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 that the implied exceptions to the five-year period prescribed by section 583 do not contemplate ‘that time consumed by the delay caused by ordinary incidents of proceedings like disposition of *411demurrer, amendment of pleadings and the normal time of waiting for a place on the court’s calendar or securing a jury trial is to be excluded from a computation of the five-year period.’” (Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 548 [105 Cal.Rptr. 339, 503 P.2d 1347].)
There appears in this record no reason why the arbitration proceedings cannot be treated in the same manner as “ordinary incidents of proceedings like disposition of demurrer, amendment of pleadings” etc. There appears in the record and there was before the trial court absolutely no reason why appellants did not or could not have started and completed arbitration proceedings before the initiation of any lawsuit on their particular claim. This was their contractual obligation. Moreover, there was no demonstration why appellants could not have completed the arbitration within five years from the filing of the lawsuit, had they proceeded with due diligence.
Accordingly, I respectfully submit what was said in LockhartMummery v. Kaiser Foundation Hospitals (1980) 103 Cal.App.3d 891 [163 Cal.Rptr. 325], (involving the identical contract as at bench) applies here: “The arbitration order did not toll the statute of limitations. The entire period from date of filing the complaint should be the measuring rod and, if in excess of five years, the complaint should be dismissed under Code of Civil Procedure section 583, subdivision (b).” (Id. at p. 896.) A plaintiff has the duty of demonstrating that the statute is tolled or that the entire period from date of filing the complaint should not be the measured period.
At bench there was no valid reason demonstrated by appellants for the delay of this action at law or for the delay in pursuing the arbitration. Appellants seek to carve out of the five-year statutory period another exception, i.e. “a stay pending arbitration.” But appellants are not entitled to do so. They did not diligently pursue arbitration as their contract lawfully required them so to do.
The question of whether appellants pursued the steps necessary required of them either in the arbitration or in the lawsuit itself was before the court and considered by the trial court. The trial court expressly said: “The question is whether or not there was reasonable diligence.” The trial court thus indicated it did consider the motion to dis*412miss with this as the crux of its decision. After submission and consideration, the trial court ruled against appellants. It is our duty to engage in every reasonable inference which supports the decision of the trial court. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496 P.2d 480].) But we need not speculate or assume or rely merely upon inference. The record is clear and solid that appellants totally failed to proceed with due diligence. All of the lengthy delays were caused by the failure of appellants (1) to perform some act required of them as conditions precedent to filing a lawsuit, e.g. first submitting originally to arbitration prior to commencement of the lawsuit; or (2) to avail themselves of procedures or aids available to them, e.g. prompt service on defendants with summons and copy of complaint, appointment of their arbitrator, demand that the third arbitrator be appointed, etc. The issue before the court was only that of appellants’ due diligence, in pursuing their claim by whatever means or in whatever forum, not respondent’s.
Appellants failed to demonstrate the presence here of any of the reasons present in other cases to suspend the running of the five-year period, e.g. appeal, application for extraordinary writ, unavoidable delay, impracticability (Stella v. Great Western Sav. & Loan Assn. (1970) 13 Cal.App.3d 732 [91 Cal.Rptr. 771]), impossibility, or futility. (For examples of cases illustrating various exemptions recognized, in time limitations cases see Hocharian v. Superior Court (1981) 28 Cal.3d 714, 719 [170 Cal.Rptr. 790, 621 P.2d 829]; see especially also 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 93 et seq.)
The issues at bench were primarily factual. In General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 98 [52 Cal.Rptr. 460, 416 P.2d 492], the court considered the question of exemption from time requirements based on impracticability of consolidating cases. It there said: “What constitutes a reasonable time to prepare for the trial of the consolidated actions will vary with the peculiar facts of each case. The trial court is in the most advantageous position to resolve this factual problem, and its ruling should be reversed only if an abuse of discretion is demonstrable. [Citation.] However, while it is necessary to determine the period of impracticability only if the case is impliedly excepted from Code of Civil Procedure section 583, resolution of the issue should implement the general scheme of that section so far as possible, and courts should not ignore the guidance which the section provides.”
*413To summarize, my view is: appellants filed a lawsuit improperly seeking a tort recovery. Respondent’s demand that appellants be required to arbitrate and the obtaining of such judicial order did not have the effect of correcting or changing the nature of the underlying cause of action or recovery sought by appellants. Appellants left their tort cause of action unamended and unpursued.1 But assuming the complaint somehow still had a valid cause of action after respondent’s demand, respondent’s demand for arbitration was not a request for the suspension of the running time of Code of Civil Procedure section 583, subdivision (b), nor was such suspension an automatic or necessary result thereof. Neither respondent’s motion nor the arbitration ordered should be treated as such. Nonetheless, that seems to "me the result of the majority’s opinion in that it so treats respondent’s act. The majority charges “time out” to the team which did not ask time out but simply asked the referee to make the other team abide by the rules. The time from which to calculate the running of the five-year period remained the filing of the complaint, nothing else. At bench the total five-year period should have deducted from it only a period of time during which respondent failed to perform some affirmative duty to do something which the law imposed on respondent. Appellants have demonstrated no such duty. The majority opinion nonetheless seems to cast a new burden upon a defendant in the position of respondent. I cannot define exactly on what premise that duty is based or what the scope of that duty may be. On the other hand, absent a clear exception to the five-year rule, the general rule of a plaintiff’s duty to pursue his own case seems clear and applicable here.
“It is the duty of a plaintiff to act, and to act with reasonable promptness and diligence, and defendant need make no move until the law requires him to do so ‘in response to the movements of plaintiff at the various stages of the litigation.’” (Bonelli v. Chandler (1958) 165 Cal.App.2d 267, 275 [331 P.2d 705]; Black Bros. Co. v. Superior Court (1968) 265 Cal.App.2d 501 [71 Cal.Rptr. 344]; 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 93 et seq.)
Here in less than 60 days after being served as defendants, respondent reminded appellants of and requested that they abide by, the contractual duty to arbitrate. Respondent sought judicial assistance to compel arbitration only after appellants refused to arbitrate. Yet for *414over five years, through no fault of respondent, plaintiffs failed to arbitrate or bring any other cause of action to trial.
I would affirm the judgment of the trial court.
A petition for a rehearing was denied December 29, 1981. Beach, J., was of the opinion that the petition should be granted. Respondents’ petition for a hearing by the Supreme Court was denied February 3, 1982. Kaus, J., and Broussard, J., were of the opinion that the petition should be granted.
Accordingly, respondent on the remand may immediately and successfully move the trial court for a judgment of dismissal on this basis.