Judge Jill Feeney, Case BC676682 2023-03-06 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place in May 2015. Plaintiff Harley Pryor filed her Complaint against Gerardo Cano Monasterio on May 1, 2017.

On January 19, 2022, there was a trial setting conference. Counsel for Plaintiff and Counsel for Defendant appeared at the conference. At that time, trial was set for March 3, 2023.

Defendant argues that this case should be dismissed because Plaintiff filed her Complaint almost six years ago and dismissal is now mandatory under Code Civ. Proc., sections 583.310 and 583.360.

Plaintiff argues that the Court’s jurisdiction to try this action was suspended from May 1, 2017 to October 4, 2017 while it was being transferred to unlimited jurisdiction. Further, this action was stayed due to the COVID-19 pandemic, meaning it was impossible, impracticable, or futile to bring this action to trial. Additionally, Plaintiff argues that Defendant did not answer the Complaint until November 2021, nearly four years and six months after Plaintiff’s original Complaint was filed. Finally, the current trial date set for March 3, 2023 was scheduled by the Court.

Defendant argues that Code Civ. Proc., section 403.070 provides that a proceeding that is reclassified is deemed to have been filed at the time the Complaint was originally filed, not at the time of reclassification. Defendant also argues that Plaintiff cannot object to the March 3, 2023 trial date because Plaintiff agreed to that trial date despite the fact that it fell after the five-year statutory time period.

Code Civ. Proc., section 583.310 provides that an action shall be brought to trial within five years after the action is commenced against the defendant. This requirement is mandatory and not subject to extension, excuse, or exception except as expressly provided by statute. (Code Civ. Proc., section 583.360, subd. (b).)

In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

Judicial Council Emergency Rule 10 provides that for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.

An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. (Code Civ. Proc., section 583.360.)

Plaintiff originally filed her action on May 1, 2017. The five-year deadline to bring the matter to trial was May 1, 2022. Pursuant to Emergency Rule 10, this period was extended six months to November 1, 2022. Thus, the five-year deadline to bring this matter to trial has passed.

Plaintiff argues that the Court’s jurisdiction over this action was suspended between May 1, 2017 and October 4, 2017 when the action was transferred from limited to unlimited jurisdiction. However, as Defendant points out, Code Civ. Proc., section 403.070 provides that an action that is reclassified is deemed to have been filed on the date the complaint was initially filed. The court has the same authority over the proceeding as if the action had been originally commenced as reclassified. (Code Civ. Proc., section 403.070, subd. (b).) Here, the Court’s jurisdiction over this action was not suspended while the case was being reclassified as an unlimited jurisdiction case.

Plaintiff also argues that the proceeding was stayed due to the COVID-19 pandemic. However, the action was not stayed and there is no evidence that the action was at any point delayed because of the court’s unavailability as a result of the pandemic. Moreover, any delay caused by the COVID-19 pandemic is accounted for through the additional six months added by Emergency Rule 10.

Plaintiff also argues that Defendant did not file an answer until November 2021, more than four years after the Complaint was originally filed. However, Defendant’s late answer does not toll or extend the five-year statutory time period. Plaintiff had ample opportunity to seek a stipulation to waive the five-year statutory time period after Defendant answered or to have the trial set within the statutory period.

Moreover, the delay in filing the answer is not the fault of Defendant. Plaintiff did not serve Defendant until March 2020. Thereafter, according to the stipulation to set aside default, the California Insurance Guaranty Insurance (“CIGA”) did not receive the claim relevant to this case until April 27, 2021. Further according to the stipulation, in July and August of 2021, counsel for CIGA did not receive any response to multiple communications sent to Plaintiff’s counsel about setting aside default. According to the stipulation, CIGA was not bound by the default. Once default was set aside, Defendant promptly filed an answer.

Plaintiff argues that the March 3, 2023 trial date was set by the Court and bringing this action to trial earlier was impossible, impracticable, or futile. The minute order from the January 19, 2022 trial setting conference shows that counsel for Plaintiff was present and did not object to the March 3, 2023 trial date. At this point, Plaintiff still had many months to seek a stipulation to waive the five-year statutory time period, to move to advance the trial date, or to otherwise bring this issue to the attention of the Court.

It is Plaintiff who had the duty to object to the setting of a trial date beyond the five-year period and to call the Court’s attention to the fact that the Court had set a trial for a date beyond the five year period. (De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 374.)

The Court notes that the five year period is tolled for the period of time that a case is continued at the defendant’s request. (Rose v. Scott (1991) 233 Cal.App.3d 537, 541-42.) However, a defendant’s failure to object to a trial setting beyond the five-year period does not constitute a waiver. (Central Mut. Ins. Co. v. Executive Motor Home Sales, Inc. (1983) 143 Cal.App.3d 791, 796.) Mere attendance at a trial setting conference does not constitute an implied agreement to waive the five year requirement. (Id.) There is no evidence here that Defendant asked for a continuance of the trial date . The trial date was set at a trial setting conference at which counsel for both sides were present.