Judge: Douglas W. Stern, Case: BC648317, Date: 2023-02-23 Tentative Ruling

Case Number: BC648317    Hearing Date: February 23, 2023    Dept: 68

Rudy C. Durand vs. David P. Beitchman, et al., Case No. BC648317

Motion for Dismissal for Failure to Prosecute Pursuant to CCP § 583.310

Moving Party – Defendants David P. Beitchman and Beitchman & Zekian, PC

Responding Party – Plaintiff Rudy Durand

The Court expects the parties to argue this matter at the hearing, and to also explain what is going on in this case.  This is now a very old case, having been filed in 2017.  It languished for years.  It was ordered into arbitration in June 2020.  Yet Defendant contends that Plaintiff has not commenced arbitration until very recently.  What is the timeline of the arbitration events?  And to cap off the oddity of this timeline, the Court is informed that Plaintiff is 91 years old.

The declarations submitted to explain this history are not satisfactory to give the court a sufficient picture of these proceedings.

Please explain.

Moving Parties’ Position

            This case was filed on January 27, 2017, over six years ago. For the first three years of litigation, Plaintiff was unable to properly serve Defendants. When Plaintiff was finally able to effectuate service on Defendants, Defendants filed a Motion to Compel Arbitration, which was granted on June 24, 2020. Since that time, Plaintiff has not commenced arbitration, continually citing Plaintiff’s advanced age as the reason.

            Defendants filed this motion for mandatory dismissal for failure to prosecute on January 4, 2023. Defendants filed this motion pursuant to CCP §§ 583.310 and 583.360(a). These sections indicate that if a matter is not brought to trial within five years after it is commenced, then it shall be dismissed. Though the matter is stayed pending arbitration, Defendants claim that arbitration is the equivalent of commencement of a trial and that if a plaintiff causes unreasonable delay in the arbitration proceedings, then a court has discretionary power to dismiss the action. (See Dodd v. Ford (1984) 153 Cal.App.3d. 426, 430; see also Nanfito v. Sup. Ct. (Ice) (1991) 2 Cal.4th 315, 319 [“the matter is only on a sabbatical from the courthouse”].)

            Defendants also argue that it was the duty of Plaintiff to ensure that this action was heard before the 5-year deadline. Further, Defendants insist that there is no event which allows for the tolling of the 5-year deadline to bring the instant action to trial, including Plaintiff’s age and being ordered to arbitration.

Plaintiff’s Opposition

            Plaintiff’s late opposition was filed on February 14, 2023. Plaintiff’s main argument is that the stay pending arbitration tolls the 5-year deadline from CCP § 583.310. Plaintiff cites Brock v. Kaiser Foundations Hospitals (1992) 10 Cal.App.4th 1790, which held that in computing the time within which an action must be brought, the time during which the action was stayed must be excluded pursuant to CCP § 583.340(b).

“Since 6/24/20 a STAY is in effect was granted by the court, Defendants made no effort or step whatsoever to proceed with an arbitration and, refused to pay half of arbitration fees and costs and never acted upon Plaintiff’s email requesting a selection of an arbitrator or arbitration date.”  (Defendant’s Opposition pg. 3:11-14.)

“Rudy Durand Filed a Demanded For Arbitration and paid the arbitration filing fees (Beitchman refused to pay half of the fees required by their BINDING Contractual Arbitration - attached to Defendants’ instant motion) or, to proceed with arbitration…”. (Defendant’s Opposition pg. 3:17-19.)

Defendants’ Reply

            Defendants’ reply first sets out the argument that Plaintiff’s opposition need not be considered because it was filed late. Next, Defendants argue that Plaintiff did not proceed with reasonable diligence in the prosecution of this action and that Plaintiff’s late commencement of arbitration does not circumvent his lack of diligence in prosecuting the action. Finally, Defendants argue that Plaintiff’s reliance on Brock v. Kaiser Foundation Hospitals is misplaced, as that case is distinguishable from the current case because arbitration had already commenced in that case, whereas in this case, arbitration has not even commenced.


            “An action shall be brought to trial within five years after the action is commenced against the defendant.”  CCP §583.310.  Dismissal of an action pursuant to § 583.360 is mandatory and the court is without discretion to refuse dismissal unless the plaintiff can establish an extension, excuse, or exception expressly provided by statute. (See CCP § 583.360(b).)

            But this action was ordered into arbitration and stayed.

            Defendant’s reliance on Nanfito v. Superior Court (1991) 2 Cal.App.4th 315 is misplaced.  Indeed, that case suggests that this Court lacks the ability to dismiss this action while it is stayed and has been ordered into arbitration.  This case is not a “judicial arbitration” as was the case in Nanfito.  In the case before the Court the Court is not entitled to dismiss the action in the present posture.

The superior court's power to terminate litigation previously ordered into arbitration depends on the nature of the arbitration, i.e., judicial or true. In true arbitration, e.g., where parties stipulate to binding arbitration (Dodd v. Ford (1984) 153 Cal.App.3d 426, 432, fn. 7, 200 Cal.Rptr. 256) or where the superior court has compelled arbitration and stayed court proceedings pursuant to the terms of a written arbitration agreement (Code Civ.Proc., § 1295; Byerly v. Sale (1988) 204 Cal.App.3d 1312, 251 Cal.Rptr. 749), the “arbitration has a life of its own outside the judicial system, and only the arbitrator should determine whether there has been an unreasonable delay in prosecution which would justify dismissal.” (Byerly, supra, at p. 1316, 251 Cal.Rptr. 749; see also Young v. Ross–Loos Medical Group, Inc. (1982) 135 Cal.App.3d 669, 673, 185 Cal.Rptr. 536 [if superior court action is stayed pending ordered arbitration under written arbitration agreement, arbitrator's decision to dismiss proceeding for failure to prosecute is binding on superior court].) Under these circumstances, “the pleadings in the civil action, having fulfilled their purpose, [become] virtually functus  *319 officio ” and any attempt by the court to terminate the dispute is an idle act.3 (Dodd v. Ford, supra, 153 Cal.App.3d at p.p. 431–432, 200 Cal.Rptr. 256.)

Judicial arbitration is a different animal, however. As we previously observed, “[j]udicial [a]rbitration is obviously an inapt term, for the system it describes is neither judicial nor arbitration. The hearing is not conducted by a judge, and the right to a trial de novo removes the finality of true arbitration. ‘Extrajudicial mediation’ would be closer to correct.” (Id. at p. 432, fn. 7, 200 Cal.Rptr. 256.) Where the arbitration is of this type, the matter is only on a sabbatical from the courthouse and the superior court retains full jurisdiction to dismiss for lack of diligent prosecution. (See, e.g., D'Hondt v. Regents of University of California (1984) 153 Cal.App.3d 723, 730, 200 Cal.Rptr. 628.)”

Nanfito v. Superior Court (1991) 2 Cal.App.4th 315, 318–319.

            Plaintiff appears to have failed to prosecute this action through the commencement of arbitration.  But that is not the beginning and end of the inquiry.  Having ordered the parties to arbitrate, and stayed this action in June 2020, this Court does not now treat the action as if it has been pending before this Court since that Order to arbitrate.  Unless and until this action “returns” to this court by some proper device, this Court shall not treat this action as if it has been pending in this Court for more than 5 years and is therefore subject to the mandatory 5-year dismissal.

            Defendants’ motion for mandatory dismissal under C.C.P. § for failure to prosecute is DENIED.