TENTATIVE RULING

Calendar:    11

Date:          12/22/2023

Case No: BC 691050 Trial Date: Jan. 22, 2024 

Case Name: Steger v. CSJ Providence St. Joseph Medical Center, et al. 

MOTION FOR RECONSIDERATION

MOTIONS TO DISMISS (2)

MOTION TO AUGMENT AND SUBSTITUTE EXPERTS 

Moving Party:   

Motion for Reconsideration

Motions to Dismiss

Defendant Olympus America Inc. 

Motion to Augment and Substitute

    

Responding Party:

Motion for Reconsideration

Defendant Olympus America Inc. 

Motions to Dismiss

Motion to Augment and Substitute

      Defendant Olympus America, Inc. 

RELIEF REQUESTED:

Motion for Reconsideration

Order reconsidering in part, the Court’s minute order dated September 15, 2023

Motions to Dismiss

Order dismissing action pursuant to CCP sections 583.310 and 583.360. 

Motion to Augment and Substitute 

Order permitting plaintiff to augment and substitute list of designated experts and extend date to complete expert deposition of Dr. Tawhid Gazi pending this application and de-designation of Dr. Tawhid Gazi  

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Jason Steger alleges that in October of 2016, plaintiff was admitted to defendant CSJ Providence St. Joseph Medical Center with abdominal pain, and that defendants, various medical providers, negligently performed a colonoscopy procedure on plaintiff which perforated his colon in multiple areas.  Plaintiff alleges that after the procedure, his pain worsened, and he went into septic shock.  Plaintiff alleges that he ultimately underwent a total colectomy with ileostomy and other procedures, and his entire colon was removed. 

 

On September 6, 2019, the court heard a motion for summary judgment brought by defendant Providence St. Joseph Medical Center, which was granted on the ground that in opposition to the motion, plaintiff had failed to submit expert medical testimony to raise a triable issue of material fact.  The court denied a motion for new trial on October 25, 2019, and on January 17, 2020, heard a motion for relief under CCP § 473 (b), which was denied. 

The file shows that on February 4, 2020, plaintiff filed a Notice of Appeal, giving notice plaintiff was appealing the court’s orders of September 6, 2019, October 25, 2019, and January 17, 2020.

On July 6, 2020, plaintiff filed an Amendment to Complaint, substituting defendant Olympus America, Inc. as the true name of the defendant designated in the complaint as Doe 1.   

On October 4, 2022, the court entered an Order Clarifying Five-Year Deadline, stating:

“Based on the statement filed by Olympus on September 23, 2022, and the Ex Parte Application FOR ORDER To Continue Motion for Summary Judgment, Trial, and to Determine and Clarify Five-Year Deadline Pursuant to CCP section 583.340 Does Not Expire Until July 21, 2023 brought by Plaintiff, heard on September 12, 2022, the Court hereby Orders and clarifies that the last date to bring this Case to trial pursuant to the five-year rule of CCP section 583.340, is July 22, 2023.  This Order is without prejudice to the Plaintiff’s right to seek extensions of the five-year period, and Defendants’ right to oppose any such request.” 

[Order, filed 10/04/2022, p. 2].  

The court ordered counsel to jointly submit a Long-Cause Package to Department 1 by 07/24/2023, and found, over defense counsel’s objection, that it was impossible, impracticable, and futile to bring the case to trial by the expiration of the five-year rule and ordered the 5-year statute extended to 09/15/2023.  [Minute Order, 07/13/2023, p. 1 of 2].  

On September 15, 2023, the court heard two motions to compel the further deposition of Tawhid Gazi, M.D. and for sanctions, one filed by defendant Olympyus America Inc., and one filed by defendants John A. Kasher, M.D. and James Kao, M.D.   The motions were granted, and plaintiff was ordered to produce for further deposition the deponent Tahwid Gazi, M.D., who was ordered to appear and give up to seven hours of testimony by no later than September 29, 2023.  The deponent was also ordered to give complete answers to designated questions, without objection, on resumption of the deposition.  Plaintiff was also ordered to permit further questioning of the deponent without interposing improper objections, improperly instructing the witness not to answer, or leading or coaching the witness. 

Monetary sanctions were awarded in favor of defendant Olympus and against plaintiff and plaintiff’s counsel, based on the granting of the motion to compel and plaintiff’s misuse of the discovery process in the total sum of $6,672.90, payable within 30 days.  

Monetary sanctions were awarded in favor of defendants John A. Kasher, M.D. and James Kao, M.D., based on the granting of the motion to compel and plaintiff’s misuse of the discovery process in the total sum of $3,351.93, payable within 30 days.  

The minute order notes that the tentative ruling was made the final order with the modification that no sanctions were ordered against plaintiff’s co-counsel, attorney Jonathan Borsuk.  

On September 29, 2023, the court heard various other motions, including a motion by plaintiff to augment his expert list.   The motion was granted, and plaintiff was permitted to augment his expert witness list to add two experts, Michael G. Koehler, an expert in chemistry, polymeric materials and plastics, and Alan Liptschultz, who has developed opinions regarding Olympus’ notice of problems with its scopes and the duties arising from that circumstance.   Neither of the experts added are medical doctors. 

“After hearing from counsel, the Court orders the hearing continued to the date indicated below at the request of plaintiff.  No additional briefing or reply is allowed except a Notice of Different Expert Designation.”

[Minute Order, 11/17/2023, p. 1 of 10]. 

“Defendant Olympus America Inc.’s Motion to Dismiss Action for Failure to Bring the Matter to Trial is CONTINUED to December 22, 2023 for further briefing on the narrow issues of plaintiff can meet his burden pursuant to CCP section 583.340(c) of establishing that it is impossible, impractical, and/or futile to bring the case to trial within the five-year statutory period during the time the parties are engaging in preparing and amending their long-cause package, and the matter is under evaluation for submission to long-cause. The Court will expect further legal briefing and a further factual record limited to the issues of trial readiness, causality and the exercise of reasonable diligence in connection with the above issue, and in light of the recently filed published decision of Oswald v. Landmark Builders, Inc. (2023) __Cal.App.5th__, 2023 WL 7581095. Supplemental Opposition is to be filed and served by no later than December 11, 2023. Supplemental Replies are to be filed and served no later than December 15, 2023.”

[Minute Order 12/02/2023, p. 37]. 

ANALYSIS:

Motion for Reconsideration

Procedural

Improper Motion for Reconsideration—Declaration Incomplete 

“This Motion is made on that grounds that the Order was made outside of the Court’s jurisdiction, was based on fraud on the Court, and/or otherwise procured through fraud or witness tampering or was not legally and factually meritorious.”

[Notice, p. 2:6-8].

In evaluating the declaration in support of the motion, CCP § 1008(a) specifically requires: 

“The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Under CCP section 1008, subdivision (e):

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

“Plaintiff seeks reconsideration and vactur of the draconian sanction award based on fraud on the Court pursuant to CCP § 473(d) and intends to file a separate motion to be heard within the time constraints of such a motion, concurrently with this motion, which is due 10 days after the minute Order, here which was entered on September 15, 2023. As will be shown separately, the circumstances that led the suspension of the deposition were entirely beyond Counsel’s control, and were the direct byproduct of litigation misconduct, litigation fraud, obstruction of justice, and witness tampering.”

[Lindemann Decl., para. 4]. 

“Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.”

New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.  

Substantive

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”  

Again, as set forth above, under CCP section 1008, subdivision (e):

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

The trial court’s determination of a motion for reconsideration is reviewed for abuse of discretion.  See Wiz Technology, Inc. v. Coopers & Lybrand (2003, 2nd Dist.) 106 Cal.App.4th 1, 16.

The court also finds that with respect to new or different facts, the memorandum, which, of course, is not evidence in support of the motion, fails to point to any further facts, supported by evidence or not, which under the law could be recognized as new or different.  For example, the memorandum mentions vaguely as a fact that there is no inference that can be drawn from the record that no date for a continued deposition would be provided after the initial deposition was suspended, and also mentions that no meet and confer occurred.  These facts would have occurred prior to the previous hearing and could have been raised by plaintiff in written opposition or at the hearing.  At the previous hearing, the court’s tentative ruling, which was issued prior to the hearing on the court website, specifically cited to evidence submitted by defendant Olympus’ counsel that counsel stated that he had “offered to continue the deposition later on Saturday, or on Sunday or Monday,” but the court noted that “plaintiff’s counsel refused to make any such arrangement.  [Hoffman Decl., para. 25].”  [Minute Order 09/15/2023, p. 5].  Plaintiff was free to counter this declaration in written opposition to the previous motions or at oral argument, but evidently did not do so. 

The motion accordingly is denied for failure of plaintiff to base the request for reconsideration on any new or different facts, circumstances, or law, as required under the statute. 

Finally, even if the court were to reconsider its September 15, 2023 order in light of the arguments asserted by plaintiff, the ruling would not change.   

Timeliness of Motion to Compel 

In any case, relief is sought pursuant to CCP section 2024.020, which provides that a party is entitled to have motions concerning discovery “on or before the 15th day, before the date initially set for trial,” and that a continuance of the trial date, “does not operate to reopen discovery proceedings.”  

As pointed out in the opposition, at the time of the hearing on September 15, 2023, there was no trial date set in the matter.  The opposition also argues that the statutory reference pertains to general discovery, when the subject motions concerned expert discovery, which is governed by CCP section 2024.030, which contains similar language.   

In any case, the moving papers submit no evidence showing that there had been no court order when the initial trial date or subsequent trial dates were continued or vacated which continued the discovery cut off deadlines to correspond to the new trial date.  No details in support of this argument are provided, such as a timeline showing the various continuances and the court orders governing the discovery deadlines.     

Moreover, as pointed out in the opposition, the court on September 29, 2023 heard a motion to clarify brought by defendants concerning the issue of whether discovery had remained open throughout the relevant period.   The court conducted a detailed review of the file, and found:

“The court’s file shows that on April 18, 2023, the Jury Trial was scheduled for 07/10/2023, which minute order expressly states, “All related dates and deadlines will be extended in accordance with the new trial date.” [Minute Order 4/18/2023, p. 2 of 2]. 

On June 16, 2023, the court denied an ex parte application to continue the hearing on a Motion for Summary Judgment and relief from five-year rule based on plaintiff’s counsel’s request to keep the same trial date. 

There is also in the file a minute order dated June 29, 2023, in which the court states, “Pursuant to the request of plaintiff, the Jury Trial scheduled for 07/10/2023 is advanced to this date and continued to 09/11/2023…” The minute order also states, “All trial deadlines are extended, including discovery deadlines, and shall be governed by the new trial date.” [Minute Order 06/29/2023, p. 2 of 3]. On July 3, 2023, the court heard an ex parte application for an order to specially set the trial and set the trial date on a date on or before July 21, 2023, which was granted, and the trial date set for July 17, 2023. [Minute Order 07/03/2023, p. 2 of 2]. There is no mention made of continuing the discovery deadlines in that minute order. However, the court is of the view that the previous orders continuing the discovery deadlines to coordinate with the new trial dates resulted in no lapse of the discovery cut off dates, particularly when the trial date was advanced to July 17, 2023 from a later September 11, 2023 trial date, so that the discovery deadlines had not lapsed prior to that July 17, 2023 trial date, which has since been vacated. There accordingly does not appear to be any necessity to reopen discovery which has already been propounded and pursued at this juncture, as the discovery deadlines had been continued by the court. The court accordingly considers the motion heard on September 15, 2023 to have been made within the discovery deadlines as reflected by the court’s file.”

[Minute Order 09/29/2023].

Fraud on the Court, Witness Tampering

Awarding Sanction When Plaintiff Did Not Oppose Motion on Ground of Any Specific Question or Objection 

“(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Sanctions were also sought and awarded under CCP section 2023.010, which provides that “Misuses of the discovery process include… “(e) Making, without substantial justification, an unmeritorious objection to discovery”; (f) Making an evasive response to discovery; (g) Disobeying a court order to provide discovery; (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel… discovery.” 

Where there has been misuse of the discovery process, under CCP section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

“Plaintiff in opposition argues that defendants had the opportunity to depose the expert, and chose to waste that time, and no further deposition should be ordered. Plaintiff argues that at the deposition counsel for the defense subjected the witness to questions concerning collateral matters, his location on certain dates, his calendar, his whereabouts and his patients. Plaintiff argues that both expert declarations offered by Dr. Gazi in this case were the subject of questioning, and it is not Dr. Gazi’s fault that counsel for defendants chose to ask questions concerning collateral matters rather than dive deeper into the designated expert’s opinions. Plaintiff also argues that most expert depositions take half a day, and that this has held true in his case with four other expert depositions completed in less than half a day. Plaintiff also indicates that defendants have estimated in their long cause submission that cross-examination of Dr. Gazi will take only two and a half hours. 

This does not justify plaintiff’s counsel in having unilaterally cut off the deposition by permitting the witness to leave, and having refused offers to continue the examination at some later time while counsel were all in New York, having travelled a great distance to accommodate the witness. 

The transcript shows that, instead, at the deposition, plaintiff’s counsel stated repeatedly on the record that plaintiff would not produce Dr. Gazi again. See Deposition of Tawhid Gazi, M.D. (July 15, 2023) [Hoffman Decl., Ex. A], pp. 127:24-128:2 (“Our position is going to be that this is it.  So we’re going to take the position that two and a half hours is it, and we’re going to explain it to Judge Hofer.”); 128:9-12 (“I know you disagree, but I’m taking my position, and this is the position we are going to take. This is it.”); 129:25-130:5 (“And I’m going to raise this, and there will be no more depositions. You have five minutes now. I have questions for this witness. I am not agreeing to any more time.”); 138:13-14 (“From our position, it’s closed.”). The transcript shows that counsel allowed defendants Dr. Kasher and Dr. Kao five minutes from the end of the deposition but consumed those minutes in argument so that those defendants were able to ask no questions of the witness whatsoever. Defendants also indicate that upon being made aware on Friday July 14, while en route to New York, that Dr. Gazi would be produced for only two hours of testimony time the following day, “Olympus’ counsel offered to continue the deposition later on Saturday, or on Sunday or Monday,” but plaintiff’s counsel refused to make any such arrangements, [Hoffman Decl., para. 25].

[Minute Order, 09/15/2023].

“Plaintiff then argues that there is substantial justification that the deposition did not continue, in effect, Dr. Gazi’s contention that he had patients the afternoon of July 15, 2023. Plaintiff argues that plaintiff has never spoken to Dr. Gazi and had nothing to do with the scheduling of his deposition, or the length of the appearance, evidently arguing that sanctions should not be imposed on the party. However, none of these arguments excuse the conduct of plaintiff’s counsel, which conduct may also be imputed to the client. Counsel inexplicably supported the witness in shortening a deposition which had been scheduled in a distant city to accommodate the witness, after counsel were already travelling and incurring expenses to attend the deposition. As discussed above, defendants offered to continue the examination later in the day or in the following days, but these offers were rejected.

Plaintiff’s counsel asserted improper objections at the deposition, some of which amounted to coaching the witness, the witness made evasive responses, and plaintiff has unsuccessfully opposed this motion, all of which constitute misuses of the discovery process.

[Minute Order, 09/15/2023, pp. 14-15]. 

MOTIONS TO DISMISS

Defendant Olympus and defendants Dr. Kasher and Dr. Kao have filed two separate motions for dismissal of the action based on plaintiff’s failure to bring the action to trial by the 5-year deadline of July 21, 2023.   Although the parties refer at times to the deadline of July 22, 2023, that date was a Saturday, not a court day, so no trial could have commenced on that date.   The court will use the deadline date of July 21, 2023.  

