A California employment lawsuit that isn’t brought to trial within five years of filing must be dismissed. The rule is in Code of Civil Procedure section 583.310, and section 583.360 makes dismissal mandatory, on the court’s own motion or the defendant’s. Long-running wage and hour class actions are the cases most likely to run out of time. Time can be excluded for stays and for periods when trial was impossible, so the employer’s motion usually turns on a careful count of the case’s history.
What does the statute require?
Trial within five years. Code of Civil Procedure section 583.310 says “An action shall be brought to trial within five years after the action is commenced against the defendant.”
The consequence is mandatory. Section 583.360(a) provides that the action “shall be dismissed by the court on its own motion or on motion of the defendant” if it isn’t brought to trial in time, and subdivision (b) adds that the requirements “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
What time doesn’t count?
Three categories are excluded. Under section 583.340, the clock excludes time when “The jurisdiction of the court to try the action was suspended,” when “Prosecution or trial of the action was stayed or enjoined,” and when “Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”
The third category is where most disputes happen. In Gaines v. Fidelity National Title Insurance Co. (2016) 62 Cal.4th 1081, the Supreme Court repeated that “The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.” Ordinary litigation delays, like discovery fights and continuances, usually don’t qualify.
| Event | Statute | Effect on the clock |
|---|---|---|
| Court-ordered stay of the whole action | CCP § 583.340(b) | Usually excluded |
| Removal to federal court | CCP § 583.340(a) | Often excluded while the state court lacks jurisdiction |
| Discovery disputes, writ petitions on side issues | CCP § 583.340(c) | Excluded only if trial was truly impracticable |
| Written stipulation to extend | CCP § 583.330 | Extends by agreement |
Has the rule ended a wage and hour case?
Yes. In Martinez v. Landry’s Restaurants, Inc. (2018) 26 Cal.App.5th 783, a putative class of salaried restaurant managers alleged misclassification and unpaid overtime. The trial court dismissed under sections 583.310 and 583.360, finding the plaintiffs “had failed to bring their lawsuit to trial within five years, as extended.” The plaintiffs argued that time spent on a discovery writ, a federal remand appeal, and an e-discovery compliance period should be excluded. The Court of Appeal affirmed.
The lesson for defendants is that class litigation often generates years of appellate detours. Each detour needs to be measured against the statute, because not every one stops the clock.
How does an employer protect the defense?
By not giving it away. Section 583.330 lets the parties extend the time “By written stipulation” or by oral agreement in open court. Defense counsel who sign a trial-continuance stipulation without reading its terms can end up waiving years of protection.
There’s also a grace period to watch. Under section 583.350, if a tolling period ends with less than six months left, the plaintiff gets six months after the tolling ends to reach trial. Post-judgment steps are covered in the firm’s post on appeal bonds after an employment judgment.
What should an employer do in an older case?
Build the timeline early.
- Preserve the docket, every stay order, removal and remand papers, and every stipulation the parties signed.
- Calendar the five-year date from the filing of the complaint against the employer, and recalculate it after every stay or continuance.
- Identify each period the plaintiff will argue should be excluded, and the evidence about the plaintiff’s diligence in each.
- Pull any trial-continuance stipulations and check whether they extended the five-year date.
- Talk to counsel before agreeing to any continuance, and about timing the motion to dismiss.
Tracking the trial clock is part of defending long-running employment class actions.
Five-year rule questions employers ask
Does the clock start when the employer is served?
No. The statute runs from when the action “is commenced against the defendant,” which generally means the filing of the complaint naming that defendant. A defendant added later by amendment, such as a Doe substitution, can raise separate questions about when the action commenced against it. The calculation should be done party by party.
Does arbitration stop the clock?
It can. When a court compels arbitration and stays the lawsuit, the stay is generally the kind of event the statute excludes. But the rules for a case returning from arbitration can be complex, and the employer shouldn’t assume the clock was either running or stopped without checking the court’s stay order and the timeline.
Can a court excuse a late trial for good cause?
Not generally. The statute says its requirements aren’t subject to extension or excuse except as expressly provided by statute. Courts apply the listed exceptions and the stipulation rule, but they don’t have broad discretion to forgive a late trial because the plaintiff’s case has merit.
If your company is defending an older employment case
If a wage, class, or single-plaintiff employment lawsuit against your company is approaching five years old, the docket history and any stipulations usually decide whether a dismissal motion is available. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving delayed prosecution. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Code of Civil Procedure sections 583.310, 583.330, 583.340, 583.350, and 583.360. The cases are Gaines v. Fidelity National Title Insurance Co. (2016) 62 Cal.4th 1081 and Martinez v. Landry’s Restaurants, Inc. (2018) 26 Cal.App.5th 783.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.