Judge: Thomas S. Mcconville, Case: 2016-00889753, Date: 2023-05-22 Tentative Ruling

Defendant On Target’s motion to dismiss is DENIED.  (Code Civ. Proc., § 583.010.)

On its own motion, the court takes judicial notice of the following documents in its records (Evid. Code, § 452, subd. (d)(1)): (1) plaintiff’s motion to augment expert witness list (ROA 481), and moving defendant’s opposition thereto (ROA 521); (2) plaintiff’s ex parte application to advance the hearing on his motion to augment, filed on 10-26-22 (ROA 497), moving defendant’s opposition thereto (ROA 501), and the court’s 10-28-22 order granting same (ROA 503); (3) plaintiff’s ex parte application to continue trial to 12-19-22, filed on 10-31-22 (ROA 510), moving defendant’s opposition thereto (ROA 516), and the court’s 11-1-22 order continuing that ex parte hearing to 11-22-22); and (4) the court’s 11-22-22 order granting plaintiff’s motion to augment expert witness list, and granting plaintiff’s ex parte application / motion to continue trial (ROA 550).

When plaintiff last sought to continue trial, he requested trial be continued only until 12-19-22, due to unforeseen circumstances creating the necessity for a new expert designation, and expressly argued for tolling of the five-year statute.  (ROA 510.)  Defendant opposed this trial continuance request on numerous grounds, which did not include the five-year statute; further, moving defendant expressly rejected plaintiff’s proposed three-week continuance, stating counsel was “not available on the new trial date proposed, and in fact has one or more trials set each month from now through June 2023.”  (ROA 516.)  The court’s 11-22-22 order expressly states that trial was continued to 8-21-23 “[p]er oral agreement of all parties.”  (ROA 550.) 

On the record presented, it cannot be said that moving defendant did not agree to trial beyond the statutory deadline.  (Code Civ. Proc., § 583.330, subd. (b) [extension by “oral agreement made in open court, if entered in the minutes of the court or a transcript is made”]; see also In re Thatcher's Estate (1953) 120 Cal.App.2d 811, 814 [waiver]; see also Holder v. Sheet Metal Worker's Internat. Assn. (1981) 121 Cal.App.3d 321, 327 [“When a defendant selects a trial date beyond the [statutory] period, he shows his willingness to excuse delay”].) 

Plaintiff shall give notice.