Opinion
C094222
10-30-2023
NONYEREM MADU et al., Plaintiffs and Appellants, v. MARGARET SORENSEN, Defendant and Respondent.
NOT TO BE PUBLISHED
Order Filed Date 11/17/23
Super. Ct. No. 34-2015-00185087-CU-PA-GDS
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on October 30, 2023, be modified as follows:
The last paragraph starting on page 7 of the opinion that begins with "On April 3, 2020, plaintiffs' counsel e-mailed" is amended to add the phrase "when the court reopened" after "stated he would file a motion for priority setting" so the paragraph reads as follows:
On April 3, 2020, plaintiffs' counsel e-mailed defendant's counsel noting they were approaching the October 2, 2020, five-year deadline to prosecute the case, and asking if defendant might agree to extend the deadline in the hopes of resolving it through alternate dispute resolution. On April 23, 2020, defense counsel responded that he did not have the authority to extend the five-year deadline. Plaintiffs' counsel then noted that Emergency Rule 10, which was adopted after he sent his April 3, 2020, e-mail, provided them with an additional six months, stated he would file a motion for priority setting when the court reopened, and asked if the defense might stipulate to an expedited trial. Defense counsel stated he needed to check with the adjuster, but that he was "sure" they could "stipulate to a trial date within that time frame."
The second paragraph on page 11 of the opinion that begins with "In their briefing, plaintiffs took the position" is amended to change the word "implacability" to "impracticability" so the paragraph reads as follows:
In their briefing, plaintiffs took the position that the court had been closed for pretrial proceedings that might enable them to obtain some form of solution to or relief from missing the deadline to bring their case to trial until February 9, 2021, and, they had diligently pursued relief from missing this deadline in that context. They argued that once they were able to avail themselves of the opportunity to be heard regarding a trial date, the earliest available date was the June 8, 2021, date the presiding judge assigned. Plaintiffs argued that same purported inability to file a motion to obtain a trial date prior to February 9, 2021, should operate to extend the time they had to bring the case to trial due to impossibility, impracticability, or futility under Code of Civil Procedure section 583.340, subdivision (c).
This modification does not affect the judgment. In all other respects, the petition for rehearing is denied.
HULL, J.
SUMMARY OF THE APPEAL
Plaintiffs Nonyerem Madu and Zuma Madu filed their action against defendant Margaret Sorenson on October 2, 2015. On April 26, 2021, the trial court granted defendant's motion to dismiss the action on the grounds that plaintiffs had failed to bring their case to trial within the five-year-and-six-month deadline under Code of Civil Procedure section 583.310 and Emergency Rule 10(a) (Cal. Rules of Court, appen. I, emergency rule 10). Statutory section citations that follow are found in the Code of Civil Procedure unless otherwise stated.
On appeal, plaintiffs argue the trial court abused its discretion when it granted the motion to dismiss. Plaintiffs argue the section 583.310 deadline to bring the action to trial ought to have been tolled for an additional 139 days, on top of the six months provided under Emergency Rule 10(a), under section 583.340, subdivision (c), which provides the deadline under section 583.310 must be tolled during a period when, "[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile." Plaintiffs maintain the 139 days covers from March 17, 2020, to August 3, 2020, when the superior court was "closed for civil trials," and it was impossible to bring an action to trial.
We note that plaintiffs' statement that the Sacramento Superior Court was closed for civil trials for 139 days is not accurate. The court did not hear civil trials between March 17, 2020, and January 4, 2021, which means it did not hear civil trials for at least 293 days because of the pandemic. The 139-day period, from March 17, 2020, to August 3, 2020, is the 139-day period when the presiding judge was not hearing motions regarding trial dates.
Plaintiffs also argue that in applying the diligence requirement plaintiffs must satisfy to claim tolling under section 583.430, subdivision (c), the trial court dismissed their case because of their mistaken reading of orders issued by the Superior Court during the COVID-19 pandemic, without analyzing if it was impossible to bring the case to trial during the court closures. They argue that, regardless of their mistake, the trial court still should have considered if it was impossible for them to bring their case to trial during the 139-day period.
We will affirm the judgment. We conclude the law and motion court understood its discretion to make its own findings as to diligence and reasonably applied the diligence requirement to conclude plaintiffs were not entitled to toll the deadline under section 583.340 during the period the court did not hear civil trials.
