Judge Thomas D. Long, Case Number: 19STCP01694, Date: 2025-05-13 Tentative Ruling

On May 3, 2019, Plaintiff Jorge Mata filed a Petition for Writ of Mandate and Complaint for Damages.

On August 19, 2022, the Court denied the Petition for Writ of Mandate and ordered the case reassigned to an Independent Calendar Court for the remaining causes of action.

On April 10, 2025, Defendants Los Angeles Community College District, Dr. Francisco Rodriguez, Dr. Robert (Bob) Miller, and Dr. Alberto Roman filed a motion to dismiss pursuant to Code of Civil Procedure section 583.310 et seq.

Defendants’ Objection Nos. 1-54 to the Declaration of Daniel Kolodziej are sustained.

Plaintiff’s Objection Nos. 1-2 to the Supplemental Declaration of Michael A. Gregg are sustained.

The Court does not rule on Plaintiff’s late-filed objections to the original Declaration of Michael A. Gregg.

Defendants’ request for judicial notice is denied as unnecessary because those filed documents are already part of the case’s record.

An action must be brought to trial within five years after the action is commenced against the defendant. (Code Civ. Proc., § 583.310.) When calculating the five years, time is excluded during which (a) the jurisdiction of the court to try the action was suspended, (b) prosecution or trial of the action was stayed or enjoined, or (c) bringing the action to trial for any other reason was impossible, impracticable, or futile. (Code Civ. Proc., § 583.340.) If the time within which an action must be brought to trial is tolled or extended pursuant to statute and less than six months remains at the end of the period of tolling or extension, the action shall not be dismissed if it is brought to trial within six months after the end of the period of tolling or extension. (Code Civ. Proc., § 583.350.)

An action must be dismissed if it is not brought to trial within the required time. (Code Civ. Proc., § 583.360, subd. (a).) The dismissal is mandatory, except as expressly provided by statute. (Code Civ. Proc., § 583.360, subd. (b).)

Plaintiff filed this action on May 3, 2019. Accordingly, the original deadline to bring this action to trial was May 3, 2024.

During the pendency of this action, the Court adopted 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.” (California Rules of Court, appen. I, emergency rule 10(a).) The additional six months under Emergency Rule 10(a) extends the deadline to November 3, 2024.

Defendants agree with this calculation, but they contend that there are no additional grounds for tolling beyond November 3, 2024. (Motion at pp. 9-10.)

Defendants argue that the five-year rule was not tolled under section 583.340, subdivision (a) because the jurisdiction of the Court was not suspended. (Motion at p. 10.)

Plaintiff seemingly agrees, arguing only about the other two subsections. (See Opposition at pp. 4-5.)

Defendants argue that the five-year rule was not tolled under section 583.340, subdivision (b) because the action was not completely stayed. (Motion at p. 11.)

Defendants primarily rely on Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717 (Bruns). There, the Supreme Court acknowledged that “in isolation, section 583.340(b)’s language is ambiguous” because “[a] stay of ‘prosecution’ under subdivision (b) reasonably could mean either a stay of any individual or incremental step in an action or a stay of all the proceedings in an action.” (Id. at p. 726.) The court read subdivision (b) together with subdivision (c) in order to “resolv[e] whether only a complete stay of all the proceedings operates to toll the running of the five-year period by which a case must be brought to trial, or whether partial stays of proceedings are sufficient.” (Ibid.) The court determined that subdivision (b) “contemplates a bright-line, nondiscretionary rule that excludes from the time in which a plaintiff must bring a case to trial only that time during which all the proceedings in an action are stayed.” (Ibid.) The court noted that subdivision (c) gives the trial court discretion to exclude additional periods, including periods when partial stays were in place that might make it “impossible, impracticable, or futile” to bring the action to trial. (Ibid.) The court “conclude[d] subdivision (b) of section 583.340 governs only complete stays that are ‘used to stop the prosecution of the action altogether.’” (Id. at p. 730.)

In this action, the Court stayed Plaintiff’s second, third, and fourth causes of action on August 9, 2019 “pending resolution of cause of action 1 in this department.” The parties then continued to litigate this action as to the first cause of action for writ of mandate. (See Motion, Gregg Decl. ¶ 10.)

Because there was no stay that stopped prosecution of the action altogether, the Court concludes that Plaintiff is not entitled to tolling under subdivision (b).

