Judge: Linda S. Marks, Case: 2017-00927237, Date: 2023-05-15 Tentative Ruling

1. Motion to Dismiss filed by Grace H Wu, Asia Pacific Tw International Inc. on

Defendants Asia Pacific TW International and Grace        Hua Wu’s Motion to Dismiss this action for failure to bring it to trial within 5 years is DENIED.

The action was filed on 6/20/2017. (ROA 2). California Rules of Court Emergency Rule 10 extends the 5-year time period for bringing an action to trial by 6 months, as to all civil actions filed on or before April 6, 2020. Thus, the five year deadline, as extended by Emergency Rule 10 would have expired on 6/20/2022 + 6 months = 12/20/2022.

The case has been trailing since 9/27/22, due to the unavailability of a courtroom for the trial. This date was well within the five year deadline, as extended by Emergency Rule 10. The absence of an available courtroom due to court congestion, such as occurred here, can support a finding that bringing the case to trial during that time was impossible, impracticable or futile. (See Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16).

The court finds Plaintiff has met its burden of demonstrating that time to bring the case to trial has been tolled because it was impossible, impracticable or futile to bring the case to trial within the meaning of CCP §583.340(c) due to the lack of an available courtroom.

Defendants cite Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717 for the proposition that “[a]lthough “ ‘ “ ‘part of the five-year period must necessarily be consumed in service of process, disposition of demurrers, amendment of the pleadings, if necessary, usual and reasonable time consumed in waiting for a place on the court's calendar or in securing the attendance of a jury and suchlike usual and necessary proceedings; ... [section 583.340] does not contemplate that time consumed in such ordinary proceedings are to be excluded from a computation of the five-year period.’” (Bruns at 731-32 (emphasis added).)

The unavailability of courtroom for trial in this case was not the usual or ordinary time contemplated by the Bruns court. Here, the court’s calendars have been severely impacted due to a once in a lifetime global pandemic. Thus, the unavailability of a courtroom for trial rendered trial of this case impossible, impracticable or futile within the meaning of the statute.

Defendants’ citation to Ables v. Ghazale Bros. (2022) 74 Cal.App.5th 823 for the proposition that the five year deadline may either be extended for six months by Emergency Rule 10 or tolling due to any of the circumstances in CCP §583.340 may extend the deadline is unavailing. The Ables court made no such finding, as the plaintiff in that action had not demonstrated that any tolling applied. To the contrary, the court’s dicta in footnote 5 of the opinion suggests that tolling maybe considered in addition to the 6 month extension provided by Judicial Council Emergency Rule 10.

For the foregoing reasons, the motion is denied.

Defendants’ objections nos. 1, 3 and 6 are SUSTAINED for lack of foundation. Defendants’ objections nos. 2, 4, 5 and 7 are OVERRULED.

Defendants to give notice.

2. Jury Trial