FACTS AND HISTORY OF THE PROCEEDINGS
A. Proceedings Prior to March 17, 2020
Plaintiffs filed a complaint on October 2, 2015, and defendant answered on February 17, 2016.
In May 2018 the trial court ordered the case to arbitration. In September 2018 the parties stipulated to private mediation in lieu of arbitration, and on October 9, 2018, the trial court entered an order for the parties to enter mediation pursuant to their stipulation. According to a declaration filed by plaintiffs' counsel below, the mediator led a mediation between the parties in December 2018. The case did not settle. (See also Batt v. Stedman (1918) 36 Cal.App. 608, 609 [adopting an appellant's statement of the case when a respondent agreed that statement substantially stated the case].)
In November 2019 the parties exchanged discovery requests, and they exchanged responses in January 2020.
The case was never put into the trial court's trial setting procedures. Based on the record, it appears the last filing in the trial court prior to the COVID-19 pandemic was the October 9, 2018, stipulated order for mediation.
B. COVID-19, the Governor's Emergency Orders, Acts of the Chief Justice, and Judicial Council Emergency Rule 10
On March 4, 2020, the Governor of California declared a state of emergency due to the COVID-19 pandemic. (National Assn. of Criminal Defense Lawyers v. Newsom; Becerra (May 4, 2020, No. S261827) __Cal.5th __ .) On March 19, 2020, he issued an executive order directing Californians not providing essential services to stay home. (Governor's Exec. Order No. N-33-20 (Mar. 19, 2020).) "The order did not close the courts, which provide an essential service." (E.P. v. Superior Court (2020) 59 Cal.App.5th 52, 55.)
"On March 23, 2020, Chief Justice Tani G. Cantil-Sakauye, pursuant to her authority under the California Constitution, article VI, section 6, and Government Code section 68115, issued an order authorizing superior courts to adopt proposed local rules or local rule amendments to address the impact of the COVID-19 pandemic to take effect immediately, without advance circulation for 45 days of public comment. [Citation.] [¶] On March 27, 2020, the Governor issued Executive Order No. N-38-20, which 'suspended any limitations in Government Code section 68115 or any other provision of law that limited the Judicial Council's ability to issue emergency orders or rules, and suspended statutes that may be inconsistent with rules the Judicial Council may adopt.' (Stanley v. Superior Court[ (2020)] 50 Cal.App.5th [164,] 167-168[ (Stanley)].)" (E.P. v. Superior Court, supra, 59 Cal.App.5th at p. 55.)
On April 6, 2020, the Judicial Council adopted a series of emergency rules, including Emergency Rule 10, which created extensions of time in which to bring civil actions to trial. (Cal. Rules of Court, appen. I, emergency rule 10.) Under subdivision (a) of the rule, "[n]otwithstanding 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."
C. Sacramento Superior Court Early Pandemic Response
On March 17, 2020, a little over four years and five months after this action was filed, the Sacramento Superior Court issued an order (1) deeming March 18, 2020, though April 16, 2020, holidays for purposes of computing the time to file papers under certain provisions; and (2) closing all courtrooms except to perform enumerated timesensitive, essential functions. The listed exceptions to the closure did not include motions for trial setting or motions to place matters in the trial setting process. All nonenumerated matters were continued by the court, with notice of the continued dates to be provided later. The order also extended other deadlines.
In a March 19, 2020, order, the Sacramento Superior Court declared March 20, 2020, through March 30, 2020, to be judicial holidays for all purposes except for an enumerated list of matters that was narrower than the list provided in the March 17, 2020, order-e.g., the list did not open the trial court for motions for trial setting or placement on the trial setting process. This order also expressly suspended all matters not expressly enumerated. The court later amended this March 19, 2020, order so that it, with its more limited scope of operations, remained in effect through April 16, 2020. Later orders extended some court closures and holidays through July 10, 2020, continued to declare holidays for certain filing purposes, and began to allow the court to hold sessions anywhere in the County, such as at juvenile detention facilities and correctional facilities.