Defendants argue that the five-year rule was not tolled under section 583.340, subdivision (c) because bringing the case to trial was not impossible, impracticable, or futile. (Motion at p. 12.)

The plaintiff bears the burden of proving the circumstances of impossibility, impracticability, or futility, and the trial court has discretion to determine whether that exception applies. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100.) The inability to bring the case to trial must be due to factors not reasonably within the control of the plaintiff. (Id. at p. 1103.) “‘“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.”’ [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.” (Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532 (Baccus), emphasis omitted.) “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.” (Ibid.)

On August 9, 2019, the Court stayed Plaintiff’s second, third, and fourth causes of action “pending resolution of cause of action 1 in this department. At conclusion of hearing on writ hearing (cause of action 1), matter will be transferred for reassignment for resolution of remaining causes of action in an independent calendar courtroom.” On August 19, 2022, the Court issued its ruling on the Petition for Writ of Mandate and transferred the matter for reassignment for the remaining causes of action.

Defendants argue that this partial stay was within Plaintiff’s control and “was a direct result of Plaintiff’s strategic decision to combine claims for breach of contract and retaliation with a Petition for Writ of Mandate claim, despite not being required to do so under California law.” (Motion at p. 13; see id. at pp. 12-14.)

Defendants cite Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313 (Tanguilig) to demonstrate why the stay of the non-mandamus causes of action was reasonably within the control of Plaintiff. In Tanguilig, part of Tanguilig’s argued tolling period was the time when an arbitration order and stay was in effect for a co-plaintiff, but Tanguilig’s own claims were not stayed. (See id. at pp. 316-317, 325.) The court determined that nothing in that arbitration order prevented Tanguilig from taking her own claims to trial. (Id. at pp. 327-328.) “The fact is Tanguilig chose, apparently as a 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.” (Id. at p. 329.) Here, Plaintiff’s pleading that included non-mandamus claims entangled those claims during the proceedings on the Petition for Writ of Mandamus. The “procedural complexities and delays” here were also “not only predictable, but more importantly, invited.” (Ibid.)

Defendants argue that “Plaintiff could have objected to the stay of Plaintiff’s second, third, and fourth causes of action, but chose not to,” “never sought to sever his Writ of Mandate claim from his breach of contract and retaliation claims,” “never sought to lift the stay as to his second, third, and fourth causes of action,” and “never filed a motion to specially set the matter for trial.” (Motion at p. 15; see Reply at p. 10.)

“The diligent plaintiff has no need for a tolling period. An available remedy is at hand to correct calendaring or other errors made by the court or its clerk in the scheduling of a case. Upon timely discovery of the problem, a motion to specially set may be made and the court is bound to grant it.” (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1289 (Wilshire Bundy).) Although the non-mandamus causes of action were stayed, Plaintiff took no action to sever those claims to timely bring them to trial. (See ibid. [“Moreover, if the improper removal from the civil active list justified a tolling regardless of the plaintiff’s reasonable diligence in discovering and correcting such error, the negligent or dilatory plaintiff would be rewarded at the expense of the system and the rule requiring a plaintiff to diligently monitor the case would be undermined.”].)

Moreover, there must be a causal connection between the “impossible, impracticable, or futile” circumstances and the failure to satisfy the five-year requirement. (Wilshire Bundy, supra, 228 Cal.App.3d at p. 1289.) When the stay was lifted with the August 19, 2022 ruling on the Petition for Writ of Mandate and the case was reassigned to this trial court, more than two years remained before the November 3, 2024 deadline.

The Court and the parties conferred about the impending five-year deadline at the August 11, 2023 Case Management Conference. (Motion, Gregg Decl., Ex. V at pp. 8-13.) The Court specifically suggested that it could specially set the trial date if a party brought a noticed motion, or the parties could stipulate to a specific extension of the five-year rule. (Id. at pp. 10, 12.) At the trailed Case Management Conference on August 18, 2023, Defendants’ counsel was not able to stipulate about Plaintiff’s interpretation of the five-year rule, and he requested a trial date before November 2024. (Motion, Gregg Decl., Ex. W at pp. 6, 10.) The Court stated that it would not dismiss anyone without a motion to dismiss. (Ibid.) The Court confirmed the parties’ positions: “So Plaintiff and the Court, obviously, are proceeding at their own peril if the calculus of the tolling of the statute of limitations has not been properly assessed. And you [Defendants] have warned us that you may well bring a motion to dismiss as and when you deem appropriate to do so. So I think that’s crystal clear and I appreciate that.” (Id. at p. 10.) Before setting a trial date in March 2025, the Court warned Plaintiff: “I would just warn the plaintiff. You better be sure, you better be right on the five-year rule issue. You proceed at your own peril. Neither the defendant nor the Court gives you any warranty or representations, whatever, that you’re right. I, personally, think you’re right, but, you know, that’s subject to change if someone proves otherwise.” (Id. at pp. 10-11.)