As noted above, the court originally heard these motions on December 1, 2023.  The court published its detailed tentative ruling and heard oral argument.  The court continued the hearing for further briefing on one very narrowly defined issue, as to each of the two motions to dismiss:

“Defendant Olympus America Inc.’s Motion to Dismiss Action for Failure to Bring the Matter to Trial is CONTINUED to December 22, 2023 for further briefing on the narrow issues of whether plaintiff can meet his burden pursuant to CCP section 583.340(c) of establishing that it is impossible, impractical, and/or futile to bring the case to trial within the five-year statutory period during the time the parties are engaging in preparing and amending their long-cause package, and the matter is under evaluation for submission to long-cause. The Court will expect further legal briefing and a further factual record limited to the issues of trial readiness, causality and the exercise of reasonable diligence in connection with the above issue, and in light of the recently filed published decision of Oswald v. Landmark Builders, Inc. (2023) __Cal.App.5th__, 2023 WL 7581095.

[Minute Order, 12/01/2022, p. 37]. 

The court’s tentative ruling on all other issues raised in the motions and opposition to the motions to dismiss was intended to and became the final ruling of the court on those issues.  For clarity, that ruling is again set forth in this tentative ruling, beginning with “CCP § 583.310 provides,” below.  

The issue to be newly addressed at this continued hearing is addressed at the analysis section below entitled, “ISSUES TO BE ADDRESSED AND RESOLVED AT THIS CONTINUED HEARING.”     

ISSUES RESOLVED BY THE COURT’S PREVIOUS RULING ON DECEMBER 1, 2023

CCP § 583.310 provides:

“An action shall be brought to trial within five years after the action is commenced against the defendant.”

“(a) 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.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

The parties all appear to agree that plaintiff was permitted an additional six months to bring the matter to trial under California Emergency Rule 10(a), which provides:

“Notwithstanding any other law, including Code of Civil Procedure section 583.310, 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.”

“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:

 (a) The jurisdiction of the court to try the action was suspended.

(b) Prosecution or trial of the action was stayed or enjoined.

(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”

Appeal of Court Order Granting Defendant Providence St. Joseph’s Motion for Summary Judgment

First, plaintiff argues that the time period during which the doctor defendants supported an argument that the days on appeal did not count toward the five-year rule must be excluded.  The opposition appears to argue that pursuant to CCP section 583.340 (b), the action was stayed from February 4, 2020, when plaintiff appealed the court’s order granting summary judgment to defendant Providence St. Joseph, through remittitur on November 15, 2021, because during that time period, plaintiff’s substantive prosecution of the case could not take place.   

Plaintiff argues that the doctor defendants, Dr. Kasher and Dr. Kao, took the position that the case was stayed during that period, without pointing to any specific evidence supporting that position.  There is a footnote indicating that the doctors filed writ petitions purporting to challenge the court’s order denying their motion for summary judgment, which were filed on August 30 and September 3, 2019, which petitions were denied, and jurisdiction returned to the trial court on September 20, 2019.   It is not clear how this contention supports the argument that the matter was stayed during the appeal by plaintiff of the summary judgment adverse order as to the hospital defendant, which occurred in February of 2020, many months later.  Plaintiff also does not make a clear argument that the matter was stayed during the time the writ petitions were pending.  Also, there is no order in the file indicating that either this court or the court of appeal ordered such a stay. 

As noted above, subdivision (b) excludes the time from the calculation when, “Prosecution or trial of the action was stayed or enjoined.”

The Second District has interpreted the term “stayed” for purposes of the statute as follows:

“the term appears to have a commonly understood meaning as an indefinite postponement of an act or the operation of some consequence, pending the occurrence of a designated event. Thus, in People v. Santana (1986) 182 Cal.App.3d 185, 190 [227 Cal.Rptr. 51], a case involving the stay of a sentence, the court concluded that "[a] stay is a temporary suspension of a procedure in a case until the happening of a defined contingency." Black's Law Dictionary (5th ed. 1979) page 1267 defines the term as "a suspension of the case or some designated proceedings within it."…

This construction fits neatly within the evident purpose of section 583.340, which is to exclude from the mandatory dismissal provision time periods during which the case could not be brought to trial. The absence of trial court jurisdiction to try it (the contingency covered by subdivision "(a)") is one reason; a court order barring the trial (by a stay or injunction) is another. Each of these is an example of impossibility, impracticality or futility in bringing the case to trial. The final provision recognizes "any other reason" that it was impossible, impracticable or futile to bring the case to trial.  What all of these provisions have in common is the practical inability of the parties to proceed to trial. Each prevents a trial, and each is recognized as a basis to toll the running of the statutory period. (See 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 134, p. 440.)”

Holland v. Dave Altman’s R.V. Center (1990)   222 Cal.App. 3d 477, 482, italics in original.

In Holland, the Second District found that the trial court had prematurely dismissed an action under the statute where the matter had been subject to an order, which, while it had used the word “continue” had actually been a stay, as it put the trial over indefinitely, until the happening of a designated event, in that case, the determination of an appeal.   Id. 

Defendants also argue that to the extent plaintiff intends to argue that plaintiff is entitled to an exclusion under subdivision (c), plaintiff cannot show that the appeal prevented or interfered with plaintiff prosecuting his case, or that plaintiff acted with reasonable diligence, so plaintiff cannot prove the factors needed to exclude this period.

“While the action is under seal for these purposes, no one may serve the complaint on the defendant(s). Only when the relevant government agency notifies the court of its decision regarding whether it will intervene in the action can the seal be lifted. And only when the court lifts the seal in connection with this intervention decision can the summons and complaint be served on the defendant(s) and litigation of the action begin. Prior to that time, the qui tam plaintiff is not allowed to take any steps to prosecute the case.”

Gharib-Danesh, at 832-833.

The Second District found that in that case, the trial court should have excluded the days during which the case had been kept under seal and in camera based on subdivision (b) of section 583.340, providing that the time during which an action is “stayed” is to be excluded in computation of the five-year period.   Gharib-Danesh, at 833. 

To the extent plaintiff vaguely argues that the doctor defendants have agreed that the period was excluded from the calculation, plaintiff does not submit any proof of such an agreement. 

Under CCP § 583.330: 

“The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means:

 (a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal.

 (b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made.”

Plaintiff points to no proof of a stipulation to stay the matter with respect to any period of appeal.  

Plaintiff seems to rely on a Declaration of Christopher Wend, counsel for the doctors, which was filed on January 3, 2023, for a January 20, 2023 hearing date.  [Lindemann Decl., Ex. 7].  That declaration explains that counsel in September of 2021 was in a serious automobile accident, was undergoing an extensive recovery period, and would be unavailable to conduct trial for another six months.   The declaration states:

“Because of my current medical condition and need for additional surgeries, my surgeon recently evaluated me and indicated I will be unable to try cases for at least another 6 months. Based upon my medical condition and trial calendar, I am requesting that trials not be set before August 2023. (Attached as Exhibit “A” is a copy of the letter from my surgeon.) 

7. The five-year statute of limitations in this case expires as of July 22, 2023. 

8. As a result of my medical condition and need for further surgeries this year, I will be unavailable to conduct the trial until August of 2023 nor will I be available to conduct necessary expert discovery and extensive trial preparation. I am requesting that the five-year statute be slightly extended for another 30 days, to the end of August of 2023, to allow me to try this case as per the request of the clients and their insurance company.” 

[Lindemann Decl., Ex. 7, Wend Decl., paras. 6-8].  

This declaration of counsel has nothing to do with conceding any tolling during the appeal, but at best is an implied stipulation on the part of only the doctor defendants, to a thirty-day extension of the five-year deadline, to which the other defendants did not agree.   Moreover, plaintiff also attaches a Notice of Withdrawal of the Declaration of Christopher P. Wend, Esq., in support of plaintiff’s ex part to Continue Trial and Other Dates, filed on June 15, 2023.  [Lindemann Decl., Ex. 7].  The Lindemann Declaration suggests that this notice of withdrawal was somehow ineffective, as plaintiff had already relied upon the consent being given, but this argument is not developed, and the trial at that time was not set to commence after the July 21, 2023 deadline, so it is not clear how plaintiff could have reasonably relied on the declaration after it was withdrawn.   Moreover, as the doctor defendants argue in the reply, even if the Wend Declaration could be construed as a stipulation to extend the statutory period, such a stipulation only extended the deadline to August of 2023, to which date plaintiff is now well beyond.  

Hence, the plaintiff has not met his burden of establishing that subdivision (b) or some other statutory exception applies to exclude the time period of the appeal of the summary judgment order as to the hospital from the five-year calculation.

Period Before Defendant Olympus Substituted as Doe Defendant 

In Bruns, supra, the California Supreme Court provided the following guidelines for the trial court’s determination of whether it was “impossible, impracticable, or futile” to bring a case to trial, which is separate from the stay analysis under subdivision (b), above.  The court emphasized that the critical factors to be considered are whether plaintiff exercised reasonable diligence to bring the matter to trial, and whether the delay was due to causes beyond plaintiff’s control:

“Under 583.340(c), the trial court must determine what is impossible, impracticable, or futile "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. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case." (Moran v. Superior Court (1983) 35 Cal.3d 229, 238 [197 Cal. Rptr. 546, 673 P.2d 216]; see also Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 326[54 Cal. Rptr. 3d 175] [trial court must determine whether plaintiff has shown a circumstance of impossibility, impracticability, or futility, a causal connection to the failure to move the case to trial, and that he or she was "reasonably diligent in prosecuting the case at all stages of the proceedings"].) A plaintiff's reasonable diligence alone does not preclude involuntary dismissal; it is simply one factor for assessing the existing exceptions of impossibility, impracticability, or futility. (Baccus v. Superior Court (1989) 207 Cal. App. 3d 1526, 1532-1533 [255 Cal. Rptr. 781].) " '[E]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation.' [Citation.]" (Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal. App. 3d 464, 472 [266 Cal. Rptr. 50].) "Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions." (Baccus, at p. 1532.) Determining whether the subdivision (c) exception applies requires a fact-sensitive inquiry and depends "on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles." (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438 [41 Cal. Rptr. 2d 362, 895 P.2d 469].) " '[I]mpracticability and futility' involve a determination of ' "excessive and unreasonable difficulty or expense," ' in light of all the circumstances of the particular case." (Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 554 [86 Cal. Rptr. 297, 468 P.2d 553].)

The question of impossibility, impracticability, or futility is best resolved by the trial court, which "is in the most advantageous position to evaluate these diverse factual matters in the first instance." (Brunzell Constr. Co. v. Wagner, supra, 2 Cal.3d at p. 555.) The plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340(c) exception. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 590 [86 Cal. Rptr. 3d 784].) " 'The "reasonable diligence" standard is an appropriate guideline for evaluating whether it was impossible, impracticable, or futile for the plaintiff to comply with [the statutory five-year constraint] due to causes beyond his or her control.' " (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal. App. 3d 1280, 1287-1288 [279 Cal. Rptr. 488].) The trial court has discretion to determine whether that exception applies, and its decision will be upheld unless the plaintiff has proved that the trial court abused its discretion. (Perez, at pp. 590-591; see also Lauriton v. Carnation Co. (1989) 215 Cal. App. 3d 161, 164 [263 Cal. Rptr. 476].) Although " ' " '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; ... the section does not contemplate that time consumed in such ordinary proceedings are to be excluded from a computation of the five-year period.' " ' " (Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court, supra, 217 Cal. App. 3d 464, 472; see J.C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 670 [343 P.2d 919].)

Bruns, at 730-732, italics in original. 

As noted in Bruns, “[t]he plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340(c) exception.”  Bruns, at 731, citing Perez v. Grajales (2008) 169 Cal.App.4th 580, 590. 

The exception set forth in subdivision (c) requires a plaintiff to prove the following:

“a circumstance of impracticability…”;

“a causal connection between that circumstance and moving the case to trial…” and 

that plaintiff “exercised reasonable diligence in prosecuting the case.”  

Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336.  

“Because the purpose of the five-year statute for bringing a case to trial is to prevent avoidable delay for too long a period, the “critical factor” as to whether the impracticability exception applies to a given factual situation is whether the plaintiff has exercised “reasonable diligence” in prosecuting his or her case. (Hughes, supra, 5 Cal.App.4th at p. 67, 6 Cal.Rptr.2d 616; Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438, 41 Cal.Rptr.2d 362, 895 P.2d 469.) This duty of diligence applies “at all stages of the proceedings,” and the level of diligence required increases as the five-year deadline approaches. (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340, 242 Cal.Rptr. 538; Wilshire, supra, 228 Cal.App.3d at p. 1287, 279 Cal.Rptr. 488.) The exercise of reasonable diligence includes a duty to monitor the case in the trial court to ascertain whether any filing, scheduling or calendaring errors have occurred.” (Wilshire, supra, 228 Cal.App.3d at p. 1287, 279 Cal.Rptr. 488; see 6 Witkin, Cal. Procedure (1997) Proceedings Without Trial, § 379, pp. 781–782.)

As noted, the trial court did not make a finding whether Tamburina exercised reasonable diligence during all stages of the proceedings, with the twist that the level of diligence required increases as the five-year deadline approaches. We must remand for the trial court to make this finding.”

Tamburina, at 336, italics in the original. 

Plaintiff here makes a very brief legal argument, arguing that recently discovered events and obstruction of reasonable discovery have been objected to at every turn, and that “reasonable grounds for diligence have been shown in the Declaration of Blake J. Lindemann, and impracticability has been demonstrated.”  The memorandum does not point to any particular evidence or portion of the Declaration.  Plaintiff evidently expects the court and defendants to cull through the declaration and its exhibits to determine which facts support impracticability in connection with this argument.  

In any case, defendants have cited to case law pursuant to which a party named as a Doe is considered a party from the date of the original filing of the complaint.  Gray v. Firthe (1987) 194 Cal.App. 3d 202, 209 (“As to a defendant either expressly named in the original complaint or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint.”).  

The court of appeal in Gray interpreted sections 583.310 and 583.420 with respect to revisions made to the entire statutory scheme in 1984, finding that the use of the phrase, “after the action is commenced against defendant,” as consistently used in the amended current statutory language, was intended to apply to a defendant sued by a fictitious name from the time the complaint is filed, as confirmed by the Law Revision Comments to another amended section using that language, CCP section 583.210:

“We observe initially that changing the operative phrase from “within five years after the plaintiff has filed his action” (former § 583, subd. (b)) to “after the action is commenced against the defendant” (new § 583.310) manifests a clear intent to change the law.

The new statutory scheme uses the phrase “after the action is commenced against the defendant” throughout its provisions. New section 583.420 provides for the discretionary dismissal of actions not brought to trial within specified periods “after the action is commenced against the defendant.” Section 583.210 provides that service of the summons and complaint shall be made upon a defendant within three years “after the action is commenced against the defendant.” In commenting on new section 583.210, the Law Revision Commission stated: “Section 583.210 applies to a defendant sued by a fictitious name from the time the complaint is filed and to a defendant added by amendment of the complaint from the time the amendment is made.” (17 Cal. Law Revision Com. Rep. (June 1983) p. 931.)”

Gray, at 208, footnotes omitted.  

Here, there is no question that Olympus was added to this action in place of Doe 1. [Hoffman Decl., Ex. H, Lindemann Decl., Ex. 5].  In addition, defendants rely on numerous instances in this lawsuit where plaintiff successfully argued that since Olympus had been substituted in by Doe Amendment, the filing of that amendment related back to the original filing date of the complaint.  For example, in response to a demurrer Olympus filed to plaintiff’s Second Amended Complaint, plaintiff in opposition filed on March 1, 2021 (erroneously directed to the First Amended Complaint), argued that all of his claims in the complaint “relate back” to the filing of the initial complaint filed on January 22, 2018.  [Hoffman Decl., Ex. S, Opposition, p. 1:3-4, and throughout, Ex P, Opposition to Demurrer to FAC, p. 1:4-6, and throughout, Ex. L, Opposition to Demurrer to Complaint and Motion for Sanctions]. Plaintiff successfully has argued based on this theory that the action against Olympus is not barred by the applicable statute of limitations in opposition to Olympus’ motion for summary judgment, the ruling on which plaintiff has submitted with the opposition papers.  [See Lindemann Decl., Ex. 6, pp. Steger 141-144]. Plaintiff submitted a detailed declaration in support of the opposition, which the court relied upon to deny the motion.  [Id.]  