D. Sacramento Superior Court's May 18, 2020, Notice and August 3, 2020, Order; Early Stages of Civil Reopening; January 2021 Closure
Under a May 18, 2020, notice, the Sacramento Superior Court's Presiding Judge Law and Motion calendar was scheduled to begin hearing limited motions under Local Rule 1.05 on June 5, 2020. The notice specified that motions regarding trial dates would "only be heard once the Trial Setting Program [was] restored." The notice otherwise laid out procedures for filing motions, attending hearings, obtaining hearing dates for previously-continued hearings, and reserving hearing dates on new motions.
On August 3, 2020, 139 days after March 17, 2020, the trial court issued an order regarding the resumption of specified civil services and proceedings, the phased and limited resetting of civil trial and mandatory settlement conference dates, and law and motion procedures before the presiding judge. The court stated that the presiding judge had determined the court could begin a phased and limited resetting of previously continued civil trials and mandatory settlement conferences. Under the order, the Supervising Civil Judge's Department would begin referring cases which had civil trial dates and corresponding mandatory settlement conference dates that were continued by the March 17, 2020, order in phases to the COVID-19 Trial Setting Process to select new mandatory settlement conference and trial dates. The earliest possible trial dates would be in January 2021.
In addition to providing details regarding previously continued trials, the order stated: "the Presiding Judge has determined that the Court is able to resume hearing the full scope of Presiding Judge Law and Motion matters set forth in Local Rules 1.05 and 1.07 by remote appearance in Department 47." Therefore, it ordered, "[c]ommencing August 3, 2020, the Presiding Judge Law and Motion Calendar shall be open to the full scope of matters set forth in Local Rules 1.05 and 1.07, by remote appearance in Department 47." Under Sacramento Superior Court Local Rule 1.05(b), in civil actions the presiding judge hears all motions to advance trials.
On January 8, 2021, the court issued a news release that stated pursuant to a "stay at home" order made by Governor Newsom, jury trials would be suspended until January 29, 2021.
E. Sacramento Superior Court's February 9, 2021, Order
On February 9, 2021, the trial court issued another order regarding the resumption of specified civil services and proceedings, and the continued re-referral of cases to the COVID-19 Trial Setting Process. In the order, the court stated that the presiding judge's March 17, 2020, order had delayed setting mandatory settlement conference and trial dates in civil cases that had already been referred to the trial setting program, but which had not had trial and mandatory settlement conference dates as of that date. The order stated that the presiding judge had determined the court could begin setting cases for trial and mandatory settlement conference dates, and it discussed the timeline and proceedings for setting dates for these re-referred cases. The earliest anticipated trial dates for this group of cases were November 2021. According to a public notice, these re-referred cases would be directed to the COVID-19 Trial Setting Process webpage.
The public notice also discussed issues stemming from statutory requirements to bring cases to trial within specified statutory deadlines. It stated, "Emergency Rule 10 extended the time in which to bring a civil action to trial for all cases filed on or before April 6, 2020. For such cases, the five-year period in Civil Procedure Code section 583.310 is extended by six months, for a total time of five years and six months." The notice also discussed anticipated procedures for cases that had not been referred to the trial setting process before March 17, 2020. It stated, "[c]ases that had not been referred to [trial setting process] as of March 17, 2020, remain in the Case Management Program (CMP). The Court's CMP Departments have been and remain suspended until further notice. Upon reopening of the CMP Departments, the Court will resume Case Management Conferences, including new referrals of cases to [the trial setting process]. Parties are to accomplish service of all parties named in the action. Parties shall continue to ensure that all Defendants and Cross-defendants have answered, been dismissed, or had their defaults entered."
F. Parties Actions in March 2020 and Later
In March 2020, the parties exchanged discovery requests, and they exchanged responses in April 2020. In April 2020 the parties exchanged offers to compromise under Code of Civil Procedure, section 998. In June 2020, the parties exchanged subpoenas and objections to the same, and they reached agreements as to those subpoenas and objections.
On April 3, 2020, plaintiffs' counsel e-mailed defendant's counsel noting they were approaching the October 2, 2020, five-year deadline to prosecute the case, and asking if defendant might agree to extend the deadline in the hopes of resolving it through alternate dispute resolution. On April 23, 2020, defense counsel responded that he did not have the authority to extend the five-year deadline. Plaintiffs' counsel then noted that Emergency Rule 10, which was adopted after he sent his April 3, 2020, e-mail, provided them with an additional six months, stated he would file a motion for priority setting, and asked if the defense might stipulate to an expedited trial. Defense counsel stated he needed to check with the adjuster, but that he was "sure" they could "stipulate to a trial date within that time frame."
