Judge: Elaine W. Mandel, Case: SC129036, Date: 2023-03-30 Tentative Ruling

Case Number: SC129036    Hearing Date: March 30, 2023    Dept: P

Tentative Ruling

Weber v. Taylor et al., Case No. SC129036

Hearing Date March 30, 2023

Defendant Taylor’s Motion to Dismiss for Failure to Bring to Trial

The complaint was filed March 23, 2018. Defendant Taylor moves to dismiss on the grounds that more than five years passed since it was commenced, in violation of Cal. Code of Civ. Proc. §583.310. Under Cal. Code of Civ. Proc. §583.310, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.”

Cal. Rules of Court Emergency Rule 10(a), issued in response to the COVID-19 pandemic, provides “for all civil actions brought on or before April 6, 2020 the time in which to bring the action to trial is extended by six months for a total of five years and six months.”

Without Rule 10(a), this matter would have been required to be brought to trial by March 23, 2023. Rule 10(a), however, extends this deadline. Defendant argues the extension should not apply because “Emergency Rule 10(a) is not a statute but an administrative rule[.]” He does not explain why this distinction is relevant. Taylor argues Rule 10(a) only applies “to cases brought forth on or about April 6, 2020.” This is incorrect; the Rule applies to cases brought “on or before April 6, 2020.” (emphasis added) As this action was filed before April 6, 2020, Rule 10(a) applies.

Taylor argues Weber’s claims are time-barred under the two-year statute of limitations for oral agreements. Such argument is more properly made in a motion for judgment on the pleadings or motion for summary judgment. Taylor has not complied with the statutory requirements for either motion, such as the meet and confer requirement or a separate statement, so this motion cannot be considered as either a motion for judgment on the pleadings or MSJ.

In reply, Taylor cites Mary Ables v. A.Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, which held an action commenced in July 2015 and scheduled for trial in March 2021 was subject to dismissal. Ables held that since 10(a) is an administrative rule, not a statute, it does not toll the running of the time by which an action must be brought to trial under §583.310. Ables confirmed, however, the validity of Rule 10(a)’s six-month extension of that period. Id. footnote 5 (“Ables was not prevented from bringing an action to trial before the end of the five-year, six-month period, and the time was not tolled.”) The Ables complaint was dismissed because the trial date fell “five years and seven months after the action was commenced,” and Rule 10(a) did not toll the five year, sixth month deadline. Id. pg. 825.

Taylor mischaracterizes Ables’ conclusion. The court did not rule that because 10(a) is not a statute, its six-month extension is unenforceable. Rather, it ruled that because 10(a) is not a statute, it cannot toll the running of §583.310. Under Ables, the issuance of Rule 10 (a) did not “freeze” the accumulation of time towards the statutory deadline by which actions must be brought to trial, it simply added six months to the deadline.  

The Rule 10(a) extension will not expire until September 23, 2023. DENIED.