To the extent plaintiff seems to argue that the court previously had determined that the time before Olympus was named should be excluded as to Olympus, plaintiff evidently relies on a minute order from June 16, 2023, in which the court set forth its tentative ruling concerning a motion for summary judgment/adjudication filed by defendant Olympus, and plaintiff’s ex parte application for order to continue hearing on motion for summary judgment and relief from five year rule.    

“Ex Parte Application for Order to Continue Hearing on Motion for Summary Judgment, and Relief from Five Year Rule filed by Plaintiff Jason Steger is DENIED based upon Plaintiff's counsel's request to keep the same trial date, since there is no stipulation from defense counsel.”   

[Minute Order 06/16/2023, p. 34 of 34]. 

The court’s proposed ruling on those issues accordingly did not become the order of the court. 

Plaintiff does submit the transcript from the hearing on that matter, in which it was also stated that the court’s tentative ruling concerning the time calculations did not become the final ruling of the court, as plaintiff’s ex parte application to continue the trial date beyond July of 2023 was withdrawn by plaintiff.  Plaintiff evidently made this determination to keep the trial date before July 21, 2023 based on remaining concerns that there remained a real risk that failing to meet the five-year deadline as stipulated and previously calculated could result in dismissal of the action.  

“THE COURT: SO THE TRIAL DATE REMAINS THE SAME. ALL RIGHT. NOW, SO THE EX-PARTE, TECHNICALLY, IS DENIED AT THIS POINT. THAT IS THE RULING.  IT'S DENIED WITHOUT PREJUDICE IF YOU WANTED TO BRING THE MOTION AGAIN. BUT THAT SORT OF REASONING THAT'S IN THE TENTATIVE WOULD STILL APPLY. THE COURT DOES FIND IT'S EXCLUDABLE TIME, BUT MR. LINDEMANN REACHES A DECISION ABOUT WHAT HE WANTS TO DO SO WITH THAT IN LIGHT OF THE NOW STIPULATION TO EXTEND THE FIVE-YEAR RULE.”

[Lindemann Decl., Ex. 8, Reporter’s Transcript of Oral Proceedings, June 16, 2023, p. 7:19-26].

The court also commented:

“PLAINTIFF IS ELECTING TO GO TO TRIAL SO AS TO NOT RISK A DISMISSAL FROM THE FIVE-YEAR RULE, WHICH, YOU KNOW, SINCE THE COURT'S FINDING EXCLUDABLE TIME MOST LIKELY, YOU KNOW, NOT GRANT THAT DISMISSAL, BUT IT WILL BE IN THE RECORD. 

[Lindemann Decl., Ex. 8, Reporter’s Transcript of Oral Proceedings, June 16, 2023, p. 35:24-28].

While the court suggested that similar findings regarding tolling would be likely, it did not enter a final order concerning such findings because the ex parte application requesting them had been withdrawn, with the trial date not continued, at plaintiff’s request. 

Accordingly, to the extent plaintiff seems to argue that these motions to dismiss are improper motions for reconsideration, plaintiff fails to point to any previous order by the court which defendants are improperly seeking to be reconsidered.  

There has been no previous motion to dismiss the action for violation of the five-year statute, and plaintiff has failed to meet its burden to establish that the current motions challenge some previous ruling.   

“THE COURT: …THE COURT PRELIMINARILY MADE FINDINGS AS TO WHETHER THE FIVE-YEAR RULE APPLIED TO OLYMPUS, WHICH WAS NEVER REALLY FULLY BRIEFED, OLYMPUS’S ARGUMENT BEING OLYMPUS WAS ADDED AS A DOE. SO THE TIMEFRAME RELATES TO WHEN THE COMPLAINT WAS FILED. AND OLYMPUS WAS NOT ADDED PURSUANT TO MOTION FOR LEAVE TO AMEND. THAT ISSUE HAS NOT BEEN FULLY BRIEFED. WE NEVER - WE DID NOT FULLY ADDRESS IT.

MR. HOFFMAN: WE AGREE, YOUR HONOR. 

THE COURT: OKAY. SO THAT’S OUT THERE STILL. AND THE COURT HASN’T RULED ON THAT YET. THE COURT NOTED IN THE -- FOR JUNE 16TH, THIS IS A MURKY AREA THAT HASN’T BEEN FULLY BRIEFED, IS WHAT THE COURT NOTED AT THE TIME. THE COURT THEN MADE A PRELIMINARY FINDING THAT THE CASE WAS JURISDICTIONALLY STAYED BETWEEN THE TIMEFRAME WHEN IT WAS DESIGNATED COMPLICATED IN THE HUB AND THE TIMEFRAME IT GOT HERE.· OKAY? SO THAT THE COURT MADE A PRELIMINARY – WAS MORE LIKE AN OBSERVATION AS OPPOSED TO A RULING.  SO IN OTHER WORDS, THIS ALL HAS TO BE FULLY BRIEFED, AND IT HASN’T BEEN FULLY BRIEFED. AND AT THE TIME, YOU KNOW, WHEN WE HAD YOUR HEARING ON JUNE 16TH, THERE WAS A LOT OF DISCUSSION ABOUT WHAT WAS GOING ON AND THAT WAS JUST SORT OF ALMOST LIKE ADVISORY.  IT’S NOT -- I WOULD NOT SAY IT’S LAW OF THE CASE.  SO EVERYONE WOULD BE BRIEFING THAT.… 

THE COURT IS NOT GOING TO SIGN AN ORDER CONTINUING THE TRIAL ON THAT BASIS UNTIL EVERYTHING’S FULLY BRIEFED. BUT NOTHING CAN BE FULLY BRIEFED UNTIL AFTER THE FIVE-YEAR RULE HAS PASSED.· BECAUSE THERE’S NO STANDING [sic] TO BRING A MOTION UNTIL AFTER, QUOTE, IT’S PASSED.”

[Hoffman Decl., Ex. XX, Transcript of Proceedings, June 29, 2023, pp. 30-34].  

“THE COURT: THE COURT HAS PREVIOUSLY COMMENTED, IN A PRIOR EX PARTE APPLICATION LAST WEEK, THAT A TENTATIVE RULING ON SUMMARY JUDGMENT ON JUNE 16TH, 2023, WHICH ALSO HAD AN EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE FOR THE SAME DATE, DID NOT WITH FINALITY ADJUDICATE WHETHER THERE WAS 127 EXTRA DAYS OF EXCLUDABLE TIME, BASED ON THE TIME PERIOD IT TOOK, ONCE THE PI HUB DESIGNATED A CASE COMPLICATED BEFORE IT WAS SET FOR THE FIRST MATTER OR HEARING IN DEPARTMENT D, ABOUT 127 DAYS LATER. THE COURT NOTED THAT THAT COMMENT WAS ADVISORY.  THE COURT ALSO NOTED, AT THE TIME, THAT THE PLAINTIFFS WITHDREW THEIR REQUEST TO CONTINUE THE TRIAL ON THE JUNE 16TH, 2023 SUMMARY JUDGMENT HEARING DATE. SO THERE WAS TECHNICALLY NO ADJUDICATION OF THAT ISSUE.·

[Hoffman Decl., Ex. BBB, Transcript of Proceedings, July 3, 2023, pp. 4:17-5:3]. 

Defendants in the moving papers and reply also argue that the stipulation between the parties regarding the five-year deadline eliminated any alleged tolling periods prior to the stipulation, despite reserving the right of the parties to seek extensions after the stipulation.   Defendants cite to Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, in which the Second District analyzed the language of the stipulation in that case, which expressly identified two time periods prior to the stipulation when the action was stayed by the trial court, and agreed that the five year period was tolled during that period, and also stated that the parties had agreed to identify the five year period to bring the action to trial, and then stated, that:

“[a]bsent any further periods wherein the Superior Court's jurisdiction to try the Farmers action is suspended under Civil Code [sic] § 583.340 and/or any further Court orders or party stipulations extending or tolling the time period to bring either action to trial, the five-year time period to bring the Farmers action to trial under Code of Civil Procedure § 583.310 does not expire until June 17, 2010.” (Italics added.)

As did the trial court, we construe the word “further” as used in this context to mean “future” rather than “additional.”

Dowling, at 695-696, italics in the original.    

Here, the language from the order refers to the positions taken by the parties and does not include any stipulation to, or mention of, prior extensions, or expressly agree to the five-year deadline subject to past exclusions.  The order expressly states: “This Order is without prejudice as to the Plaintiff’s right to seek extensions of the five-year period, and Defendants’ right to oppose any such request.” [Order, 10/04/2022, p. 2; See Hoffman Decl., Exs. EE, FF].   The situation here does not squarely fall within Dowling, and the court does not find that the stipulation bars plaintiff from pursuing arguments concerning statutory exceptions extending the five-year deadline which occurred before the date of the order.  

As discussed above, and below, however, the court finds that plaintiff has not established that such exceptions prior to October 2022 apply here.  

Judicial Reassignment 

Third, plaintiff argues that periods of judicial reassignment must be excluded from the five-year calculation.   

Plaintiff argues that the case was originally filed on January 22, 2018, was assigned to the Spring Street courthouse, and was transferred and reassigned to this Department on October 3, 2019.  The file shows the date was actually October 3, 2018.  Plaintiff argues that the period from when the case was filed to the date the case was reassigned should be excluded. Plaintiff has included among plaintiff’s exhibits a copy of the Order Transferring Personal Injury (PI) Case to Independent Calendar (IC) Court, which was filed by department 1 on July 11, 2028.  [Lindemann Decl., Ex. 1].  

Plaintiff relies on Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686, in which the court of appeal held that when a litigant seeks to disqualify a judge pursuant to CCP section 170.6, “the period that the trial is held in abeyance pending the assignment of another judge is to be disregarded in considering a subsequent motion to dismiss.”  Nail, at 686.  This holding was recognized as proper by the California Supreme Court in Hartman v. Santamarina (1982) 30 Cal.3d 762, 768, and applied to extend the five-year deadline in that case.  

Here, this is not a case where a CCP section 170.6 challenge was made, pursuant to which the judge challenged loses any authority over the case and is affirmatively prohibited from acting in connection with the matter.  This case’s situation was instead a garden variety transfer of the case from the Personal Injury department to an Independent Calendar Court due to the complexity of the action, not to any other issue pursuant to which the new department could not act in the matter.     

Defendants in their moving papers argue that this reassignment was not a circumstance of impracticability, but an “ordinary incident[ ] of proceeding,” such as “waiting for a place on the court’s calendar.”  Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1101, quoting Bruns, at 731.   

Defendants also rely on case law in which it has been held that where a claimed circumstance of impracticability is remote in time from the running of the five-year cutoff, and did not interfere with plaintiff prosecuting his case, such circumstances would have no causal effect on the failure to bring the action to trial by the cut-off.   In Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, the court of appeal found the trial court had not abused its discretion in dismissing a case based on plaintiffs’ failure to try the case within five years, finding that the five-year period had not been tolled during two periods when the Riverside County Superior Court had imposed moratoriums on civil trials, where it was acknowledged by plaintiffs that the moratorium periods in 2004 and 2005 were remote in time relative to the five-year statutory cutoff on June 6, 2008.  The court of appeal reasoned:

“While the two court-declared moratoriums on civil trials prevented civil cases from being tried, these moratoriums did not prevent or interfere with plaintiffs' prosecuting their case. It is apparent from the record that plaintiffs were not ready for trial at the time of the moratoriums. Therefore, as to the instant case, the two moratoriums did not make it “impossible, impracticable, or futile” to bring the action to trial. (§ 583.340, subd. (c).)”

Jordan, at 1421. 

Defendants argue that likewise, the reassignment of this case only six months after it began, five years ago, had no causal effect on plaintiff’s failure to bring the case to trial by July 21, 2023.  

In fact, it appears that during the time period referenced, this case was not only not prevented from being prosecuted but was actively pursued.   

Defendants in opposition also submit evidence showing that during the period from July 11, 2018, when the court, Department 2, Judge Torres Rizk presiding, filed an Order Transferring Personal Injury (PI) Case to Independent Calendar (IC) Court, Department D, through November 15, 2018, when this Department held its Status Conference re Transfer from Central Civil Complex Personal Injury Case, the parties were exchanging discovery.  [Tomlinson Decl., para. 5-9, Exs. B, C, D; Hoffman Decl., paras. 5, 6, Exs. B, C, D].  Counsel for Olympus indicates that during the relevant period, the parties exchanged 18 sets of discovery requests or responses, with no objections asserted that the case had been stayed.  [Hoffman Decl., para. 6, Ex. C].   

In fact, the file shows that at least nine discovery motions were filed during this period, and several of them were opposed.  [Docket, entries between July 11, 2018 and November 15 2018; Tomlinson Decl., Ex. B; 8/16/2018, 09/13/2018 (6 motions), 9/25/2023(2 motions); Oppositions filed 10/30/2018 (7)].  

This period is not a period which would qualify as a period during which it was impracticable or futile to bring the case to trial or to pursue the matter, when in fact the case was being actively litigated.  The period of reassignment, which is a standard delay, occurring at the beginning of the litigation, when the case was not prevented from being brought to trial, is not a period which is excluded from the five-year calculation. 

The doctor defendants also argue in the reply that in connection with any possible exclusion of time with respect to the reassignment, the court previously was prepared to recognize a period of extension of only 127 days, so through November 25, 2023, when the case has clearly not been brought to trial by that date in any case. 

Plaintiff has failed to establish that the period of reassignment presents a circumstance of impracticability and has failed to make any attempt to show that such circumstance was causally related to the failure to bring the case to trial by the deadline, or to show that plaintiff acted with reasonable diligence. The court accordingly does not recognize any exclusion during the period the matter was reassigned from Department 1.  

Period When Defendant Olympus not Joined

Plaintiff argues that, finally, the period during which a defendant is not joined to a case does not apply toward the five-year rule.  It is not clear how this argument is different from the second argument, above.   In any case, plaintiff relies on Alpha Media Resort Inv. Cases (2019) 39 Cal.App.5th 1121, Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 555-556, Dale v. ITT Life Insurance Co. (1989) 207 Cal.App.3d 495, 498-99 and Maguire v. Collier (1975) 49 Cal.App.3d 309. 

The court of appeal in Alpha Media Resort Investment Cases rejected an argument that plaintiffs had failed to use reasonable diligence in prosecuting the subject actions because plaintiffs could have obtained, but did not obtain, a default judgment against the defendant moving for dismissal under the five-year rule.  The court of appeal found that the trial court had not abused its discretion in weighing against the failure to obtain default the extenuating circumstances in that case which justified a delay in getting the cases ready for trial in a timely manner.  Alpha Media, at 1330.   There is no issue of default not being obtained against any of the defendants in this case. 

In Brunzell, the California Supreme Court concluded that the bare fact that a case was severable as to certain defendants does not preclude application of the “impracticable and futile exception,” under statute, as interpreted by the case law.  Brunzell, at 548. 

To the extent plaintiff relies on Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 499, in that case the court of appeal held that the five-year period is tolled from the date of entry of default of a defendant, as well as the period when the default judgment remains in effect, which, in that case, extended through a successful appeal of an order denying a motion to set aside the default and default judgment.  Dale, at 499.  The court of appeal in Dale relied on Maguire v. Collier (1975) 49 Cal.App.3d 309, also cited by plaintiff here:

“In Maguire v. Collier (1975) 49 Cal.App.3d 309 [122 Cal.Rptr. 510] the court recognized the impracticability of bringing a case to trial when the defendant is already in default. (Id., at p. 313.) Maguire held the period during which a party is in default, “as well as the period during which a default judgment is in effect,” is excluded from computation of the five-year period. (Ibid.)”

