*675 Opinion
Dоes the five-year statute apply when the failure is due to the court calendar and not to plaintiffs lack of diligence? James Bennett, plaintiff and apрellant, appeals from a judgment of dismissal entered after the Yolo County Superior Court granted defendants’ motion to dismiss based upon plaintiffs failure to bring the action to trial within five years from the date upon which it was filed. (Code Civ. Proc., § 583, subd. (b).) 1 Under the facts of this case we conclude that the statute does not apply. Accordingly, we reverse.
I
Prior to October 1973, plaintiff and defendant Herman Bennett operated a cement contracting business under the name of Bennett Cemеnt Contractors, Inc. In October 1973, it was agreed plaintiff would leave the business. Herman was assigned plaintiffs interest in the corporation’s accounts receivаbles and he, Herman, agreed to assume and pay all outstanding corporate debts.
Thereafter, on or about November 5, 1974, Syar Industries, Inc., filed a complaint in Solano County Superior Court under action number 59781 seeking to recover damages from both Herman and plaintiff. The damages represented the unpaid balаnce on a debt allegedly owed by the corporation to Syar. Plaintiff discovered what he believed to be diversion of corporate funds by Herman and оn October 31, 1975, filed a shareholder’s derivative action in the Yolo County Superior Court under another action, number 33365. In addition, plaintiff filed a cross-complaint for indemnification against Herman in the then pending Solano County action. Eventually, the Syar Industries action was resolved through a settlement and a stipulation severing thе remaining cross-complaint for indemnification and changing venue to Yolo County was entered on June 27, 1978.
When the cross-complaint was transferred to Yolo County, it was assigned Yolo County action number 38133. In April 1979, pursuant to request by plaintiff, an order was entered consolidating Yolo County action numbers 38133 and 33365. The consolidated mаtters were ordered advanced on the trial setting calendar for May 1979, and later set for trial on August 28, 1979. However, counsel for defendants success *676 fully moved for а continuance of the trial date; the trial was continued to October 10, 1979. Thereafter, the trial was continued several times on the court’s own motion: from October 10, 1979 to December 19, 1979; then to March 6, 1980; to May 22, 1980; to September 10, 1980; to November 4, 1980; to February 4, 1981. All such continuances were on the grounds that a courtroom was not аvailable for the trial.
When the matter was called for trial on February 4, 1981, counsel for defendants indicated he intended to make a motion to dismiss action number 33365 аsserting that the five-year period (subd. (b) of § 583) had expired. The court continued the trial to March 10, 1981, and set February 19, 1981, as the date for hearing on the motion to dismiss. After hearing and argument, the matter was taken under submission. Thereafter, the court entered its order as follows: “Defendants .. . have moved the Court for an order dismissing the above entitled action for failure to bring the action to trial within five (5) years of the date the action was commenced. [If] The Court finds that plaintiff, .. . filed his action in this matter on Oсtober 31, 1975. Thus, more than five (5) years have elapsed since the filing of the action. The parties have entered into no stipulation in writing that the time limitation set forth in CCP 583(b) may be extended. [If] Good cause appearing, ... [If] this action is ordered dismissed under the provisions of Code of Civil Procedure § 583(b).”
II
In determining the propriety of the triаl court’s order dismissing the action, certain decisional law guidelines control. First, notwithstanding the apparently mandatory language of section 583, subdivision (b),
2
it will not be applied in cases where it is impossible, impracticable or futile due to causes beyond a party’s control to bring an action to trial during the five-year period.
(Hocharian
v.
Superior Court
(1981)
The order dismissing the action, we conclude, is not supported by substantial еvidence and thus constitutes an abuse of discretion. We look to a case involving a similar set of facts,
Goers
v.
Superior Court
(1976)
A similar result, we believe, is compelled in the case at bench. Plaintiff took steps as early as April 1979 to secure a trial date, bring
*678
ing to the court’s attention at that time by way of a motion to advance that the five-year period was approaching. The motion was properly granted, and plaintiff secured a trial date almost 15 months in advance of the expiration of the statutory period, “demonstrating the diligence required of him under the statute.”
(Goers
v.
Superior Court, supra,
We conclude plaintiff was denied a reasonable opportunity to bring his case to trial within the five-year period; to dismiss under such circumstances constitutes an abuse of discretion.
The judgment is reversed.
Blease, J., and Carr, J., concurred.
Respondents’ petition for a hearing by the Supreme Court was denied December 9, 1981.
Notes
Hereafter, all statutory references are to the Code of Civil Procedure.
Section 583, subdivision (b), provides: “Any aсtion heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferrеd 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.”