The Five-Year Rule: When a Stalled California Lawsuit Must Be Dismissed
Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).
A civil action in California must be brought to trial within five years after it is commenced against the defendant. That is the five-year rule of Code of Civil Procedure section 583.310, and when the time runs out, dismissal is mandatory under section 583.360. The count is not always five calendar years. Stays, periods when trial was impossible, and written stipulations can all move the date. Kolmogorov Law, P.C. represents businesses on each side of these motions in the California courts.
Call (909) 235-6116 or contact us online to discuss a case that is approaching, or has passed, its five-year date.
The rule and what happens when the time runs out
The text is one sentence: an action shall be brought to trial within five years after the action is commenced against the defendant. (Code Civ. Proc., § 583.310.) If it is not, the court must dismiss on its own motion or the defendant's, after notice to the parties. The requirement is mandatory and is not subject to extension, excuse, or exception except as a statute expressly provides. (Code Civ. Proc., § 583.360.) A cross-complaint counts as an action for these purposes. (Code Civ. Proc., § 583.110.)
"Brought to trial" has a specific meaning. The California Supreme Court has said a case is brought to trial when it has been assigned to a trial department, called for trial, the attorneys have answered ready, and proceedings begin. In a jury case that point is reached when the jury is impaneled and sworn. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.) The Court of Appeal has twice held, most recently in September 2026, that a jury is impaneled and sworn when the panel of prospective jurors assembles for jury selection and takes its oath. A trial date on the calendar is not enough.
How the five years are counted
Three kinds of time are left out of the count. They are time when the court's jurisdiction to try the case was suspended, time when prosecution or trial was stayed or enjoined, and time when bringing the case to trial was impossible, impracticable, or futile for any other reason. (Code Civ. Proc., § 583.340.)
The Supreme Court addressed the second and third categories in Bruns. It held that prosecution of an action is stayed only when the stay covers all proceedings in the action. A partial stay, such as a stay of discovery, is not excluded automatically. It counts only if the trial court finds that it made trial impossible, impracticable, or futile, and the plaintiff carries the burden on that question. The critical factor is whether the plaintiff was reasonably diligent throughout. (Bruns, supra, 51 Cal.4th at pp. 726, 730-731.) The court later said that a stay of the trial itself also stops the clock, while a continuance generally does not. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081.)
Consider a supplier sued with two co-defendants. The court stays the whole case for fourteen months while a related arbitration finishes. Those months come out of the count. Change one fact, so that only discovery against one party was stayed, and the answer depends on what the plaintiff could still have done.
If tolling ends with less than six months left, the case is safe if it is brought to trial within six months after the tolling ends. (Code Civ. Proc., § 583.350.) And the period is tolled while an appellate court reviews a good faith settlement determination. (Code Civ. Proc., § 877.6, subd. (e)(3).)
For a civil action filed on or before April 6, 2020, an emergency court rule extended the period to five years and six months. (Cal. Rules of Court, emergency rule 10(a).) The Court of Appeal has held that this extension is not tolling and does not add the further six months in section 583.350.
Agreements that extend the deadline
The parties may extend the time themselves in two ways. One is a written stipulation, which need not be filed. The other is an oral agreement made in open court, if it is entered in the minutes or a transcript is made. (Code Civ. Proc., § 583.330.) The chapter also leaves the principles of waiver and estoppel intact. (Code Civ. Proc., § 583.140.) A defendant asked to sign anything that moves a trial date should read it with these sections open.
Earlier deadlines that can end a stalled case sooner
Two earlier limits exist. The summons and complaint must be served within three years after the action is commenced, and that dismissal is also mandatory. (Code Civ. Proc., §§ 583.210, 583.250.) Our page on Doe defendants shows how that rule works for late-added parties.
A court also has discretion to dismiss for delay. It may not do so until service has gone unmade for two years, or the case has gone untried for three years, or two years where a Judicial Council rule so provides. (Code Civ. Proc., § 583.420.) The procedure and criteria come from rules the Judicial Council adopts. (Code Civ. Proc., § 583.410.) After a mistrial, an order granting a new trial, or a reversal and remand for a new trial, the case must again be brought to trial within three years. The three years run from entry of the order or filing of the remittitur in the trial court, and they do not cut short the original five. (Code Civ. Proc., § 583.320.)
If you are the defendant in an aging case
Find the day the complaint against your company was filed, then list every stay, its scope, and the order that imposed it. Collect every stipulation, including ones made on the record at a hearing. The motion is made after the adjusted date passes, on notice.
By statute, a dismissal under these sections is without prejudice. (Code Civ. Proc., § 581, subd. (b)(4).) Whether the claim can be filed again then turns on the statute of limitations, which may have expired long before.
If you are the plaintiff and the date is close
The statute says a plaintiff must proceed with reasonable diligence, that all parties must cooperate in bringing the case to trial, and that trial on the merits is generally preferred over dismissal. (Code Civ. Proc., § 583.130.) That policy does not override the mandatory deadline. Ask for a trial date inside the period at the next case management conference, get any extension in writing, and build a record of each delay you did not cause. Our timeline of a contract lawsuit and our step-by-step guide to a business lawsuit show where the time goes.
What to bring to the first meeting
- The complaint and any cross-complaint, with filing dates.
- The court's docket or register of actions.
- Every order staying the case, in whole or in part.
- Every stipulation about trial dates or deadlines, and transcripts of hearings where one was discussed.
- Current trial-setting orders.
Frequently asked questions
A lawsuit against our company has been pending for almost five years with no trial. Can we get it dismissed?
Possibly. California Code of Civil Procedure section 583.310 requires an action to be brought to trial within five years after it is commenced against the defendant, and section 583.360 makes dismissal mandatory after that. First subtract any time the whole case was stayed or trial was impossible, and check for written or on-the-record stipulations. The motion is filed once the adjusted date has passed.
Our case was stayed for a year while a related arbitration finished. Does that year count toward the five-year deadline?
It depends on the scope of the stay. In California, time when prosecution or trial of the action was stayed is excluded under section 583.340. The Supreme Court has held that prosecution is stayed only when all proceedings are stayed, and it has said that a stay of the trial itself also counts. Any other partial stay is excluded only if the plaintiff shows it made trial impossible, impracticable, or futile despite reasonable diligence.
What does CCP 583.310 require?
It requires a California civil action to be brought to trial within five years after the action is commenced against the defendant. In a jury case, that means the jury has been impaneled and sworn, which the Court of Appeal has held occurs when the panel of prospective jurors takes its oath for jury selection. A trial date set beyond the period does not satisfy the statute unless a stipulation or a statutory exclusion extends the time.
Can the parties agree to extend the five-year deadline?
Yes. Under California Code of Civil Procedure section 583.330, the parties may extend the time by a written stipulation, which need not be filed. They may also agree orally in open court, if the agreement is entered in the minutes or a transcript is made. An informal understanding between counsel that meets neither description is a risk for the plaintiff.
Is a five-year dismissal with or without prejudice?
California Code of Civil Procedure section 581 lists a dismissal under the delay-in-prosecution chapter as one made by the court without prejudice. A new action must still be filed within the statute of limitations for the underlying claim, and five years after the first filing that period may have expired.
Talk to a California civil litigation attorney
If a case against your company has stalled, or your own case is running short of time, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is a business litigation firm in Irvine, California. See also our pages on voluntary dismissal and civil litigation.
This page provides general information about California law and is not legal advice. Outcomes depend on the procedural history, the dates, and the court.