Dale, at 498-499.

It is not clear how any conduct of the doctors in this respect would impact the time calculation as to Olympus.  There is no showing that Olympus entered into a valid stipulation to exclude the time before they were officially substituted as the true name of Doe 1, and Olympus has consistently argued that no exclusion of time applies.    

It is also clear that Olympus was never in default in this matter, and it does not appear that the court was at any time deprived of jurisdiction over this party in the manner a default would operate.  Moreover, plaintiff has failed to address or distinguish the legal authorities discussed above which indicate that the date of the filing of the original complaint as to named parties and fictitiously named defendants, such as Olympus as Doe 1 here, is considered the commencement of the action for purposes of the five-year rule calculation. 

Plaintiff again has not met plaintiff’s burden of showing that the five-year deadline was subject to an exclusion such that it did not expire on July 21, 2023. 

There is no dispute that the case was not brought to trial by that date.  The motions to dismiss accordingly are granted on these grounds based on this court’s finding that none of the above arguments serve to toll the five year rule. 

ISSUES TO BE ADDRESSED AND RESOLVED AT THIS CONTINUED HEARING.    

Period Referred to Long-Cause

As previously observed by the court, plaintiff in the original opposition does not clearly argue that the periods following July 21, 2023, while the matter was referred to long-cause, should be excluded from the calculation.

To the extent plaintiff intends to argue that the periods following July 21, 2023 were properly designated by the court as subject to subdivision (c), defendants in their moving papers argue that plaintiff cannot in connection with those extensions establish the essential elements of the subdivision (c) determination that there was a causal connection between the circumstance on which plaintiff relies and the failure to satisfy the five year requirement, or that plaintiff exercised reasonable diligence.   

Defendants argue that it has been observed by the long- cause court, and it remains the situation, that this case is not ready for trial. 

 

Defendants argue that the court’s referral for long cause determination on July 13, 2023 did not toll the five-year deadline, arguing that this is not a period of impracticability, but, again, simply part of the ordinary incidents of proceedings.  Defendants cite to case law under which it is held that the normal time of waiting for “a place on the court’s calendar or securing a jury” are not within the contemplation of the exceptions for exclusion for a computation of the applicable period.   In Standard Oil Co. v. Superior Court (1976) 61 Cal.App.3d 852, the Second District rejected an argument that impracticability arose out of class action service and notice issues, which the Second District characterized as “plaintiff’s delay in taking certain steps necessary to ready a class action for trial,” and reversed the trial court’s order denying defendant’s motion to dismiss under the five-year rule.  Standard Oil, at 860.  

Defendants also rely on Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, in which the Second District conducted the causal connection analysis in finding that the trial court had not abused its discretion in dismissing a case under the five-year rule over plaintiff’s objection that there had been a period of impracticability to be excluded from the five-year period due to one of the defendant’s attorneys committing suicide.   

The Second District emphasized that a plaintiff has a duty to exercise reasonable diligence to ensure that a case is brought to trial within the statutory period: 

“The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.' [Citation.] 'Reasonable diligence places on a plaintiff the affirmative duty to make every reasonable effort to bring a case to trial within five years, even during the last month of its statutory life. [Citation.]”

Sanchez, at 1270, quoting Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App. 4th 494, 502, italics added by Sanchez court. 

The Second District set forth the standard of review to be applied:

The determination “of whether the prosecution of an action was indeed impossible, impracticable, or futile during any period of time, and hence, the determination of whether the impossibility exception to the five-year statute applies, is a matter within the trial court's discretion. Such determination will not be disturbed on appeal unless an abuse of discretion is shown. [Citations.]” (Hughes v. Kimble, supra, 5 Cal.App.4th at p. 71.)

Where a trial court has discretionary power to decide an issue, we are not authorized to substitute our judgment for that of the trial court. (Gilbert v. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240, 1250 [84 Cal.Rptr.2d 204].) Reversible abuse exists only if there is no reasonable basis for the trial court's action, so that the trial court's decision exceeds the bounds of reason. (Ibid.; Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1470 [28 Cal.Rptr.2d 734].)

Sanchez, at 1271. 

“In the instant case, there was no causal connection between the circumstances upon which plaintiffs are relying and their failure to bring the action to trial within five years. The failure to bring the action to trial within five years was not due to the suicide of Balderrama's attorney; nor was it due to the four-month period between the date Balderrama's need for independent counsel arose and Levin's entry into the case; nor was it due to the 69-day period during which plaintiffs sought writ review of a discovery ruling. Thus, the failure to try the case within five years was not impracticable for the reasons proffered.

Rather, plaintiffs' failure to bring the action to trial within five years is attributable to their counsel's lack of diligence in failing to keep apprised of the case's chronology. The record reflects plaintiffs' counsel was under the misapprehension that the five-year anniversary of the case's inception would occur sometime in June or July of 2002. Consequently, on September 25, 2001, when the trial court selected a trial date of January 29, 2002, plaintiffs' counsel failed to alert the trial court to the fact that January 10, 2002, was the five-year mark and acquiesced in the setting of a trial date beyond the five-year period.

Because it was the inadequate oversight of plaintiffs' counsel, rather than Levin's death, which led to plaintiffs' failure to bring the action to trial within five years, there was no causal connection between the circumstances upon which plaintiffs rely and their failure to satisfy the five-year requirement. In short, it was not impracticable to bring the action to trial for the reasons proffered.”

Sanchez, at 1273. 

 

Defendants also argue that plaintiff’s last-minute submission of the case to long cause was not the cause of his violation of the five-year deadline, because the case was not trial ready when the circumstance arose.  Defendants argue that to date plaintiff’s counsel has still not produced his most important expert in this matter, Dr. Gazi, for a full and fair deposition.  Defendants point out that even Department 1 has confirmed that the case is “not trial ready,” as of the time the case was evaluated by Department 1, which was after the five-year deadline had passed.  [Tomlinson Decl. para. 51, Ex. BBB; Lindemann Decl., Ex. 10].  

Defendants further argue that because the case was not trial ready when it was sent to long cause, as a matter of law, that period had no causal effect on plaintiff’s violation of the five-year deadline, and that such a circumstance does not reflect reasonable diligence.   With respect to diligence, defendants also argue that plaintiff was not reasonably diligent when he sought to force the case to long cause with only ten days remaining before the five-year deadline, and that if plaintiff truly felt the matter should be a long cause, he should have begun that process with sufficient time left in the statutory period.  

Defendants cite to Salinas v. Atchison (1992) 5 Cal.App.4th 1, 14, in which the court of appeal observed:

“Plaintiff continues to emphasize that he filed the at-issue memorandum eighteen months before the expiration of the five-year period, an “early” filing that he expected would produce the scheduling of a trial date before the end of the five-year period. However, the record before us strongly suggests it was common knowledge among members of the legal community in Kern County that a delay of 18 months after filing the at-issue memorandum before a trial setting conference was held was not unusual. Trial counsel must be charged with knowledge of the time constraints and courtroom limitations in the particular counties in which they practice.  Under the instant circumstances, the failure of plaintiff's counsel to anticipate that he would have difficulty getting a timely trial date, absent a preferential setting, is not an adequate excuse for the overall delay.”

Salinas, at 14.  

In Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 134, the Second District found that the trial court had not abused its discretion in denying a motion to specially set a matter for trial which had been brought only 40 days prior to the expiration of the five-year deadline, and at a time when the trial court “correctly observed that the case was not at issue.” Karubian, at 139-40.

As noted above, the duty of diligence applies “at all stages of the proceedings,” and the level of diligence required increases as the five-year deadline approaches.  Tejeda v. Blas (1987) 196 Cal.App.3d 1335, 1340. 

Defendants also argue that on July 13, 2023, when plaintiff asked the court to refer the case for a long-cause determination, under the Code it was already too late to do so.  Defendants rely on CCP section 594, which provides:

“(a) In superior courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days' notice of such trial or five days' notice of the trial in an unlawful detainer action as specified in subdivision (b). If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice.

(b) The notice to the adverse party required by subdivision (a) shall be served by mail on all the parties by the clerk of the court not less than 20 days prior to the date set for trial. In an unlawful detainer action where notice is served by mail that service shall be mailed not less than 10 days prior to the date set for trial. If notice is not served by the clerk as required by this subdivision, it may be served by mail by any party on the adverse party not less than 15 days prior to the date set for trial, and in an unlawful detainer action where notice is served by mail that service shall be mailed not less than 10 days prior to the date set for trial. The time provisions of Section 1013 shall not serve to extend the notice of trial requirements under this subdivision for unlawful detainer actions. If notice is served by the clerk, proof thereof may be made by introduction into evidence of the clerk's certificate pursuant to subdivision (3) of Section 1013a or other competent evidence. If notice is served by a party, proof may be made by introduction into evidence of an affidavit or certificate pursuant to subdivision (1) or (2) of Section 1013a or other competent evidence. The provisions of this subdivision are exclusive.”

Defendants also rely on Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 1567, in which the Second District observed:

“A trial court must comply with Code of Civil Procedure section 594, subdivision (a), which requires that an issue of fact may not be tried in the absence of an adverse party unless the latter has been given 15 days notice of the date set for trial. With only 11 days remaining before the trial deadline, appellants obviously could not meet Code of Civil Procedure section 594’s requirement of 15 days’ notice of trial to the adverse parties, and consequently the trial court was without jurisdiction to set the case for trial before the August 20, 1984 deadline.”           

Martin, at 1567. 

Defendants argue that plaintiff’s clear lack of diligence in this matter is further highlighted by the fact that plaintiff has made minimal movement to obtain the additional discovery plaintiff has stated he needs to complete each time he has requested a trial date continuance from the court. Defendant Olympus argues, for example, that plaintiff failed to serve a discovery request to inspect the allegedly defective medical device until after the five-year deadline had passed, on August 2, 2023, which is discovery which a diligent plaintiff would have pursued among the first item of discovery to be sought.  [Hoffman Decl, para. 57].  

Moreover, defendants suggest that plaintiff’s sudden interest in a long cause determination was a contrived strategic move to avoid the five-year deadline, submitting a transcript from a hearing on June 21, 2023, only weeks before the July 11, 2023 hearing, when plaintiff’s counsel stated to the court that trial would take no longer than three weeks:

“THE COURT:  ANYBODY HAVE TIME ESTIMATES?

MR.LINDEMANN:  FROM PLAINTIFF’S PERSPECTIVE, I THINK IT’S A THREE-WEEK TRIAL.

MR. LINDEMANN:  I THINK IT INCLUDES VOIR DIRE.” 

[Hoffman Decl., Ex. GGG, Transcript of Proceedings, June 21, 2023, p. 8:16-21; Tomlinson Decl., para. 45, Ex. XX, p. 8:16-21] 

Despite plaintiff’s suggestion that the court initiated the argument that the matter was a long-cause case, the transcripts submitted by defendants show that the matter was raised with some enthusiasm and effort by plaintiff at the July 11, 2023 hearing on the first Final Status Conference before the July 2023 trial date. 

“THE COURT: WELL, RIGHT NOW WE HAVE A WITNESS LIST FROM THE PLAINTIFFS, THAT'S NOT PREPARED PROPERLY, BUT THEY'RE ESTIMATING 104 HOURS. THAT MAKES IT A LONG CAUSE CASE. I DON'T THINK THIS IS A LONG CAUSE CASE. 

MR. HOFFMAN:· IT'S ABSOLUTELY NOT, YOUR HONOR.  

THE COURT: BUT – 

MR. LINDEMANN: YOUR HONOR, I WOULD JUST POINT OUT I CALLED ALL THREE LONG CAUSE DEPARTMENTS IN LA. THEY ALL HAVE TRIAL FULLY OPEN NEXT WEEK, THEY SAID. SO I THINK THAT'S WHERE THIS MIGHT END UP BEING. I CALLED THREE OF THE JUDGES ON THE LIST. SO THAT MIGHT BE A POSSIBLE LANDING PLACE FOR THIS CASE NEXT MONDAY.”

[Tomlinson Decl., Ex.  WW, Transcript of Proceedings, July 11, 2023, p. 17:9-21; See also Hoffman Decl., Ex. HHH]. 

During that hearing, the court indicated that the court was not going to send the matter to long-cause and suggested that plaintiff apply ex parte to the long-cause court for a long-cause determination and trial date.   [Transcript of Proceedings, July 11, 2023, pp. 22:25, 24, 27]. 

By the time of the second final status conference on July 13, 2023, the court, faced with a significant time estimate for the trial by plaintiff, issued the following order:

“The matter is called for hearing. 

Over defense counsel’s' objection, the Court finds pursuant to 583.340(c) it is impossible, impractical, and futile to bring the case to trial by the expiration of the 5-Year Rule. The Court orders the 5-year statute extended to 09/15/2023 for the period of time that the case is being assessed by department 1 for long-cause trial designation at Stanley Mosk Courthouse. 

Counsel are ordered to meet and confer re: submitting a Long-Cause Package. The Court orders counsel to jointly submit the Long-Cause Package to Department 1 by no later than noon on 07/24/2023.

[Tomlinson Decl., Ex. YY, Minute Order 07/13/2023, p. 1 of 2]. 

The transcript of the hearing from that date reflects the following exchange:

“THE COURT: OKAY. SO JUST SO YOU KNOW, WHAT'S BEING DONE HERE, IF IT GOES TO LONG CAUSE AND HOW THE RULE'S EXTENDED IS STANDARD PROCEDURE. I RESEARCHED THIS. I DIDN'T GO, WHY DON'T I DO THAT, OKAY?  I ASKED AROUND ABOUT HOW IT WORKS. I ASKED OTHER JUDGES. SO THIS IS NOT JUST SOMETHING I'M SHOOTING FROM THE HIP AND DOING. SO A MOTION LIKE THAT DOESN'T SOUND LIKE IT WOULD BE SUCCESSFUL, BUT I DON'T KNOW. YOU COULD -- BUT THAT'S WHY -- I'M DOING IT THAT WAY BECAUSE, AS I'VE RESEARCHED THIS MYSELF AND ASKED A LOT OF OTHER QUESTIONS ABOUT HOW IT WORKS, THAT'S HOW I CAME UP WITH THAT.  

MR. HOFFMAN: YOUR HONOR, I THINK THE MAJOR DIFFERENCE HERE IS THAT PLAINTIFF'S COUNSEL ARE ASKING THE COURT TO EXTEND FACT DISCOVERY BEYOND -- SO THIS CASE IS -- THEY'RE TELLING THE COURT THAT THE COURT'S NOT READY FOR TRIAL. THEY WANT MORE FACT DISCOVERY. SO THEY'RE NOT READY FOR IT TO BE SENT TO TRIAL RIGHT NOW.”

[Tomlinson Decl., Ex ZZ, Transcript of Proceedings, July 13, 2023, pp.16:26 through 17:17]. 

The key issue with respect to the delay occasioned by the long-cause determination in this case, as opposed to the usual case where a long-cause determination is sought, is the issue identified by defendants at the July 13, 2023 hearing, and again in these motions, which continues to be an issue in this case, that is, that the case was and is not ready for trial at the time the long-cause determination is being sought. 

“25. Plaintiff continues to announce trial readiness on the record in the case, even acknowledging he would prefer to have an expert lineup that could be trusted to do the job agreed notwithstanding trial readiness, which has led to substitutions. There are over 1,800 document numbers on the register of actions in this dispute. There has been no finding that Plaintiff is not trial ready, nor has he or his counsel stated in court that that the parties are not ready for trial. Based on the Court’s orders issued on July 14, 2023, August 18, 2023, and September 29, 2023, Plaintiff through counsel, has spent tens of thousands of dollars preparing for trial in reliance on these findings regarding dates excluded. Plaintiff would be prejudiced as his serious life altering injuries sustained went unaddressed. We announced to the Court on each occasion that we insisted on proceeding to trial unless an order was entered excluding dates from trial. Plaintiff has submitted all pre-trial filings, exhibits lists, motions in limine, oppositions to motion in limine and other pre-trial filings.”