On August 31, 2020, plaintiffs' counsel sent a follow-up e-mail to defense counsel, writing, "I think it's time that we need to talk about this again." He noted that the deadline to bring the case would, given Emergency Rule 10, be approaching in April 2021. But, he stated there was a "problem" because the trial court had stated it did not plan to set trials until January 2021 and that, by then, they would have a nine-month backlog due to COVID. He proposed the parties consider stipulating to a bench trial, binding arbitration, or on a motion for priority trial setting. Defense counsel did not respond, and plaintiffs' counsel assumed defense counsel would act in accord with their April 23, 2020, e-mail exchange and stipulate to a trial date within the requisite timeframe.
On February 9, 2021, the day the trial court issued its order regarding setting trial dates for cases that had been assigned to the trial setting process but which had not yet been assigned dates, plaintiffs' counsel again e-mailed defense counsel, noting the court had stated it anticipated the earliest it would begin the trials in that batch of cases was November 2021, a date that "considerably exceeds" the April 2021 deadline. He asked defense counsel to stipulate to extend the deadline to prosecute to March 31, 2022, and stated he would file a motion if he did not hear back by February 15, 2021. Defense counsel refused to stipulate.
G. February 2021 Motion for Preference
On February 23, 2021, plaintiffs filed a motion on the presiding judge's law and motion calendar seeking trial setting preference. The motion was calendared for a hearing on March 19, 2021. Plaintiffs took the position that the case had not yet been set for trial or placed in the trial setting process due to the COVID-19 pandemic. Plaintiffs' counsel stated he had tried to meet and confer with defense counsel multiple times to stipulate to either a trial date or an extension of the five-year deadline to bring an action, and after exhausting those options needed to bring a motion before the court. Plaintiffs' counsel said, "[p]ursuant to the February 9, 2021[,] Court Order and Public Notice issued by Presiding Judge Hom[,] Plaintiff hereby requests one of the following options: an immediate entry into the trial setting process with preference; a Court ordered extension of the prosecutorial deadline; or some other Court order within the Court's equitable powers in the interest of Justice."
The defendant opposed the motion, arguing that the motion was improper because the case had not yet been referred to the trial setting process, stating, "[t]he plaintiff has never requested that this case be referred to the trial setting conference even though they were aware of the prosecutorial deadlines prior to the COVID pandemic and during the pandemic." The defense argued that prior to the pandemic, "Plaintiff's [sic] counsel had approximately 4 years and 5 months . . . to request a trial date and did not do so." The defendant noted Code of Civil Procedure section 583.310 gives a plaintiff five years to bring a case to trial, and that Emergency Rule 10 extended that time by six months, and defendant argued that plaintiff had waited five years and five months to bring the motion for preference, which was only one month before the extended deadline to bring a case to trial.
Presiding Judge Hom denied the motion for preferential trial setting, but he found good cause to specially set a trial under California Rules of Court, rule 3.1335. Presiding Judge Hom set the trial for June 8, 2021. In the ruling denying the motion, Presiding Judge Hom calculated the deadline to bring the case to trial as April 2, 2021, under Code of Civil Procedure section 583.310 and Emergency Rule 10.
The presiding judge observed that, based on this calculation, the plaintiffs' motion for preference was being heard only 10 days before the expiration of the deadline to bring the case to trial, that the record showed plaintiffs were aware they might need to bring a motion for preference as many as 10 months before they filed the motion, and plaintiffs had made no effort to have the motion heard on shortened time. The presiding judge also observed the court's file was "devoid of any action" to advance the case to trial between the October 9, 2018, appointment of a mediator and the February 23, 2021, filing of plaintiffs' motion for preference. It stated, "[b]y failing to take any action to advance this matter on the court's calendar during that time Plaintiffs failed to fulfill their obligation to exercise due diligence to bring this motion to trial." The court concluded, given the circumstances, the request for preference was untimely, and it denied the request.