There is a” long-settled principle that it is a plaintiff’s duty, rather than the trial court’s, to keep track of critical dates.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 434.) “This rule is well founded: the burden of keeping track of the relevant dates should properly fall on plaintiffs, because it is they who have the interest, and the statutory duty under section 583.310, to timely prosecute their cases.” (Ibid.) Plaintiff cannot now blame his “reliance on the Court’s guidance and availability” and “anticipation of the substantial additional discovery still needed from Defendants and the other preparation needed for trial” for agreeing to a March 2025 trial date. (Opposition at p. 13.) Despite the Court’s August 18, 2023 warning about the uncertainty of the partial stay’s effect on the five-year deadline, Plaintiff took no further action until his December 4, 2024 opposition to Defendants’ ex parte application—after the November 3, 2024 deadline.

Plaintiff argues that Defendants used dilatory tactics to avoid discovery for over a year, making it impossible or impracticable to bring the action to trial. (Opposition at pp. 6, 17.) For example, “Defendants requested and were given several extensions to respond to the written discovery, and despite assurances they would provide substantive responses, Defendants served only blanket objections to every question, in July 2024.” (Id. at p. 6) Defendants took two and a half months to supplement their responses. (Ibid.) Plaintiff noticed seventeen depositions for percipient witnesses, scheduled for late February and early March 2025, but Defendants objected to all of them and refused to have the witnesses appear. (Id. at p. 7.) Plaintiff contends that Defendants’ conduct has caused significant delays, and “Defendants’ objective has been to drag out and delay discovery to Mata’s detriment, then spring this Motion as a trap to benefit from those deleterious efforts.” (Id. at pp. 12-13.)

These delays were within Plaintiff’s control. Discovery extensions “are ordinary incidents of litigation and the power to grant or deny such extensions rested entirely in the hands of real parties.” (Baccus, supra, 207 Cal.App.3d at p. 1533.) Defendants’ delay in fully responding to demands for discovery does not excuse Plaintiff from exercising reasonable diligence. (Martinez v. Landry’s Restaurants, Inc. (2018) 26 Cal.App.5th 783, 796.) Importantly, Plaintiff has not filed a single motion to compel discovery since the stay was lifted on August 19, 2022. Plaintiff contends that “motions to compel will be necessary if the parties are unable (as seems likely to be the case) to meet and confer to resolve the discovery abuse by defendants. But time is needed to address those discovery transgressions and shortfalls.” (Opposition at p. 7) This does not demonstrate reasonable diligence in prosecuting the case, especially if Defendant provided deficient discovery responses in July 2024 when the deadline to bring the case to trial was November 3, 2024.

Plaintiff argues that he could not proceed to trial until the Court ruled on his request to relate and consolidate this case with Case No. 21STCV08255. (Opposition at p. 10.) That process—an ordinary incident of proceedings—did not prevent him from prosecuting this case. (See Fidelity National Home Warranty Co. Cases (2020) 46 Cal.App.5th 812, 855 [attempts to coordinate and consolidate cases did not unreasonably delay efforts to litigate the case].) And when the Court did relate and consolidate the cases on May 23, 2023, over seventeen months still remained before the deadline.

Plaintiff also argues that Defendants’ motion for summary judgment requires tolling. (Opposition at pp. 13, 17.) Plaintiff notes that the motion was specially set for July 18, 2025, and the trial date was continued from March 10, 2025 to September 15, 2025 to accommodate the motion. (Id. at p. 13) However, the motion was filed on November 22, 2024, after Plaintiff’s deadline of November 3, 2024. Additionally, Defendants’ motion was filed in reliance on the then-scheduled trial date, and the Court’s December 27, 2024 minute order setting the hearing date includes, “Defendant reserves its objections to the scheduling. The parties have not reached any agreement to modify or extend the five-year rule at this time.”

Because it was not “impossible, impracticable, or futile” to bring this action to trial due to factors not reasonably within the control of Plaintiff, the Court concludes that Plaintiff is not entitled to tolling under subdivision (c).

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court