[Lindemann Decl., para. 25]. 

  

Defendants cite to Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, in which the court of appeal found that the trial court had not erred in that case in failing to toll the five-year clock for the period during which an order compelling a co-plaintiff to arbitration was in effect.   The court of appeal found that failing to bring to trial within five years the claims which had been expressly permitted by the court to proceed during the arbitration warranted dismissal of those claims, and no impossibility had been shown.  Tanguilig, at 323-325. 

““[C]ase law” under section 583.310 has “long held that ‘[f]or the tolling provision of section 583.340, subdivision [ (c) ] to apply, there must be “a period of impossibility, impracticability or futility, over which  plaintiff had no control,” ’ because the statute is designed to prevent avoidable delay.” (Gaines, supra, 62 Cal.4th at p. 1102, 199 Cal.Rptr.3d 137, 365 P.3d 904.) The fact is Tanguilig chose, apparently as tactical matter, to include within the scope of her PAGA claim and within the putative class she sought to represent, employees who had signed an arbitration agreement. Surely, she knew—at the least she should have known—the inevitable consequence: Pleading claims that encompassed signatories to an arbitration agreement was bound to draw a motion to compel arbitration and potentially entangle the rest of the case in delays arising out of that motion, which is exactly what happened. Bearing in mind the employment litigation setting before us, we view any procedural complexities and delays occasioned by the Arbitration Order as not only predictable, but more importantly, invited. If entry of the Arbitration Order staying Pinela's claims had some collateral delaying effect on the pursuit of Tanguilig's claims, we view it as avoidable delay and thus conclude it cannot justify tolling.”

Tanguilig, at 328-329. 

Here, it is clear that plaintiff has not been diligent in pursuing having the trial commence within the five-year period.  The discovery difficulties upon which plaintiff apparently relies were not matters which were not within plaintiff’s control.  Those matters were within plaintiff’s control.  

Specifically, plaintiff’s counsel’s declaration acknowledges that plaintiff is encountering difficulties with his “expert lineup,” which appears to be a reference to the circumstances which have developed around the failure of plaintiff’s expert Dr. Gazi to cooperate in having his deposition completed in this matter prior to being called at trial.   

It appears from the file and the moving papers that Dr. Gazi was retained as plaintiff’s expert sometime prior to July 18, 2019, well before the five-year deadline had become an issue.  Specifically, the file shows that the court has recognized that the declarations of Dr. Gazi setting forth his opinions concerning medical causation and liability in this matter were first filed with the court on July 18, 2019. [Lindemann Decl., Ex. 2].  The court’s minute order of July 26, 2019 continued the hearing on the motions for summary judgment, noting that moving defendants had filed replies indicating that the Dr. Gazi declarations were not served with the opposition papers, and were untimely served and filed on July 18, 2019.  [Minute Order, 07/26/2019].  

Plaintiff has been well aware that Dr. Gazi would be required to be fully deposed before he would be permitted to testify at trial concerning his opinions in this matter.  (See CCP section 2034.300 (“...on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:…(d) Make that expert available for a deposition”).)  

  A critical fact in this matter is that Dr. Gazi is the only witness which has been designated by plaintiff to testify as to medical causation with respect to plaintiff’s injuries, which is a matter which must be established by plaintiff in this medical negligence action by expert medical evidence.  Salasguevera v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 385 (“medical causation can only be determined by expert medical testimony.”) 

Moreover, it appears that prior to the date of the second Final Status Conference in this matter, July 13, 2023, when counsel were ordered to jointly submit a long-cause package to Department 1, Dr. Gazi was also the only expert witness identified by plaintiff as offering liability testimony concerning the scopes, the basis for liability against defendant Olympus. 

The witness list reveals that as of the date of the expiration of the five-year deadline on July 21, 2023, Dr. Gazi was still the only expert identified on this subject matter.  As noted above, on August 4, 2023, Department 1 confirmed in a minute order that the case was “not trial ready,” for purposes of a long-cause evaluation. [Tomlinson Decl. para. 51, Ex. BBB; Lindemann Decl., Ex. 10]. 

Department 1 expressly stated in its minute order:

“The Court has reviewed the parties’ long cause trial submission and finds the parties are not trial ready. As an initial matter, Defendant filed a motion to compel a further deposition on July 24, 2023, indicating the parties have not concluded pretrial discovery. To be trial ready for purposes of a long cause trial assignment, all discovery must be completed.”

[Tomlinson Decl. para. 51, Ex. BBB; Lindemann Decl., Ex. 10, p. 1 of 4].

 It was not until September 29, 2023 that the court heard and granted a motion by plaintiff to augment his expert list to add two experts which had developed opinions regarding Olympus’ notice of problems with its scopes and the duties arising from that circumstance.   Neither of the experts added are medical doctors, and neither could be relied upon to offer medical causation testimony.  As of all of the critical dates here, plaintiff could not have proceeded to trial with Dr. Gazi as an expert in medical causation or in Olympus’ liability based on the use of Olympus scopes, because plaintiff and the witness had not cooperated in having Dr. Gazi’s deposition completed. 

The Hoffman Declaration in support of the Olympus motion explains in detail what the court has been made repeatedly aware of with respect to Dr. Gazi’s deposition.  Specifically, counsel for defendant’s began requesting the deposition of Dr. Gazi after Olympus’ motion for summary judgment was denied, and counsel for plaintiff refused to produce Dr. Gazi in person, so that on June 20, 2023, defendant Olympus filed an ex parte application to compel the deposition in person, which was granted.  [Hoffman Decl., paras. 35-37].  Plaintiff’s counsel represented that Dr. Gazi could only appear for a remote or in-person deposition in Dubai, as he had relocated there.  [Hoffman Decl., para. 37, Ex. QQ].  The court granted the motion, ordered the deposition to take place in Dubai, but the following day plaintiff’s counsel represented that Dr. Gazi was not in Dubai, but in Abu Dhabi.  [Hoffman Decl., para. 39, Ex. SS].  While defendants agreed to proceed with a deposition in Abu Dhabi, plaintiff then stated that Dr. Gazi would not appear in person in any location.  [Hoffman Decl., para. 40, Ex. TT]. 

This circumstance led to the filing of a second ex parte application, seeking compliance with the court’s previous order, at which time it was represented that Dr. Gazi would be in New York from the end of June to mid-July, and the court again ordered Dr. Gazi to appear for an in-person deposition.  [Hoffman Decl., pars. 41, 43, 44, Exs. UU, WW, XX].

Dr. Gazi appeared for a deposition on June 15, 2023, in Syracuse, New York.  [Hoffman Decl., para. 55].  However, the deposition was cut off after less than two hours of testimony time, under conditions created by plaintiff’s counsel and the witness which prevented the expert from being fully deposed, and defendants filed another motion to compel a further deposition of Dr. Gazi, which was granted, and monetary sanctions awarded against plaintiff. [Hoffman Decl., para. 55]. 

As represented in Olympus’ original reply papers, as of the filing of the reply papers on November 22, 2023, Dr. Gazi has still not submitted to a further deposition as ordered.  [Supp. Hoffman Decl., paras. 5, 7].

The matter accordingly now is in a posture where no medical causation expert is prepared to testify at trial, despite the case being almost six years old.  [Supp. Hoffman Decl., paras. 6, 7].  Without a medical causation expert, the plaintiff will not be able to prove medical malpractice.  In other words, without a medical causation expert, the plaintiff has no case.  As such, the plaintiff is not trial ready.  

While plaintiff has sought from this court orders permitting him to augment his expert designations and has been permitted leave to augment to add two experts who are not medical doctors and been ordered to immediately make those witnesses available for depositions, they were not scheduled to be produced until December 14, 2023 and December 18, 2023.  [Supp. Hoffman Decl., para. 5, Ex. 3]. 

Plaintiff’s second motion to augment, which included a request to designate a new expert medical doctor to replace Dr. Gazi, a Dr. Nicholas Karyotakis, was heard on November 17, 2023, but plaintiff’s counsel requested that the hearing be continued as the new expert Dr. Karyotakis was not responding to plaintiff’s counsel.  [Hoffman Decl., para. 6, Ex. 4, Transcript of Proceedings, 11/17/2023, Minute Order 11/17/2023]. 

It is clear that, by all objective criteria, the case is not now, and has not at the periods plaintiff’s counsel claims it was, ready for trial, for reasons which were at all times within the control of plaintiff and plaintiff’s counsel. 

Specifically, when Dr. Gazi was ordered to be deposed in person in this action, and to appear in Syracuse, New York, plaintiff’s counsel, upon being informed by the witness that the witness would be available for only two hours, needed to explain to the witness that he would be deposed for an entire day, and that he was required to make himself available.   Once the deposition was adjourned, it was within plaintiff’s counsel’s control to offer other times for the resumption of the deposition, as evidently offered by counsel for defendants, who had traveled to New York for the deposition.  

If the expert witness was on sabbatical of out of the country as the trial deadline approached, counsel should have been aware of this circumstance, and taken steps to see that the expert was available within the appropriate timeframe and was fully deposed prior to then.  In the alternative, plaintiff’s counsel should have timely taken the steps he now apparently recognizes would have been available to find a new expert with trial availability, who had been deposed and was ready to testify at the trial by the deadline.  

With respect to the new experts, which plaintiff evidently will rely on to provide the critical testimony on liability due to Olympus scopes, which testimony Dr. Gazi will be unable to provide due to his de-designation as an expert witness, plaintiff could have designated such “scope” experts earlier.  Plaintiff had over two years from when Olympus was first substituted into the action to designate “scope” experts.  Plaintiff successfully has argued for statute of limitations purposes that plaintiff suspected he was injured by the scopes as of the filing of this action over five years ago.  Therefore, plaintiff had plenty of time with reasonable diligence to have liability experts on the scopes ready for trial.  This result shows lack of reasonable diligence by plaintiff’s counsel. 

The court also has some concern that it does not appear to be fair or just to permit plaintiff under circumstances where a matter is awaiting long-cause evaluation, but is not trial ready, to use the extra time while applying for long-cause to develop and strengthen plaintiff’s case which should have been ready for trial when application was made.  In fact, it appears from the long-cause minute order that the matter will not be considered for a long-cause designation in the future until discovery is complete, that is, until it is clear to the long-cause department that the matter is trial ready.

This issue, in effect, whether the case was not in fact actually trial ready by the deadline, despite plaintiff’s protestations that it was, is critical, and must be determined by this court pursuant to the defendants’ motion to dismiss under the five-year rule.   

This conclusion is particularly true given that both sets of defendants in their replies point out that the issues presented in this case were addressed in the recent published decision in Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th240, filed on November 15, 2023, in which the court of appeal reiterated that need for the trial court to make a finding concerning trial readiness.  The original replies rely on the following language from Oswald:

“We conclude the trial court here acted well within its discretion in determining that the courtroom closure and trial continuance at issue did not make it illegally impossible or impractical for plaintiffs to commence trial in a timely fashion. Rather, plaintiffs’ failure to timely commence trial was due to a lack of reasonable diligence, i.e., they were never ready for trial during the relevant periods. (See Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 107 Cal.Rptr.3d 5 [tolling under dismissal statute (§§ 583.310, 583.340(c)) not required where court-declared moratoriums on civil trials did not prevent or interfere with prosecution of case as plaintiffs were never ready for trial at time of moratoriums].)

 

We will not accept plaintiffs’ repeated invitation to adopt the absurd rule that time to commence trial is tolled under section 583.340(c) whenever a courtroom is not available for trial without consideration of a plaintiff's readiness for trial.”

Oswald, at 252, italics in original.

“Nor are we persuaded by plaintiffs’ argument that they were not required to object to the trial court's re-setting of the trial to January 28, 2022 because their motion alerted the court to the deadline for trial and a later date would be acceptable “only if the five-year rule was waived.” Plaintiffs cannot foist onto the court their responsibility to timely bring their case to trial. That obligation lies solely on plaintiffs, who bore the responsibility to identify any problems concerning the scheduling of the trial and seek an order rescheduling the trial date to a date within the allotted five-and-one-half years. (Gaines, supra, 62 Cal.4th at p. 1104, 199 Cal.Rptr.3d 137, 365 P.3d 904, quoting Jordan, supra, 182 Cal.App.4th at p. 1422, 107 Cal.Rptr.3d 5.) Counsel did not ask for an earlier date on the motion to continue the trial date, never did so thereafter, and has made no showing that doing so would have been futile.  (De Santiago, supra, 155 Cal.App.4th at 374, 65 Cal.Rptr.3d 882 [finding plaintiff had a duty to take whatever “measures were available to attempt to accelerate the trial of the case before the expiration of the five-year period, including bringing a motion to advance the trial”].)

Oswald, at 253-254, italics in original.  

“Plaintiffs never announced they were ready for trial, likely because they never were close to being ready for trial. On appeal, plaintiffs do not address their readiness for trial and instead merely repeat they were automatically entitled to tolling when the court “re-set” trial for January 28 and they were not required to object to the setting of that date….

Unlike in Coe, plaintiffs here not only failed to demonstrate reasonable diligence in prosecuting their action but evidenced “active malingering” in prosecuting the action. In addition, and again unlike Coe, the trial court did not act on its own motion and in the absence of counsel in continuing the action beyond the deadline for commencement of trial. And the trial court did not fail to respond to applications for relief after the trial date was set as plaintiffs made no such applications.”

Oswald, at 254. 

As noted above, the issue to be addressed at this hearing is 

“the narrow issues of whether plaintiff can meet his burden pursuant to CCP section 583.340(c) of establishing that it is impossible, impractical, and/or futile to bring the case to trial within the five-year statutory period during the time the parties are engaging in preparing and amending their long-cause package, and the matter is under evaluation for submission to long-cause. The Court will expect further legal briefing and a further factual record limited to the issues of trial readiness, causality and the exercise of reasonable diligence in connection with the above issue, and in light of the recently filed published decision of Oswald v. Landmark Builders, Inc. (2023) __Cal.App.5th__, 2023 WL 7581095.”

[Minute Order 12/01/2023]. 

As noted above, the narrow issue to be considered based on the supplemental briefing is whether the plaintiff here can meet his burden pursuant to CCP section 583.340(c) of establishing that it is impossible, impractical, and/or futile to bring the case to trial within the five-year statutory period during the time the parties are engaging in preparing and amending their long-cause package, and the matter is under evaluation for submission to long-cause.

Again, as set forth above, the exception set forth in subdivision (c) requires a plaintiff to prove the following:

“a circumstance of impracticability…”;

“a causal connection between that circumstance and moving the case to trial…” and 

that plaintiff “exercised reasonable diligence in prosecuting the case.”  

Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336.  

As noted in Bruns, “[t]he plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340(c) exception.”  Bruns, at 731, citing Perez v. Grajales (2008) 169 Cal.App.4th 580, 590. 

“Because the purpose of the five-year statute for bringing a case to trial is to prevent avoidable delay for too long a period, the “critical factor” as to whether the impracticability exception applies to a given factual situation is whether the plaintiff has exercised “reasonable diligence” in prosecuting his or her case. (Hughes, supra, 5 Cal.App.4th at p. 67, 6 Cal.Rptr.2d 616; Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438, 41 Cal.Rptr.2d 362, 895 P.2d 469.) This duty of diligence applies “at all stages of the proceedings,” and the level of diligence required increases as the five-year deadline approaches. (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340, 242 Cal.Rptr. 538; Wilshire, supra, 228 Cal.App.3d at p. 1287, 279 Cal.Rptr. 488.) The exercise of reasonable diligence includes a duty to monitor the case in the trial court to ascertain whether any filing, scheduling or calendaring errors have occurred.” (Wilshire, supra, 228 Cal.App.3d at p. 1287, 279 Cal.Rptr. 488; see 6 Witkin, Cal. Procedure (1997) Proceedings Without Trial, § 379, pp. 781–782.)