H. Motion to Dismiss
The same day defendant filed an opposition to plaintiffs' motion for trial preference, she filed a motion to dismiss the action for failure to prosecute in the court's law and motion department, citing both a mandatory five-year limit contained in Code of Civil Procedure section 583.310 and the court's discretionary authority to excuse actions when plaintiffs fail to bring to trial within three years as outlined in Code of Civil Procedure section 583.420.
On April 14, 2021, the court issued a tentative ruling stating it would drop the motion to dismiss the action under the court's discretionary authority to dismiss certain actions not brought to trial in three years. On April 15, 2021, defendant refiled the Code of Civil Procedure section 583.420 motion to dismiss.
On April 16, 2021, the trial court issued another tentative ruling reiterating its decision to drop the motion to dismiss to the extent it sought relief under Code of Civil Procedure sections 583.410-583.430, setting the matter for a hearing on April 20, 2021, and tentatively granting the motion to dismiss under the five-year statute.
In their briefing, plaintiffs took the position that the court had been closed for pretrial proceedings that might enable them to obtain some form of solution to or relief from missing the deadline to bring their case to trial until February 9, 2021, and, they had diligently pursued relief from missing this deadline in that context. They argued that once they were able to avail themselves of the opportunity to be heard regarding a trial date, the earliest available date was the June 8, 2021, date the presiding judge assigned. Plaintiffs argued that same purported inability to file a motion to obtain a trial date prior to February 9, 2021, should operate to extend the time they had to bring the case to trial due to impossibility, implacability, or futility under Code of Civil Procedure section 583.340, subdivision (c).
Plaintiffs' position that the trial court was not open to hearing motions about trial dates until February 9, 2021-as opposed to on August 3, 2020-relied on their reading of the August 3, 2020, order. In a declaration filed in opposition to the motion to dismiss, plaintiffs' counsel noted the August 3, 2020, order's reference to motions and applications protocol in the May 18, 2020, public notice, then emphasized that the May 18, 2020, public notice stated motions regarding trial dates would only be heard once the trial setting program was restored.
At oral argument, plaintiffs' counsel argued "that the built-in exception" for impartibility, impossibility, or futility contained in Code of Civil Procedure section 583.340, subdivision (c), "applied during the eighteen months that the court was closed for civil trials during COVID."
After argument, the motion was submitted to the court, which later issued a final ruling granting the motion. In making its ruling, the trial court first noted the initial deadline to bring the case to trial was October 2, 2020, which was extended to April 2, 2021, by Emergency Rule 10(a). The court then quoted, at length, the ruling of the presiding judge on plaintiffs' motion for trial preference, in which the presiding judge had (1) observed plaintiffs were aware of the potential need to seek preference in April 2020, but did not bring a motion to seek that preference for another 10 months; (2) stated the record was devoid of any court filings between October 9, 2018, and February 23, 2021; and, (3) concluded that this lack of action meant that plaintiffs had "failed to fulfill their obligation to exercise due diligence to bring this matter to trial."
The court acknowledged that plaintiffs' counsel believed they could not file the order for preference before February 9, 2021, based on the language of various court orders, but it noted this belief was incorrect. Specifically, the court observed that the source of plaintiffs' confusion appeared to be language in the August 3, 2020, order, which had opened the presiding judge's calendar to the full scope of matters set forth in Local Rule 1.05, subject to protocols set forth in the May 18, 2020, public notice. The court observed that the plaintiffs appeared to believe the language in the May 18, 2020, notice that stated motions regarding trial dates would only be heard once the trial setting program was restored meant that motions regarding trial dates, including motions for preference, were not included in the scope Local Rule 1.05 motions that the presiding judge could hear under the August 3, 2020, order. In their opening brief, plaintiffs do not dispute that their reading of the August 3, 2020, order was mistaken.
