Judge: Steven A. Ellis, Case: BC609475, Date: 2023-08-11 Tentative Ruling

Case Number: BC609475    Hearing Date: August 11, 2023    Dept: 29

TENTATIVE

The OSC is discharged.  After taking into account tolling under section 583.340 and the provisions of Emergency Rule 10(a), the five-year period set forth in section 583.310 has not yet run.

Background

This matter has a long and complicated history, and the Court will summarize only the most pertinent parts of that history here.

On February 5, 2016, Plaintiff Benjamin E. Vega (“Plaintiff”) filed the Complaint in this action against Defendant Erick Parra (“Defendant”) and Does 1 through 50.

On July 21, 2017, Defendant’s default was entered.

On May 24, 2018, the Court entered a default judgment against Defendant.

On February 3, 2020, Defendant filed a motion to vacate the default judgment.  Following an evidentiary hearing, the Court granted the motion and vacated the default judgment on August 4, 2020.

On June 10, 2021, Plaintiff filed proof that Defendant had been personally served with the summons and complaint on May 25, 2021.  Defendant filed his answer on July 14, 2021. 

On August 20, 2021, the Court scheduled the trial for December 29, 2021.  Following a series of continuances, trial was set for May 25, 2022, with a Final Status Conference set for May 10. 

Plaintiff failed to appear at the Final Status Conference on May 10, 2022.  The Court then dismissed the case with prejudice under Code of Civil Procedure section 583.310. 

Plaintiff moved to vacate the dismissal.  At a hearing on March 22, 2023, the Court granted the motion to vacate the dismissal and set an OSC re dismissal under section 583.310 on May 8, 2023. 

On May 8, the Court continued the OSC to May 24, 2023 and set a Trial Setting Conference on the same day.  On May 24, 2023, the Court discharged the OSC and continued the Trial Setting Conference to June 30, 2023.

On June 30, the Court set the trial for September 18, 2023 and also set an OSC re dismissal under section 583.310 for August 11, 2023.  Plaintiff was ordered to file a response by July 28, and Defendant was ordered to file any reply by August 4, 2023.

Plaintiff did not file a response by July 28.  On August 3, 2023, Plaintiff filed his response.  Defendant filed a reply earlier that same day, August 3, without having seen Plaintiff’s response.

Legal Standard

“An action shall be brought to trial within five years after the action is commenced against the defendant.”  (Code Civ. Proc., § 583.310.)  “In computing the time within which an action must be brought to trial pursuant to this article [sections 583.310 through 583.360], there shall be excluded the time during which any of the following conditions existed: … (c) Bringing the action to trial … was impossible, impracticable, or futile.”  (Code Civ. Proc., § 583.340.)

“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.”  (Cal. R. Ct., Appx. I, Emergency Rule 10, subd. (a).)

Preliminary Issue

The Court ordered Plaintiff to file his response to the OSC by July 28, 2023.  He did not do so.  Instead, he filed six days late, on August 3.  As a result, Defendant did not have an opportunity to review the response and prepare a reply to Plaintiff’s arguments.

Accordingly, if requested by Defendant, the Court is prepared to continue the hearing and give Defendant an opportunity to reply, in writing, to Plaintiff’s arguments.

Discussion

This OSC raises the question of whether this action is subject to mandatory dismissal under Code of Civil Procedure section 583.310 for delay in bringing the matter to trial.  The primary dispute between the parties relates to whether the five-year period of section 583.310 was tolled between May 14, 2018 (when the default judgment was entered) and August 4, 2020 (when the default judgment was vacated).

California courts have repeatedly stated that where, as here, a default judgment is entered and then later vacated, the five-year period of section 583.310 is tolled while the judgment is in effect.  During that period, the courts have reasoned, it is impossible to bring the case to trial.  (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438; Hughes v. Kimble (1992) 5 Cal.App.4th 59, 68 [“[I]t was plainly impossible for the plaintiff to proceed toward trial while the [default] judgment was in effect.  Such time thus clearly must be excluded from the computation of time remaining after vacation of the judgment to bring the case to trial.”]; 3 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2023), ¶ 11:257.)

Accordingly, the Court calculates the time as follows:

·         Last day to bring the action to trial, based only on the date of filing of complaint (February 5, 2016) plus five years and six months (section 583.310, as extended by Emergency Rule 10: August 5, 2021.

·         Period of tolling from entry of default judgment (May 14, 2018) to order vacating default judgment (August 4, 2020): 2 years, 82 days.

·         Last day to bring the action to trial, including period of tolling (August 5, 2021, plus 2 years and 82 days): October 26, 2023.

Based on this calculation, the OSC is discharged.

Conclusion

The OSC re dismissal under Code of Civil Procedure section 583.310 is discharged.

Plaintiff to give notice.