As noted, the trial court did not make a finding whether Tamburina exercised reasonable diligence during all stages of the proceedings, with the twist that the level of diligence required increases as the five-year deadline approaches. We must remand for the trial court to make this finding.”

Tamburina, at 336, italics in the original. 

1.  Circumstance of Impracticability 

Plaintiff argues that counsel announced plaintiff’s trial readiness at two FSCs in July prior to the five-year deadline expiring.  Plaintiff does not point to any point in hearing transcripts to support this argument.  In fact, counsel’s supplemental declaration does not support this statement, as the declaration states that on July 13, 2023, “Plaintiff nor counsel announced a lack of readiness, no such lack of readiness was found.”  [Supp. Lindeman Decl., para. 23].   Failing to announce a lack of readiness is not the same as announcing readiness.  The declaration also states that, “Plaintiff announced he was trial ready in all communications with Defendants in the run up to the July trial.”  [Supp. Lindemann Decl., para. 24].  Announcing such readiness to defendants, in “communications” not submitted, also does not show that counsel announced trial readiness in court on the dates in question, as argued.  The declaration goes on to state that “Plaintiff announced trial readiness through counsel at both FSCs.”  [Lindemann Decl., para. 27].  No transcript is cited to support that statement.   In any case, the pertinent inquiry here is that when plaintiff announced trial readiness if the matter was in fact not objectively ready for trial at the time of the reference to long-cause.   

Plaintiff argues that plaintiff was in fact trial ready in that all of his experts, including medical expert Dr. Darvin Smith, were deposed, and prepared to testify. [Supp. Lindemann Decl., para. 27].  

This instance is the first time the court has seen an argument that Dr. Smith was prepared to testify on the topics upon which Dr. Gazi would have been previously testifying, such as scope liability and medical causation.   The opposition does not submit any documentation showing what topics that expert witness is expected to cover at trial or attach a copy of the deposition transcript referenced. 

Defendants in their opposition do submit deposition testimony from Dr. Smith, in which he states that he does not have opinions regarding medical causation, or, in fact, breach of a standard of care on the part of either set of defendants. 

With respect to the physician defendants, Dr. Smith testified:

“Q.  Thank you.

You have no opinions on the standard of care of the treating doctors in this case. And I mean compliance with the applicable standard of care for the treating doctors in this case including Doctors Kao and Kasher; is that correct? 

A.  Yes.

Q.  And you have no opinions as to whether or not any of the allegedly negligent acts of treating doctors, including Doctors Kao or Kasher, caused injury to Mr. Steger; is that correct? 

A. Yes.”

[Supp. Tomlinson Decl., Ex. E, Smith Depo. p. 91:25- 92:11]. 

With respect to Olympus, Dr. Smith testified:

“Q. But in this case, as I understand you so far, you do not intend to testify to a reasonable degree of medical probability that any Olympus scope was a vector of any infection Mr. Steger got?

A.Well, that's beyond my review today. And I don't have the background from the records that I have reviewed to say that, but I think others have.  So I would defer to their expertise.”

[Second Supp. Hoffman Decl., paras. 46-47, Ex. XXX, p. 68:23-69:5].

Plaintiff accordingly has not established by this argument that Dr. Smith’s involvement in the matter shows that plaintiff was objectively ready to proceed to trial, despite any declaration or statement in court on the part of counsel that he called ready for trial. 

The supplemental replies also submit transcripts from the July 13, 2023 hearing, in which counsel for plaintiff, both Mr. Lindemann and Mr. Borsuk, concede that plaintiff has discovery to pursue before he is ready for trial:

“THE COURT:…I DON'T KNOW, IS THERE STILL DISCOVERY OUTSTANDING? 

MR. HOFFMAN:· NOT FROM OUR PERSPECTIVE. IF – 

MR. LINDEMANN:· YES.· THERE IS – 

MR. HOFFMAN: -- THE FIVE-YEAR RULE – 

MR. LINDEMANN: -- YOUR HONOR. 

MR. HOFFMAN:-- IS TOLLED, THEN I DON'T BELIEVE THAT DISCOVERY CAN CONTINUE.

 

THE COURT:  OKAY.  LET ME HEAR, IS THERE STILL DISCOVERY OUTSTANDING BESIDES THE ONE DEPOSITION THAT'S BEEN PLANNED? 

MR. BORSUK: YES, YOUR HONOR.  WE'VE BEEN MEETING AND CONFERRING WITH COUNSEL ABOUT EXPERTS FOR SHORT DEPOSITIONS, ONE HOUR EACH.  SO THAT IS STILL IN THE AIR. MR. VOGEL, MS. TOMLINSON'S CO-COUNSEL, HAS SUGGESTED WE SPEAK FOLLOWING TODAY. SO THAT IS SOMETHING THAT IS STILL KIND OF IN THE AIR. BUT WE CERTAINLY DON'T WANT THAT TO INTERFERE WITH YOUR HONOR AND HOW YOUR HONOR WANTS TO PROCEED, AS YOU JUST OUTLINED. 

THE COURT: ALL RIGHT.· THE COURT'S – 

MR. LINDEMANN: YOUR HONOR, I WAS JUST GOING TO ADD TO MR. BORSUK'S COMMENT, THIS IS BLAKE LINDEMANN. WE ALSO HAVE A PERSON MOST KNOWLEDGEABLE DEPOSITION OF OLYMPUS THAT HASN'T BEEN COMPLETED.· THEY HAVEN'T MADE A WITNESS AVAILABLE.  WE ALSO HAVE -- THE COURT ORDERED DR. KASHER AND DR. KAO TO SIT FOR DEPOSITIONS. WE HAVEN'T HAD THOSE -- A DATE OFFERED FOR THOSE. SO THERE ARE A FEW THINGS THAT HAVE NOT BEEN COMPLETED, BUT WE INTEND TO MOVE THIS FORWARD, GET THE DOCUMENTS WE THINK HAVE BEEN WITHHELD FOR US FOR MANY, MANY MONTHS AND MOVE THIS CASE TO COMPLETION.

[Supp. Tomlinson Decl., Ex. R, Transcript of Proceedings, July 13, 3023 Hearing, p.10:22-11:28]. 

This exchange suggests that counsel recognized at the time that plaintiff was not in fact ready for trial, despite plaintiff’s counsel now stating that counsel believed plaintiff had declared trial readiness. There were still depositions to be conducted and documents to be produced.  

The Olympus supplemental reply also argues that far from announcing trial readiness at the July 13, 2023 hearing, plaintiff asked the court to reopen fact discovery and allowed the court to take the trial date off calendar altogether, despite Olympus’ continued objections.  [Hoffman Decl., Ex. JJJ, pp. 11-14].  Defendant points out that the situation in Chin was that plaintiff had been reasonably diligent, had obtained a trial date well before the five-year period, and was merely waiting for a courtroom to open up.  Chin, at 1476.   The circumstances in Chin are in stark contrast to this case, where the problem is not that there was no courtroom available, but that plaintiff began last-minute efforts to force the matter to long-cause when plaintiff was not yet ready for trial. It does not appear that Chin stands for the proposition that because a litigant claims to have been trial ready, that representation cannot be questioned by reference to objectively ascertainable facts.    

Plaintiff also argues that Dr. Gazi posed an excessive and unreasonable difficulty.   The court notes that plaintiff does not submit any further evidence on the issue or address the court’s concern that plaintiff had been aware of the difficulty for a significant period of time and cannot be shown to have diligently and appropriately addressed any such difficulty. 

In any case, although the difficulty and expense evidently necessitated by Dr. Gazi’s evident failure to now cooperate is unfortunate, plaintiff makes no effort to show that the difficulties were not reasonably anticipated, subject to efforts showing reasonable diligence, or in fact caused the case to not go forward before the deadline expired due to some unavailability of a courtroom while a long-cause issue was being resolved.  The physician defendants also point out that to the extent plaintiff relies on Dr. Gazi as a circumstance of impracticability or impossibility, plaintiff on the one hand argues that Dr. Gazi was available for the trial date of July 21, 2023, and remains a designated expert, while at the same time arguing that a trial continuance request was based on Dr. Gazi’s stated level of unavailability, and not a lack of readiness.  [See Supp. Lindemann Decl., paras. 6, 7].   

With respect to the issue of trial readiness, Olympus argues that the long-cause referral was not a circumstance of genuine impracticability, as on July 13, 2023, the parties were still in the middle of trial preparation.  The Second Supplemental Hoffman Declaration describes in detail that as of that date, the parties still needed to complete their trial documents, which remain unfinished, finish briefing their fact motions in limine, which remain unfinished, and finish taking expert depositions, which also remain unfinished, and which circumstance has prevented defendants from preparing expert motions in limine.  [Second Supp. Hoffman Decl., paras. 49-66].  The parties did not have their long-cause submission ready to submit to Department 1 until July 24, 2023, several days after the five-year deadline had expired, which defendant indicates was drafted by Olympus’ counsel with no initiative by plaintiff in the process.  [Second Supp. Hoffman Decl., para. 56].  As noted above, Department 1 then reviewed the case, ruled that the case was not trial ready, that discovery had not been completed, and that the exhibit list was incomplete and improper, among numerous issues. [Second Supp. Hoffman Decl., para. 57, Hoffman Decl., para. 56, Ex. QQ]. These appear to be normal incidents of trial preparation which do not extend the five-year period. This posture is not a situation where plaintiff is trial ready and is awaiting assignment to an open long-cause court.   Defendants point out that the evidence supports a conclusion that plaintiff made a tactical choice to force the case to long cause with less than ten days remaining before the five-year deadline expired, which was not a matter over which plaintiff had no control.  [Second Supp. Hoffman Decl., paras. 44-45]. 

2. Causal Connection 

With respect to the second factor, a causal connection between the long-cause referral and plaintiff’s failure to satisfy the five-year requirement, the court has previously noted that the court of appeal in Oswald emphasized its rejection of the “absurd rule that time to commence trial is tolled under section 583.340(c) whenever a courtroom is not available for trial without consideration of plaintiff’s readiness for trial.” Oswald, at 252, italics in original.   

Defendants point out that if plaintiff’s case was not ready for trial as of July 13, 2023, or July 21, 2022, then the long-cause referral had no causal effect, since the circumstances did not prevent or interfere with plaintiff prosecuting his case.  See Jordan, supra, at 1421; Gaines, supra, at 1101.   It is clear that plaintiff was not prepared for trial by the deadline.  Defendants point out that as of the five-year deadline, plaintiff had not prepared a long-cause package, had no expert testimony on medical causation, and the two liability experts which had been deposed both confirmed they were unprepared to give their opinions, as they were awaiting more information from counsel.  [Second Supp. Hoffman Decl., paras. 36-37, 46-48, 51-66].  Plaintiff had also not completed his exhibit list, prepared his exhibit binders, or completed jury instructions and briefing of motions in limine. [Id]. 

Defendants also point out that plaintiff then confirmed he had not been ready for trial as of July 21, 2023 by requesting additional fact discovery after the deadline had expired, requesting to augment his expert witness designations with four new witnesses, and then admitting as of October 10, 2023 that his case still would not be ready for trial until November at the earliest.  [Second Hoffman Decl., paras. 58-60, 63-64, Exs. ZZZ, AAAA]. 

Specifically, defendants submit plaintiff’s Motion for an Order to Augment and Substitute Experts, served by plaintiff on October 10, 2023, in which plaintiff proposes a schedule for deposing plaintiff’s new experts, stating, “Thus, the remaining experts can be promptly deposed, and the case can be ready for trial in November.” [Second Hoffman Decl., Ex. AAAA, p. 5:24-25].

Defendants persuasively argue that because the case was not trial ready when it was sent to long cause, that period had no causal effect on plaintiff’s violation of the five-year rule and had no causal effect on the unavailability of a long cause courtroom.  

3.  Reasonable Diligence 

With respect to the third factor, reasonable diligence, plaintiff argues that this case is distinguishable from the Oswald case, where the argument was that a continuance was granted on plaintiff’s request, for good cause shown, but in this case, the court did not grant a continuance based on courtroom unavailability, but based on its own order that the statutory deadline was tolled while the long-cause determination was pending.  

Defendants again argue that unlike the situation in Oswald, plaintiff was not prevented from going to trial simply because there was no courtroom available but had engaged in conduct creating obstacles to get to trial, including the last-minute insistence that the case was a long-cause candidate.  The physician defendants emphasize again that submitting an application for long-cause is a normal procedure in Los Angeles and falls within the normal course of litigation, so that an attorney such as plaintiff’s attorney who is familiar with this procedure and has practiced and tried cases in the Los Angeles court system for many years would know the proper process, including the amount of time it would take to properly submit an application for long-cause.  

Defendant Olympus argues that diligence cannot be shown here, pointing out that in Oswald, the court of appeal found that plaintiffs had failed to show diligence in circumstances where the court of appeal opinion noted that by the time plaintiffs filed a final motion to stay or continue the trial, plaintiffs had not completed depositions, plaintiffs’ expert witnesses had not been deposed, and no new dates for deposition were then pending, and that by the time the motion to dismiss was heard, the trial court had noted, “last minute discovery under a compressed schedule that should have been done months if not years ago was being attempted…”  Oswald, at 250. 

  

Defendant argues that on top of such conduct, in this case, plaintiff delayed the hearing on Olympus’s motion for summary judgment six times, pushing the trial date from April of 2022 to July 18, 2023, and obtained continuances to go to Japan to depose Japanese witnesses, which was never done.  [Second Supp. Hoffman Decl., paras. 21-23].

Defendant also argues that plaintiff knew since 2019, when Dr. Gazi first submitted his expert declaration in this case, that Dr. Gazi would need to be deposed, and plaintiff should have with reasonable diligence had his expert line-up in place well before the July 2023, but still does not have it set to this date.  

Olympus also argues that plaintiff failed to exhibit reasonable diligence with respect to this matter when plaintiff made inconsistent representations regarding the whereabouts of Dr. Gazi, forced Olympus to obtain four separate court orders to compel Dr. Gazi’s deposition, and ultimately obstructed and prematurely terminated the deposition, resulting in significant monetary sanctions.  [Hoffman Decl., para. 59, Ex. OOO].  Olympus argues that plaintiff’s sanctioned misconduct on July 15, 2023, in the last week before the five-year deadline expired, cannot support a finding of reasonable diligence.  

With respect to the long cause determination, again, defendants rely on plaintiff’s actions in connection with changing his position concerning the length of the trial just before the deadline was to expire, as discussed in detail in the previous ruling, above, and argue that plaintiff was not diligent in failing to begin the long cause certification process with sufficient time left in the statutory period.  

Defendants also argue that plaintiff failed to demonstrate diligence in light of plaintiff’s acquiescence in the trial court taking the July 2023 trial date off calendar, and continuing the date beyond the five-year deadline, particularly when Olympus had made repeated representations to plaintiff that Olympus would file a motion for mandatory dismissal, and expressed the position that any orders tolling the five year period during the long-cause referral were incorrect in a situation where the case was not ready for trial.   Specifically, as set forth above, on July 13, 2023, counsel for Olympus expressly argued that, despite the trial court’s understanding of the tolling provision as applied to long-cause referral, such an understanding was limited to cases where plaintiff was ready for trial: 

“MR. HOFFMAN: YOUR HONOR, I THINK THE MAJOR DIFFERENCE HERE IS THAT PLAINTIFF'S COUNSEL ARE ASKING THE COURT TO EXTEND FACT DISCOVERY BEYOND -- SO THIS CASE IS -- THEY'RE TELLING THE COURT THAT THE COURT'S NOT READY FOR TRIAL. THEY WANT MORE FACT DISCOVERY. SO THEY'RE NOT READY FOR IT TO BE SENT TO TRIAL RIGHT NOW.”