The court also considered arguments made by plaintiffs' counsel at oral argument based on Code of Civil Procedure, section 583.340, subdivision (c). The court stated, "[t]he Court is mindful of Plaintiff's [sic] counsel's argument that, based on the various Coronavirus orders issued by the Court, Plaintiff [sic] believed the motion for preference was filed as soon as practicable. [¶] Plaintiff's [sic] arguments in opposition to the present motion to dismiss would require this Court to reconsider the Presiding Judge's March 19, 2021 order[.]" The court restated much of that holding and summarized it, stating, "[t]he Presiding Judge's order specifically found that Plaintiff [sic] delayed in bringing the motion for preference and that [the] trial was set outside the statutory timeframe, even with the additional six months afforded by Judicial Emergency Rule 10. There are no facts presented by Plaintiff [sic] relevant to the instant motion that did not yet exist at the time of the motion for preference. Thus, this Court has no basis on which to reconsider the Presiding Judge's order, notwithstanding Code of Civil Procedure section 583.340."
I. Proceedings After Ruling on Motion to Dismiss
On May 7, 2021, the trial court entered a judgment dismissing the action with prejudice. On May 10, 2021, plaintiffs filed a motion to reconsider the dismissal ruling on the grounds that at a May 6, 2021, meeting of the Sacramento Superior Court Civil Advisory Committee, Presiding Judge Hom had stated that under sections 583.310, 583.330, and 583.340, given the COVID pandemic and difficulties bringing cases to trial, he believed that if a defendant were to refuse to stipulate to extend the deadline to bring a case to trial, that should serve as a qualification to toll the five-year deadline to bring a trial due to impracticality.
Defendant's counsel served a notice of entry of judgment on May 12, 2021. Following a hearing, the court dropped plaintiffs' motion on the grounds that it was without jurisdiction to consider it following the notice of entry of judgment. On May 26, 2021, defendants took the refiled motion to dismiss under the discretionary three-year statute off calendar.
Plaintiffs filed a notice of appeal on May 27, 2021.
DISCUSSION
I
Overview of Laws Governing Dismissals for Failure to Try a Case in Five Years
Some general statutory background and case law showing a possible difference in how courts have applied the statutes informs our analysis of plaintiffs' claims on appeal.
A. Statutory Overview and Standard of Review
Sections 583.310-583.360, which govern the mandatory dismissal of actions for failure to prosecute within five years of filing an action, are contained in chapter 1.5, of title 8, of part 2 of the Code of Civil Procedure. Section 583.130 states the general policies to be considered when applying the statutes that govern the dismissal of actions for delay in prosecution: "It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter."
Under section 583.310, "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." An action is "commenced" when a plaintiff files their original complaint. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723 (Bruns).) A case not brought to trial within five years is subject to dismissal, either upon a noticed motion by the defendant or on the court's own motion. (§ 583.360, subd. (a).) Dismissal is "mandatory and . . . not subject to extension, excuse, or exception except as expressly provided by statute." (§ 583.360, subd. (b).) "Under the press of this statutory requirement, anyone pursuing an 'action' in the California courts has an affirmative obligation to do what is necessary to move the action forward to trial in timely fashion." (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 322.)
"Government Code section 68115 vests the Chief Justice with authority to amend various court procedures in emergency situations, including an 'epidemic.'" (Stanley, supra, 50 Cal.App.5th at p. 168, fn. 1.) The statute authorizes the Chief Justice to "[e]xtend the time periods provided in Section[] 583.310 . . . of the Code of Civil Procedure to bring an action to trial. The extension shall be for the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council." (Gov. Code, § 68115, subd. (a)(6).) The Governor's March 27, 2020, executive order suspended any limitations in Government Code section 68115. (Stanley, supra, 50 Cal.App.5th at p. 168, fn. 1.)
Section 583.340 provides certain exceptions "shall be excluded" from the period of time in which an action must be brought to trial. As relevant here, section 583.340, subdivision (c), provides that the time during which "[b]ringing the action to trial . . . was impossible, impracticable, or futile" shall be excluded "[i]n computing the time within which an action must be brought to trial."
The legislature adopted section 583.340 in 1984 as proposed in a report by the California Law Revision Commission without change. (See 17 Cal. Law Revision Com. Rep. (1984) pp. 905, 935.) Thus, the commission's report is entitled to substantial weight in construing the statute. (Sierra Nev. Memorial-Miners Hosp. v. Superior Court (Hudson) (1990) 217 Cal.App.3d 464, 469 (Sierra).)
