Judge: Marcella O. Mclaughlin, Case: 37-2018-00064199-CU-WT-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Wrongful Termination Motion to Dismiss 37-2018-00064199-CU-WT-CTL ROMERO VS AL KOURAINY MD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Dismiss, 05/24/2024

Defendant's motion to dismiss for lack of prosecution is DENIED.

A. Defendant's evidentiary objections (ROA 286) are sustained.

B. Turning to the merits, Code of Civil Procedure section 583.310 requires an action to 'be brought to trial within five years after the action is commenced against the defendant.' 'A five-year period totals 1,825 days.' State ex rel. Sills v. Gharib-Danesh (2023) 88 Cal.App.5th 824, 847. Emergency rule 10(a), adopted by the Judicial Council of California during the COVID-19 pandemic, extends the five-year period by six months for cases filed on or before April 6, 2020.

In this case, plaintiff filed her complaint on December 19, 2018. The five-year period therefore ended on December 18, 2023. Adding the six-month extension under Emergency rule 10(a) brings the deadline to June 18, 2024. Thus, absent application of a statutory exception, the five-year and six-month period under section 583.310 and Emergency rule 10(a) has expired.

C. Plaintiff contends that the five-year and six-month period should be tolled because it was 'impossible, impracticable, or futile' to bring the case to trial. The court agrees.

In computing the five-year period, the court excludes the time during which it is 'impossible, impracticable, or futile' to bring the action to trial. Code Civ. Proc. § 583.340(c). 'What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves.' Moran v. Superior Court (1983) 35 Cal.3d 229, 238. In determining whether the exception applies, 'the court must find the following three factors: (1) a circumstance of impracticability; (2) a causal connection between that circumstance and the plaintiff's failure to move the case to trial; and (3) that the plaintiff was reasonably diligent in moving the case to trial.' De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 372. The plaintiff has the burden of proving that the circumstances warrant application of the section 583.340(c) exception. Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731.

Here, while plaintiff certainly bears responsibility for her current predicament, the court finds that it was impossible or impracticable for plaintiff to proceed to trial beginning on January 18, 2024. See Lazelle v. Lovelady (1985) 171 Cal.App.3d 34, 37-39 (applying statutory exception notwithstanding plaintiffs' 'questionable diligence'); see also Seto v. Szeto (2022) 86 Cal.App.5th 76, 96 ('[D]iligence is relative; a plaintiff whose case is closely approaching the five-year deadline will take more significant efforts to get the matter to trial than one who still has months or years left in which to try the action.'). On that date, Calendar No.: Event ID:  TENTATIVE RULINGS

3129142  10 CASE NUMBER: CASE TITLE:  ROMERO VS AL KOURAINY MD [IMAGED]  37-2018-00064199-CU-WT-CTL the court granted defendant's ex parte application to continue trial over plaintiff's objection. ROA 260.

This resulted in the trial being continued from a date inside the statutory period (February 2, 2024) to a date outside the statutory period (July 5, 2024). ROA 258. Given these facts – and recognizing that 'section 583.340 must be liberally construed consistent with the policy favoring trial on the merits' (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 693) – the court concludes that the time between January 18 and July 5 (169 days) must be excluded from the five-year and six-month period.

See Rose v. Scott (1991) 233 Cal.App.3d 537, 541-42; Breacher v. Breacher (1983) 141 Cal.App.3d 89, 92-93.

D. 'Tolling may be analogized to a clock that is stopped and then restarted. Whatever period of time that remained when the clock is stopped is available when the clock is restarted, that is, when the tolling period has ended.' Woods v. Young (1991) 53 Cal.3d 315, 326 fn. 3. In this case, adding 169 days to the June 18, 2024 expiration date results in a new expiration date of December 4, 2024. Accordingly, the motion to dismiss is denied.

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