[Tomlinson Decl., Ex ZZ, Transcript of Proceedings, July 13, 2023, pp.16:26 through 17:17]. 

Similarly, at a hearing on June 26, 2023, Olympus stated:

“MR. HOFFMAN:… I CAN CONFIRM THAT, YOU KNOW, IF YOUR HONOR EXTENDS THIS CASE BEYOND THE FIVE-YEAR RULE- AND IT IS PLAINTIFF’S COUNSEL WHO’S REQUESTING IT TO BE EXTENDED—BEYOND—WE OBVIOUSLY UNDERSTAND FROM THE CASE LAW THAT IT’S PLAINTIFF’S COUNSEL, NOT THE TRIAL COURT THAT HAS THE RESPONSIBILITY TO BRING THIS CASE TO TRIAL WITHIN THE FIVE YEAR DEADLINE. SO WE WOULD INTEND TO FILE A MOTION FOR MANDATORY DISMISSAL, AS WE STATED IN OUR PAPERS. AND ONCE THAT’S DENIED, WE WOULD TAKE UP A WRIT… 

THE COURT: … “SO YOU’RE ON NOTICE, MR. LINDEMANN.· I THINK THE DATE’S JULY 22ND

[Second Supp. Hoffman Decl, para. 33, Transcript of Proceedings, June 26, 2023, Ex. UUU, pp. 26:5-27:9].  

At a hearing on June 29, 2023, Olympus again stated:

“MR. HOFFMAN: …AS I SAID AT THE LAST HEARING ON MONDAY, IF THE TRIAL DATE IS EXTENDED BEYOND THE FIVE-YEAR DEADLINE, WE DO INTEND TO FILE A MOTION FOR MANDATORY DISMISSAL, AND TAKE UP A WRIT IF NECESSARY. AS I REPRESENTED TO YOUR HONOR.” 

[Second Supp. Hoffman Decl., paras. 34, 35, Hoffman Decl., Ex. XX, Transcript of Proceedings, June 29, 2023 Hearing, p. 12:8-12].

“Plaintiffs cannot foist onto the court their responsibility to timely bring their case to trial. That obligation lies solely on plaintiffs, who bore the responsibility to identify any problems concerning the scheduling of the trial and seek an order rescheduling the trial date to a date within the allotted five-and-one-half years.”

Oswald, at 253, italics in original, citing Gaines, at 1104.

The issue remains that given the state of the law, as now fully briefed by the parties, that the court made previous orders concerning the deadline during the referral to long-cause without making the requisite findings of trial readiness to support tolling under subdivision (c), based on the assumption that a case which is ready for trial.  However, the court referred matter to long cause and granted to tolling due to the unavailability of a courtroom, but without the required concurrent finding of trial readiness.  The essential contingency, that the case was ready for trial, based on the diligence of plaintiff in having it prepared for trial, does not exist here.  In cases where the matter is ready for trial, the only obstacle to bringing the case to trial would be the unavailability of a courtroom.  That situation is not the case here, where the case could not be brought to trial even if a courtroom, long-cause or otherwise, were available.  It now appears that there was no tolling period sufficiently established by plaintiff in connection with the period of referral to long cause, because of trial readiness the matter was not brought to trial within the mandatory five-year statutory period.  The motions to dismiss are properly granted.      

The court notes that plaintiff in opposition also argues that two periods of tolling should be recognized by the court related to a lengthy illness of plaintiff during which he underwent procedures and was unavailable for trial from March 9, 2020 to September of 2021, and related to an injury sustained by plaintiff’s counsel on February 11, 2022, a ruptured right Achilles tendon, that made him unavailable through September of 2022. 

As argued in the supplemental replies, these tolling periods were not included in plaintiff’s original opposition, giving rise to issues of proper notice, and clearly fall outside the scope of the issues for which the court continued the hearing and the court’s previous order, as those periods have nothing to do with any potential tolling of the five-year deadline attributable to the long-cause procedures in this matter.   The court accordingly agrees with defendants that this argument will not be considered by the court.   

In addition, even if the court were to consider the argument, defendants in reply have submitted evidence showing that the case was in fact pursued and prosecuted by plaintiff during those periods, so that neither subdivision (b), requiring a total stay, nor subdivision (c), requiring impossibility, impracticality or futility, as well as causation and reasonable diligence, have been shown.  

Specifically, the supplemental reply filed by Olympus indicates that a review of the docket in this matter indicates that plaintiff was free to prosecute his case—and did continue prosecuting his case—throughout the periods of March 9, 2020 to September 2021, and February 2022 through September 2022.  During the first period, plaintiff actively prosecuted his appeal, filed a Doe amendment, contested a demurrer and multiple motions for sanctions, and responded to discovery requests. [Second Supp. Hoffman Decl, para. 68; Hoffman Decl., Ex. B.]  In addition, plaintiff appeared for the final volume of his deposition during the period of his own purported unavailability, on May 24, 2021. [Second Hoffman Decl., para. 68]. 

As for the second alleged period, when plaintiff’s counsel claims illness or injury, plaintiff’s counsel continued to prosecute the case, notwithstanding his Achilles injury, including filing an ex parte application seeking second depositions of Dr. Kao and Dr. Kasher, opposing discovery motions, and taking or attending numerous depositions.  [Second Supp. Hoffman Decl. para. 69].  

Accordingly, neither of these health ailments provides a viable tolling period because plaintiff has failed to meet his burden of showing that “but for the illness” the case would have proceeded to trial. See Tamburina, supra, at 330; See also Gaines, supra, at 1102 (“generally, counsel’s routine illness is treated in the same manner as the usual and ordinary proceedings attendant to moving the case to trial,” summarizing Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 472.)  

The court accordingly finds that plaintiff has failed to meet his burden of establishing that these periods of plaintiff’s counsel or plaintiff’s unavailability qualify to extend the five-year period under CCP section 583.340. 

In sum, overall, this case presents a situation which is distinct from the usual circumstances when a trial-ready case is ordered subject to subdivision (c) tolling during the time period when a long cause court is unavailable.  In such a hypothetical case, the case actually would be ready for trial.  Hence, the hypothetical delay actually is attributable to courtroom unavailability.  Here, in contrast, the additional delay is attributable to the fact that plaintiff was not, and is not actually ready now, to take the case to trial.  Also, plaintiff has failed to establish that plaintiff has been reasonably diligent in ensuring that the case was, and is now, ready for trial by the recognized five-year deadline, i.e., July 21, 2023. 

The motions to dismiss are granted.  

Motion to Augment 

RULING:

Plaintiff’s Motion to Partially Reconsider Minute Order Dated September 15, 2023 is DENIED.  Procedurally, the notice of motion improperly seeks an order reconsidering “in part” a previous court minute order which includes numerous rulings, without specifying to which part it is directed.  In addition, the declaration in support of the motion fails to identify to what judge the previous application was made, what application was made, and fails to reference any new or different facts, circumstances or law which are claimed to be shown, as required under CCP section 1008(e).  

Even if the Court were to consider the motion on its merits, it would be denied.  The motion is not based on any new or different facts, circumstances, or law which were not in existence at the time of the previous hearing, and plaintiff has failed to offer any explanation why such facts, circumstances, or law could not have been or were not raised at in connection with the previous motions.

Even if the Court were to reconsider the previous rulings, the rulings on the motions would not change.

Defendant Olympus America Inc.’s Motion to Dismiss Action for Failure to Bring the Matter to Trial is GRANTED. 

The Court finds that this action was not brought to trial within the statutorily mandated timeframe and is subject to mandatory dismissal under CCP section 583.360. 

There is no dispute that the Complaint in this action was filed on January 22, 2018.  Five years and six months from this date was July 22, 2023, a Saturday, a date by which trial was not commenced. 

The Court further finds that plaintiff has failed to meet his burden of establishing any period of time which is subject to exclusion under CCP § 583.340.  As discussed in detail above, plaintiff has failed to establish that at any time conditions existed such that the jurisdiction of the court to try the action was suspended, the prosecution of the action was stayed or enjoined, or bringing the action to trial was impossible, impracticable, or futile.

Specifically, the Court finds that plaintiff has failed to establish that the action was stayed or subject to exclusion pursuant to CCP section 583.340 (b) or (c) during the time period when plaintiff appealed the court’s order granting summary judgment to defendant Providence St. Joseph, as no stay was imposed by either court, and there was no total stay of the matter, as plaintiff actively prosecuted the case during the period, and plaintiff has failed to establish impossibility, impracticality or futility.  

The Court finds that plaintiff has failed to establish that the period between when the complaint was filed and when defendant Olympus was substituted as the true name of Doe 1, also characterized by plaintiff as the time before defendant Olympus was joined, consists of excludable time under CCP section 583.340 (c).  The action is held to commence against defendants named by fictitious names for purposes of the five-year calculation at the time the original complaint is filed. Gray v. Firthe (1987) 194 Cal.App. 3d 202, 209 (“As to a defendant either expressly named in the original complaint or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint.”).   

The Court finds that plaintiff has failed to establish that the time period during which this case was being judicially reassigned from Department 1, the personal injury hub, to this Department D consists of excludable time.  The Court finds that this reassignment has not been established as a circumstance of impracticability but was an ordinary incident of proceeding.  The Court further finds that plaintiff has failed to establish under the circumstances that there was any causal effect of this delay on the failure to bring the case to trial within the five-year period, as the delay was remote in time from the running of the five-year deadline, occurring within six months of the filing of the action, and did not interfere with plaintiff prosecuting his case.  During the subject time- period, this case was not prevented from being prosecuted, but was actively pursued, and during the period of reassignment from July 11, 2018, through November 15, 2018, the parties exchanged at least 18 sets of discovery requests or responses, and at least nine discovery motions were filed, with several opposed.  [Tomlinson Decl., para. 5-9, Exs. B, C, D; Hoffman Decl., paras. 5, 6, Exs. B, C, D; Docket, entries between July 11, 2018 and November 15, 2018].  The Court finds that the period of reassignment, which is a standard delay, occurring at the beginning of the litigation, when the case was not prevented from being brought to trial, is not a period which is excluded from the five-year calculation. 

The Court also notes that plaintiff has argued in supplemental opposition that excludable time includes time during which plaintiff and plaintiff’s counsel suffered illness or injuries.  The Court does not consider this argument, as raised for the first time in supplemental opposition, on issues which could have been raised in the original opposition and were not, and on issues which were beyond the scope of the court’s order permitting the submission of supplemental opposition.  Defendants appropriately have objected on this ground.  

Even if the Court were to consider this argument, the Court would find that plaintiff has not established that the subject periods of illness and injury are subject to exclusion, as they are not circumstances of impracticability, but routine illnesses which would be treated in the same manner as the usual and ordinary proceedings attendant to moving a case to trial.  The Court further finds that plaintiff has failed to establish under the circumstances that there was any causal effect of this delay on the failure to bring the case to trial within the five-year period, as the delay was again remote in time from the running of the five-year deadline, occurring in 2020 through 2022, long before the five-year deadline expired, and did not interfere with plaintiff prosecuting his case.  During the subject time periods, plaintiff prosecuted his appeal, filed a Doe amendment, contested a demurrer and multiple motions for sanctions, responded to discovery requests, appeared for deposition, sought and attended depositions, and opposed discovery motions. [Second Supp. Hoffman Decl, para. 68; Hoffman Decl., Ex. B; Second Hoffman Decl., paras. 68, 69].  The Court would also find that this period of illness and injury is a standard delay, occurring well before the five-year deadline expired, and did not present a circumstance where the case was prevented from being brought to trial, so would not be a period which would be excluded from the five-year calculation. 

The Court finds that plaintiff has failed to establish that the time-period during which this case was referred for long-cause determination is subject to exclusion under CCP section 583.340(c).  To establish that time is subject to exclusion under this subdivision on the grounds that bringing the case to trial within the statutory period was impossible, impractical, and/or futile, plaintiff bears the burden of establishing a circumstance of genuine impracticability, causality, and that plaintiff exercised reasonable diligence in bringing the matter to trial within the statutory period. 

The Court finds that the analysis requires the trial court to evaluate whether at the time of the referral to long-cause on which plaintiff relies to trigger excludable time, the case was actually ready to go to trial, based on objective facts, apart from any representation on the part of plaintiff or plaintiff’s representatives that the case was ready to go to trial.  

The Court has analyzed the factors and facts, as discussed in detail above, and considered supplemental briefing by the parties on the issues, and finds that under the circumstances, plaintiff has not established a circumstance of impossibility, impracticability, or futility in bringing the action to trial.  

The case was not by virtue of its long-cause referral impossible or impracticable to bring to trial, because it was not trial ready, and remains not trial ready, so it was ineligible to begin trial in the long-cause court.  

The evidence here shows that as of July 13, 2023, both of plaintiff’s attorneys appearing at trial conceded that plaintiff had discovery to pursue before the matter was ready for trial.  [Supp. Tomlinson Decl., Ex. R, Transcript of Proceedings, July 13, 3023 Hearing, p.10:22-11:28].  As of that date, the parties still needed to complete their trial documents, which remain unfinished, finish briefing their fact motions in limine, which remain unfinished, and finish taking expert depositions, which also remain unfinished, and which circumstance has prevented defendants from preparing expert motions in limine.  [Second Supp. Hoffman Decl., paras. 49-66].  The parties did not have their long-cause submission ready to submit to Department 1 until July 24, 2023, several days after the five-year deadline had expired.  [Second Supp. Hoffman Decl., para. 56].  

Department 1 then reviewed the case to determine long-cause eligibility, ruled that the case was not trial ready, that discovery had not been completed, and that the exhibit list was incomplete and improper, among numerous issues. [Second Supp. Hoffman Decl., para. 57, Hoffman Decl., para. 56, Ex. QQ].  Department 1 expressly stated in its minute order:

“The Court has reviewed the parties’ long cause trial submission and finds the parties are not trial ready. As an initial matter, Defendant filed a motion to compel a further deposition on July 24, 2023, indicating the parties have not concluded pretrial discovery. To be trial ready for purposes of a long cause trial assignment, all discovery must be completed.”

[Tomlinson Decl. para. 51, Ex. BBB; Lindemann Decl., Ex. 10, p. 1 of 4].

In fact, throughout August and to date, long after the five-year deadline had expired, and the long-cause court had expressed its concern, plaintiff was serving additional fact discovery, and has filed further discovery motions.  [Hoffman Decl., para. 57, Ex. LLL; Docket, August 28, 2023].  

Moreover, it appears from the substantial evidence detailed above that plaintiff’s counsel’s last-minute decision to pursue a long-cause determination was a tactical choice to attempt to avoid the consequences of setting the trial after the five-year deadline had expired.  Plaintiff until days before the expiration of the deadline had represented that the case required a ten-day trial, and presented time estimates far exceeding previous representations evidently in response to information plaintiff’s counsel pursued and obtained regarding the potential availability of the case being placed in long-cause. [Hoffman Decl., Ex. GGG, Transcript of Proceedings, June 21, 2023, p. 8:16-21; Tomlinson Decl., para. 45, Ex. XX, p. 8:16-21; Tomlinson Decl., Ex.  WW, Transcript of Proceedings, July 11, 2023, p. 17:9-22, 24, 27; See also Hoffman Decl., Ex. HHH; Tomlinson Decl., Ex. YY, Minute Order 07/13/2023, p. 1 of 2; Tomlinson Decl., Ex ZZ, Transcript of Proceedings, July 13, 2023, pp.16:26 through 17:17]. 

There was no genuine impracticability here which prevented plaintiff from going to trial, but rather the plaintiff was prevented by his own lack of trial readiness. 

These facts also support the Court’s finding that plaintiff has failed to establish a causal connection between the long-cause referral and plaintiff’s failure to bring the case to trial within the five-year statutory period, as the cause of plaintiff’s failure to bring the case to trial by the deadline was not the unavailability of a long-cause courtroom, but rather plaintiff’s lack of trial readiness for trial even if such a courtroom had been or became available.  