In proposing a set of revised statutes to govern the dismissal of actions for lack of prosecution, the commission stated, "[t]he cases have developed exceptions to the rules requiring dismissal and have added court discretion in many cases where it appears that the delay is excusable. The statutes should accurately state the law. The proposed law codifies the significant case law rules governing dismissal for lack of prosecution in the manner described below." (17 Cal. Law Revision Com. Rep., supra, at pp. 915-916, fn. omitted.)
According to the commission's notes regarding section 583.340, subdivision (c), it "codifies the [pre-adoption] case law 'impossible, impractical, or futile' standard. The provisions of subdivision (c) must be interpreted liberally, consistent with the policy favoring trial on the merits. See Section 583.130 (policy statement)." (17 Cal. Law Revision Com. Rep., supra, at p. 936.)
However, one of the commission's notes expressly states that section 583.340 is intended to overrule one aspect of some of the prior decisions. It states, "[u]nder section 583.340 the time within which an action must be brought to trial is tolled for the period of the excuse, regardless [of] whether a reasonable time remained at the end of the period of the excuse to bring the action to trial. This overrules cases such as State of California v. Superior Court[ (1979) ]98 Cal.App.3d 643, [], and Brown v. Superior Court[ (1976) ] 62 Cal.App.3d 197[]." (17 Cal. Law Revision Com. Rep., supra, at p. 936.) According to the commission's report explaining its recommendation, under the law prior to the adoption of the revised statutes, "if the impossibility, impracticability, or futility ended sufficiently early in the statutory period so that the plaintiff still had a 'reasonable time' to get the case to trial, the tolling rule [did not] apply. [Section 583.340] change[d] this rule so that the statute tolls regardless when during the statutory period the excuse occurs. This is consistent with the treatment given other statutory excuses; it increases certainty and minimizes the need for a judicial hearing to ascertain whether or not the statutory period has run." (17 Cal. Law Revision Com. Rep., supra, at p. 919, fns. omitted.)
Thus, our Supreme Court has observed when discussing the commission's notes, under section 583.340, "a condition of impossibility, impracticability, or futility need not take the plaintiff beyond the five-year deadline to be excluded; it will be excluded even if the plaintiff has a reasonable time remaining after the period to bring the case to trial." (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1101 (Gaines).) However, the new statutes left "as a viable precedent the applications of the existing cases" as to how to determine whether a condition creates an "impossibility, impracticability, or futility." (Sierra, supra, 217 Cal.App.3d at p. 471.)
In deciding whether the section 583.340, subdivision (c), exception has been met, "the court must consider' "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."' (Bruns,[ supra, 51 Cal.4th] at p. 730, quoting Moran v. Superior Court (1983) 35 Cal.3d 229, 238 [][ (Moran)].)" (Gaines, supra, 62 Cal.4th at p. 1100.)
This is so because "case law both predating and postdating the 1984 statutory revision has long held that '[f]or the tolling provision of section 583.340[(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. [Citations.]" (Gaines, supra, 62 Cal.4th at p. 1102.)
As such, "[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 [].)' "[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[, supra, ] 217 Cal.App.3d [at p.] 472 [].) '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 factsensitive 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 [].)' "[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 [].)" (Bruns, supra, 51 Cal.4th at p. 731.)
In Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 326, 328 (Tamburina), this court identified three factors to be considered when deciding if dismissal is proper under section 583.340, subdivision (c). To apply the section 583.340, subdivision (c), exception, a plaintiff must show (1) a circumstance establishing impossibility, impracticability, or futility; (2) a causal connection between the circumstance and the failure to move the case to trial; and (3) that they were "reasonably diligent in prosecuting [their] case at all stages of the proceedings." (Tamburina, supra, 146 Cal.App.4th at p. 326; see also Bruns, supra, 51 Cal.4th at p. 731 [citing Tamburina regarding what one must prove to show impossibility, impracticability, or futility]; Tanguilig v. Neiman Marcus Group, Inc., supra, 22 Cal.App.5th at p. 323.) The "all stages" language, its import, how it should be applied, and whether it correctly reflects the Legislative intent in adopting section 583.340, subdivision (c), is examined in some detail in Seto v. Szeto (2022) 86 Cal.App.5th 76, 98-99 (Seto), which we discuss below.
