneling of a jury is a part of the trial, within the meaning of the code, and any ruling of the court with respect thereto, if erroneous, is an error of law occurring at the trial ...’ (Emphasis ours.) This case was decided in 1889 and section 583 was not adopted until 1905.... We are entitled to assume that in using the language ‘brought to trial’ the Legislature was aware of this previous judicial determination that the impanelment of the jury is a part of the trial. (Citation.) ... (P) Under the facts of this case we are satisfied that the action was brought to trial within the time fixed by the written stipulation of the parties, and it was error for the court to dismiss it under the five-year provision of section 583.” (Kadota v. City & County of S. F., supra, at pp. 195-196, 333 P.2d 75.)

In Vecki v. Sorensen (1959) 171 Cal.App.2d 390, 340 P.2d 1020, the court reaffirmed the Kadota court's holding that a jury trial commences with the impanelment of a jury. In Vecki the complaint was filed on December 5, 1950. The jury was impaneled and sworn on December 4, 1952. Thereafter the jury trial was continued from time to time for a period in excess of two years. On June 7, 1957, defendants moved to dismiss the action under section 583. The trial court granted the motion. The appellate court reversed, holding that when the jury was impaneled and sworn on December 4, 1952, the case was “brought to trial” within the meaning of section 583. (Id., at p. 393, 340 P.2d 1020.)

Although the majority appears to recognize the authority of the Kadota and Vecki cases for the proposition that a partial trial (the jury impanelment in a jury case) satisfies the statute, they distinguish the present case on the ground that the appellant had no intention of proceeding with the trial and disposing of any issues in the case within the five-year statute. Since a continuance beyond the five-year period was contemplated from the beginning, they hold, the whole proceeding was a sham and a nullity.

They are correct in stating that the sole purpose of the impanelment in this case was to avoid the mandatory dismissal requirement of section 583. A review of the record reveals that plaintiff had diligently pursued this matter and caused the case to be set for trial on four prior occasions. Except for the first trial date, at which time discovery had not been completed due to the unavailability of the defendant to complete his deposition, plaintiff had been ready and prepared to go to trial. On each of those occasions the trial date was continued because of circumstances beyond plaintiff's control, i. e., unavailability of a courtroom, the unavailability of defendant's attorney, and the unavailability of a judge qualified to hear the case due to the parties' exercise of their rights under section 170.6. Due to the policy of the court not to trail cases, the case was finally continued to January 15, 1979. Then for the first time, a continuance was necessitated because plaintiff's attorney was not available. Prior to the assignment of the case for trial on January 15, 1979, the plaintiff's attorney advised the calendar clerk that he was engaged in the trial of another matter and would not be available to proceed with the trial. He requested a continuance and a waiver of the five-year statute. Since no waiver was forthcoming, the partial trial procedure was adopted with the approval of both the presiding judge and the judge before whom the impanelment was accomplished.

Under these circumstances, the dismissal of the action pursuant to the mandatory dismissal provision of section 583, subdivision (b) unfairly deprives the plaintiff of the right to have her case tried on the merits. No statutory purpose is served by placing upon the plaintiff the entire burden of coping with the problems of court congestion and calendar conflicts.

The purpose of mandatory dismissal statutes, such as sections 581a and 583 is to “promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed.” (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492.) It was never intended that such statutes be wielded as a weapon to deprive a diligent plaintiff of her day in court. (See Hocharian v. Superior Court (1981) 28 Cal.3d 714, 724, 170 Cal.Rptr. 790, 621 P.2d 829.)

Where the plaintiff has made a diligent effort to bring the matter to trial and has been frustrated by delays caused by the unavailability of a courtroom, the courts have excused such delay. (Weeks v. Roberts (1968) 68 Cal.2d 802, 807, 69 Cal.Rptr. 305, 442 P.2d 361; Goers v. Superior Court (1976) 57 Cal.App.3d 72, 129 Cal.Rptr. 29.) Also, the right granted a litigant under section 170.6 has been held to suspend the five-year period. (Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686-687, 91 Cal.Rptr. 908.)

In the above cited cases, the courts have held that the statute was suspended or tolled during the period that it was impossible or impracticable to proceed to trial because of the unavailability of a courtroom or of a judge qualified to hear the matter. However, trailing the case for trial is not the only method by which a diligent plaintiff may be permitted to avoid dismissal.

In Miller & Lux Inc. v. Superior Court (1923) 192 Cal. 333, 342, 219 P. 1006, the California Supreme Court recommended the procedure of calling one witness as a means of avoiding the running of the statute, stating, “if counsel had desired to avoid the bar of the statute it would have been a very simple matter, after calling the court's attention to the situation, to have requested that one witness be sworn in the cases and then the hearing of the cases continued until a time which would be convenient for the court and the parties to the action.”

In this case plaintiff's counsel did precisely what the Supreme Court suggested in Miller & Lux, i. e., commenced the trial of the case and then obtained a continuance until a time which would be convenient for the court and the parties.

At the time the jury was impaneled, the five-year statute had not run. The court to which the matter was assigned for trial had jurisdiction to commence the trial and the power to grant a continuance. In view of the strong public policy that litigation be disposed of on the merits rather than narrow procedural grounds (Hocharian v. Superior Court, supra, 28 Cal.3d 714, 724, 170 Cal.Rptr. 790, 621 P.2d 829), the court properly exercised its discretion in impaneling the jury and granting a continuance.

No case has been cited authorizing the court to dismiss under section 583 after the case has in fact been brought to trial.

I would reverse the judgment of dismissal.

FOOTNOTES

1.  The attorneys of record for plaintiff were more than one. However, the court was informed that the attorney present in court had been associated a considerable time earlier for the purpose of handling the case, and that the other attorneys were not experienced in the trial of malpractice cases. For convenience, we shall therefore refer to plaintiff's counsel in the singular.

2.  The subject of peremptory challenges was not mentioned.

3.  The court stated to the jury panel in relevant part: “ ... because counsel is involved in another case, we have to go through the procedure to impanel a jury and then, if a motion is made to continue this matter, we probably will do that and you will be dismissed.” (Emphasis added.)

4.  Section 583, subdivision (b), provides in relevant part: “Any action heretofore or hereafter commenced shall be dismissed by the court ... 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.”

5.  That section provides in pertinent part: “In all cases where the jury are discharged without having rendered a verdict, or are prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, ... the action may be again tried immediately, or at a future time, as the court may direct.”

KAUFMAN, Acting Presiding Justice.

McDANIEL, J., concurs.