The Court also finds that the facts in this matter support the Court’s finding that plaintiff has failed to establish reasonable diligence in bringing the action to trial by the deadline.  

In addition to the facts above, which the Court believes alone would support a finding of lack of diligence, the Court notes that plaintiff is currently in a position where he has no witness qualified, willing or available to testify on medical causation, and plaintiff’s counsel created circumstances pursuant to which plaintiff’s expert Dr. Gazi has not been fully deposed, despite defendant obtaining several court orders compelling the deposition, and finding plaintiff has engaged in misuse of the discovery process in this regard.  [Hoffman Decl., para. 59, Ex. OOO].  Plaintiff has known since 2019, when Dr. Gazi’s declaration was first submitted in opposition to a motion for summary judgment in this matter, that this deposition would be required, and with reasonable diligence should have assured that the deposition was timely taken. 

Specifically, when Dr. Gazi was ordered to be deposed in person in this action, and to appear in Syracuse, New York, plaintiff’s counsel, upon being informed by the witness that the witness would be available for only two hours, should have reasonably explained to the witness that he would be deposed for an entire day, and that he was required to make himself available.   Once the deposition was adjourned, it was within plaintiff’s counsel’s control to offer other times for the resumption of the deposition, as evidently offered by counsel for defendants, who had traveled to New York for the deposition.  

If the expert witness was on sabbatical or out of the country as the trial deadline approached, counsel should have been aware of this circumstance, and taken steps to see that the expert was available within the appropriate timeframe and was fully deposed prior to the Five-Year Rule deadline.  In the alternative, plaintiff’s counsel should have timely taken the steps he now apparently recognizes would have been available to find a new expert with trial availability, who would had been deposed and would have been ready to testify at the trial by the Five-Year Rule deadline.  

In addition, with respect to seeking a long-cause determination, plaintiff has not been diligent.  As argued by defendants, submitting an application for long-cause is a normal procedure in Los Angeles Superior Court and falls within the normal course of litigation, so that an attorney such as plaintiff’s attorney who is familiar with this procedure and has practiced and tried cases in the Los Angeles court system for many years reasonably should have been familiar with the process, including the amount of time it would take to properly submit an application for long-cause.   Plaintiff’s counsel has demonstrated a lack of diligence in failing to begin the long cause certification process with sufficient time left in the statutory period.  

Plaintiff has also failed to establish diligence in addressing the five-year deadline and any tolling or exclusion issues in light of the repeated representations to plaintiff that defendants intended to file motions for mandatory dismissal, and expressed the position that any orders tolling the five-year period during the long-cause referral were incorrect in a situation where the case was not objectively ready for trial.  [Tomlinson Decl., Ex ZZ, Transcript of Proceedings, July 13, 2023, pp.16:26 through 17:17; Second Supp. Hoffman Decl, para. 33, Transcript of Proceedings, June 26, 2023, Ex. UUU, pp. 26:5-27:9; Second Supp. Hoffman Decl., paras. 34, 35, Hoffman Decl., Ex. XX, Transcript of Proceedings, June 29, 2023 Hearing, p. 12:8-12].

The Court overall is of the view that where a long-cause referral is made with respect to a case that it not actually ready for trial, it would not be fair or just to permit plaintiff under circumstances where a matter is awaiting long-cause evaluation, but is not trial ready, to use the extra time while applying for long-cause to develop and strengthen plaintiff’s case.  Such a result would be fundamentally unfair when the case should have been ready for trial when the application is in process at a time when the five-year deadline has since expired.  

The motion is accordingly GRANTED.  Plaintiff’s Complaint for Damages as against the moving defendant Olympus America, Inc. is DISMISSED WITH PREJUDICE pursuant to CCP § 583.360 (a) as not brought to trial within the time prescribed by statute.  

Defendants John A. Kasher, M.D. and James Kao, M.D.’s Motion to Dismiss Action for Failure to Bring the Matter to Trial is GRANTED. 

The Court finds that this action was not brought to trial within the statutorily mandated timeframe and is subject to mandatory dismissal under CCP section 583.360(a). 

There is no dispute that the Complaint in this action was filed on January 22, 2018.  Five years and six months from this date was July 22, 2023, a Saturday, a date by which trial was not commenced. 

The Court further finds that plaintiff has failed to meet his burden of establishing any period of time which is subject to exclusion under CCP § 583.340.  As discussed in detail above, plaintiff has failed to establish that at any time conditions existed such that the jurisdiction of the court to try the action was suspended, the prosecution of the action was stayed or enjoined, or bringing the action to trial was impossible, impracticable, or futile.

Specifically, the Court finds that plaintiff has failed to establish that the action was stayed or subject to exclusion pursuant to CCP section 583.340 (b) or (c) during the time period when plaintiff appealed the court’s order granting summary judgment to defendant Providence St. Joseph, as no stay was imposed by either court, and there was no total stay of the matter, as plaintiff actively prosecuted the case during the period, and plaintiff has failed to establish impossibility, impracticality or futility.  

The Court finds that plaintiff has failed to establish that the time period during which this case was being judicially reassigned from Department 1, the personal injury hub, to this Department D consists of excludable time.  The Court finds that this reassignment has not been established as a circumstance of impracticability but was an ordinary incident of proceeding.  The Court further finds that plaintiff has failed to establish under the circumstances that there was any causal effect of this delay on the failure to bring the case to trial within the five-year period, as the delay was remote in time from the running of the five-year deadline, occurring within six months of the filing of the action, and did not interfere with plaintiff prosecuting his case.  During the subject time- period, this case was not prevented from being prosecuted, but was actively pursued, and during the period of reassignment from July 11, 2018, through November 15, 2018, the parties exchanged at least 18 sets of discovery requests or responses, and at least nine discovery motions were filed, with several opposed.  [Tomlinson Decl., para. 5-9, Exs. B, C, D; Hoffman Decl., paras. 5, 6, Exs. B, C, D; Docket, entries between July 11, 2018 and November 15, 2018].  The Court finds that the period of reassignment, which is a standard delay, occurring at the beginning of the litigation, when the case was not prevented from being brought to trial, is not a period which is excluded from the five-year calculation. 

The Court also notes that plaintiff has argued in supplemental opposition that excludable time includes time during which plaintiff and plaintiff’s counsel suffered illness or injuries.  The Court does not consider this argument, as raised for the first time in supplemental opposition, on issues which could have been raised in the original opposition and were not, and on issues which were beyond the scope of the court’s order permitting the submission of supplemental opposition.  Defendants appropriately have objected on this ground.  

Even if the Court were to consider this argument, the Court would find that plaintiff has not established that the subject periods of illness and injury are subject to exclusion, as they are not circumstances of impracticability, but routine illnesses which would be treated in the same manner as the usual and ordinary proceedings attendant to moving a case to trial.  The Court would further find that plaintiff has failed to establish under the circumstances that there was any causal effect of this delay on the failure to bring the case to trial within the five-year period, as the delay was again remote in time from the running of the five-year deadline, occurring in 2020 through 2022, long before the five-year deadline expired, and did not interfere with plaintiff prosecuting his case.  During the subject time periods, plaintiff prosecuted his appeal, filed a Doe amendment, contested a demurrer and multiple motions for sanctions, responded to discovery requests, appeared for deposition, sought and attended depositions, and opposed discovery motions. [Second Supp. Hoffman Decl, para. 68; Hoffman Decl., Ex. B; Second Hoffman Decl., paras. 68, 69].  The Court would also find that this period of illness and injury is a standard delay, occurring well before the five-year deadline expired, and did not present a circumstance where the case was prevented from being brought to trial, so would not be a period which would be excluded from the five-year calculation. 

The Court finds that plaintiff has failed to establish that the time-period during which this case was referred for long-cause determination is subject to exclusion under CCP section 583.340(c).  To establish that time is subject to exclusion under this subdivision on the grounds that bringing the case to trial within the statutory period was impossible, impractical, and/or futile, plaintiff bears the burden of establishing a circumstance of genuine impracticability, causality, and that plaintiff exercised reasonable diligence in bringing the matter to trial within the statutory period.  

The Court finds that the analysis requires the trial court to evaluate whether at the time of the referral to long-cause on which plaintiff relies to trigger excludable time, the case was actually ready to go to trial, based on objective facts, apart from any representation on the part of plaintiff or plaintiff’s representatives that the case was ready to go to trial.  

The Court has analyzed the factors and facts, as discussed in detail above, and considered supplemental briefing by the parties on the issues, and finds that under the circumstances, plaintiff has not established a circumstance of impossibility, impracticability, or futility in bringing the action to trial.  

The case was not by virtue of its long-cause referral impossible or impracticable to bring to trial, because it was not trial ready, and remains not trial ready, so it was ineligible to begin trial in the long-cause court.  

The evidence here shows that as of July 13, 2023, both of plaintiff’s attorneys appearing at trial conceded that plaintiff had discovery to pursue before the matter was ready for trial.  [Supp. Tomlinson Decl., Ex. R, Transcript of Proceedings, July 13, 3023 Hearing, p.10:22-11:28].  As of that date, the parties still needed to complete their trial documents, which remain unfinished, finish briefing their fact motions in limine, which remain unfinished, and finish taking expert depositions, which also remain unfinished, and which circumstance has prevented defendants from preparing expert motions in limine.  [Second Supp. Hoffman Decl., paras. 49-66].  The parties did not have their long-cause submission ready to submit to Department 1 until July 24, 2023, several days after the five-year deadline had expired.  [Second Supp. Hoffman Decl., para. 56].  

Department 1 then reviewed the case to determine long-cause eligibility, ruled that the case was not trial ready, that discovery had not been completed, and that the exhibit list was incomplete and improper, among numerous issues. [Second Supp. Hoffman Decl., para. 57, Hoffman Decl., para. 56, Ex. QQ].  Department 1 expressly stated in its minute order:

“The Court has reviewed the parties’ long cause trial submission and finds the parties are not trial ready. As an initial matter, Defendant filed a motion to compel a further deposition on July 24, 2023, indicating the parties have not concluded pretrial discovery. To be trial ready for purposes of a long cause trial assignment, all discovery must be completed.”

[Tomlinson Decl. para. 51, Ex. BBB; Lindemann Decl., Ex. 10, p. 1 of 4].

In fact, throughout August and to date, long after the five-year deadline had expired, and the long-cause court had expressed its concern, plaintiff was serving additional fact discovery, and has filed further discovery motions.  [Hoffman Decl., para. 57, Ex. LLL; Docket, August 28, 2023].  

Moreover, it appears from the substantial evidence detailed above that plaintiff’s counsel’s last-minute decision to pursue a long-cause determination was a tactical choice to attempt to avoid the consequences of setting the trial after the five-year deadline had expired.  Plaintiff until days before the expiration of the deadline had represented that the case required a ten-day trial, and presented time estimates far exceeding previous representations evidently in response to information plaintiff’s counsel pursued and obtained regarding the potential availability of the case being placed in long-cause. [Hoffman Decl., Ex. GGG, Transcript of Proceedings, June 21, 2023, p. 8:16-21; Tomlinson Decl., para. 45, Ex. XX, p. 8:16-21; Tomlinson Decl., Ex.  WW, Transcript of Proceedings, July 11, 2023, p. 17:9-22, 24, 27; See also Hoffman Decl., Ex. HHH; Tomlinson Decl., Ex. YY, Minute Order 07/13/2023, p. 1 of 2; Tomlinson Decl., Ex ZZ, Transcript of Proceedings, July 13, 2023, pp.16:26 through 17:17]. 

There was no genuine impracticability here which prevented plaintiff from going to trial, but rather the plaintiff was prevented by his own lack of trial readiness. 

These facts also support the Court’s finding that plaintiff has failed to establish a causal connection between the long-cause referral and plaintiff’s failure to bring the case to trial within the five-year statutory period, as the cause of plaintiff’s failure to bring the case to trial by the deadline was not the unavailability of a long-cause courtroom, but rather plaintiff’s lack of trial readiness for trial even if such a courtroom had been or became available.  

The Court also finds that the facts in this matter support the Court’s finding that plaintiff has failed to establish reasonable diligence in bringing the action to trial by the deadline.  

In addition to the facts above, which the Court believes alone would support a finding of lack of diligence, the Court notes that plaintiff is currently in a position where he has no witness qualified, willing or available to testify on medical causation, and plaintiff’s counsel created circumstances pursuant to which plaintiff’s expert Dr. Gazi has not been fully deposed, despite defendant obtaining several court orders compelling the deposition, and finding plaintiff has engaged in misuse of the discovery process in this regard.  [Hoffman Decl., para. 59, Ex. OOO].  Plaintiff has known since 2019, when Dr. Gazi’s declaration was first submitted in opposition to a motion for summary judgment in this matter, that this deposition would be required, and with reasonable diligence should have assured that the deposition was timely taken. 

Specifically, when Dr. Gazi was ordered to be deposed in person in this action, and to appear in Syracuse, New York, plaintiff’s counsel, upon being informed by the witness that the witness would be available for only two hours, should have reasonably explained to the witness that he would be deposed for an entire day, and that he was required to make himself available.   Once the deposition was adjourned, it was within plaintiff’s counsel’s control to offer other times for the resumption of the deposition, as evidently offered by counsel for defendants, who had traveled to New York for the deposition.  

If the expert witness was on sabbatical or out of the country as the trial deadline approached, counsel should have been aware of this circumstance, and taken steps to see that the expert was available within the appropriate timeframe and was fully deposed prior to the Five-Year Rule deadline.  In the alternative, plaintiff’s counsel should have timely taken the steps he now apparently recognizes would have been available to find a new expert with trial availability, who had been deposed would have been ready to testify at the trial by the Five-Year Rule deadline.  

In addition, with respect to seeking a long-cause determination, plaintiff has not been diligent.  As argued by defendants, submitting an application for long-cause is a normal procedure in Los Angeles Superior Court and falls within the normal course of litigation, so that an attorney such as plaintiff’s attorney who is familiar with this procedure and has practiced and tried cases in the Los Angeles court system for many years should have reasonably been familiar with the process, including the amount of time it would take to properly submit an application for long-cause.   Plaintiff’s counsel has demonstrated a lack of diligence in failing to begin the long cause certification process with sufficient time left in the statutory period.  

Plaintiff has also failed to establish diligence in addressing the five-year deadline and any tolling or exclusion issues in light of the repeated representations to plaintiff that defendants intended to file motions for mandatory dismissal, and expressed the position that any orders tolling the five-year period during the long-cause referral were incorrect in a situation where the case was not objectively ready for trial.  [Tomlinson Decl., Ex ZZ, Transcript of Proceedings, July 13, 2023, pp.16:26 through 17:17; Second Supp. Hoffman Decl, para. 33, Transcript of Proceedings, June 26, 2023, Ex. UUU, pp. 26:5-27:9; Second Supp. Hoffman Decl., paras. 34, 35, Hoffman Decl., Ex. XX, Transcript of Proceedings, June 29, 2023 Hearing, p. 12:8-12].

The Court overall is of the view that where a long-cause referral is made with respect to a case that it not actually ready for trial, it would not be fair or just to permit plaintiff under circumstances where a matter is awaiting long-cause evaluation, but is not trial ready, to use the extra time while applying for long cause to develop and strengthen plaintiff’s case. Such a result would be fundamentally unfair when the case should have been ready for trial when the application is in process at a time frame when the five-year deadline has since expired.  

The motion is accordingly GRANTED.  Plaintiff’s Complaint for Damages as against the moving defendants John A. Kasher, M.D., and James Kao, M.D. is DISMISSED WITH PREJUDICE pursuant to CCP § 583.360 (a) as not brought to trial within the time prescribed by statute.  

Plaintiff’s Motion for an Order to Augment and Substitute Experts, to De-Designate and Withdraw Dr. Tawhid Gazi is MOOT in light of the granting of the motions to dismiss. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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