" '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." [Citation.] The plaintiff bears the burden of proving that the circumstances warrant application of the . . . exception. [Citation.] .... 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. [Citations.]' (Bruns, supra, 51 Cal.4th at p. 731.) Under that standard, '[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [], fns. omitted.)" (Gaines, supra, 62 Cal.4th at p. 1100.)
B. Recent Case Law Identifying Divergent Approaches to Diligence Analysis: Seto v. Szeto, supra, 86 Cal.App.5th 76
The law and motion judge's ruling in this action is based largely on a finding that plaintiffs failed to meet their obligation to exercise reasonable diligence in prosecuting their case.
In Seto our colleagues in the First Appellate District, Division Four, in the majority and two concurring opinions, engaged in a thorough description of how courts have seemingly varied in their treatment of analyzing the diligence requirement under the current statutory scheme. Given the Seto opinion was filed less than two weeks before the respondent's brief was filed in this appeal, we thought it was prudent to ask both parties to provide additional briefing on the import of Seto, with some attention given to how each of the concurrences might inform our decision here. Here, we summarize portions of Seto that inform our analysis of this case, highlighting its treatment of cases that address purported impossibility, impracticability, or futility based on courtroom unavailability.
As a preliminary matter, we observe that the alleged period of impossibility in Seto was markedly different than the period at issue here. Here, we are concerned with the impact of courtroom closures during the COVID pandemic, and in Seto the court considered possible tolling during a period of time between when defendants signed a settlement agreement and when they abandoned it. (Seto, supra, 86 Cal.App.5th at p. 81.) In reversing the trial court's dismissal of the underlying action, the Seto court found that, under the facts, the period of failed settlement had created at least some period of impossibility, impracticability, or futility. (See id. at p. 92.)
1. Lead Opinion and Its Treatment of Courtroom Unavailability Cases
What is notable for our purposes is the Seto court's consideration of the trial court's "alternative" grounds for refusing to exclude the period of purported impossibility at issue. Specifically, the court of appeal considered the trial court's finding that the period was not tolled "because plaintiffs failed to show that they could not have brought their claims to trial 'as a result of' the failed settlement agreement, and because they did not exercise reasonable diligence in setting the case for trial after learning in April 2020 that there was a disagreement about the settlement." (Seto, supra, 86 Cal.App.5th at p. 93.) In particular, we look at the court's consideration of the requirement that a plaintiff exercise diligence "at all stages" of the proceeding. (See id. at pp. 98-100.)
The lead opinion allowed that statements requiring diligence at all stages in the proceedings were "correct in that a court will not exclude a period of putative impossibility at any point in the five-year period unless a reasonably diligent plaintiff, considering the stage of the litigation at which the putative impossibility occurred, would have been unable to overcome the difficulty. This point becomes especially significant when paired with the principles that a plaintiff's duty of diligence increases as the case proceeds to the end of the five-year period and that a plaintiff has the duty to call the court's attention to the deadline." (Id. at p. 98.)
But the lead opinion took issue with an interpretation of the diligence requirement that would read it to "mean that a plaintiff's lack of diligence later in a case can cause the forfeiture of an earlier period of tolling to which the plaintiff was entitled due to the legitimate impossibility, impracticability, or futility of bringing the action to trial during that time," specifically disagreeing with Tamburina to the extent it would allow such a forfeiture. (Seto, supra, 86 Cal.App.5th at p. 99.) Hence, the lead opinion took issue with the trial court's ruling that had prevented plaintiffs from relying on the exception contained in section 583.340, subdivision (c), due to their "purported failure" to use reasonable diligence after the tolled period. (Seto, supra, 86 Cal.App.5th at pp. 95-96.) It found this reasoning contrary to the commission's stated intent in proposing the 1984 amendments to both (1) abrogate the holdings in Brown v. Superior Court (1976) 62 Cal.App.3d 197, 198 and State of California v. Superior Court (1979) 98 Cal.App.3d 643-i.e., to overrule cases that had not tolled the five-year deadline when a reasonable time remained after the period of excuse to bring the action to trial; and (2) create more certainty in the application of the law. (See Seto, supra, 86 Cal.App.5th at p. 96.)
In its discussion, the Seto lead opinion examined what it saw as a tension between the approach taken by two different courts in their diligence analysis when considering the impact of continuances due to court congestion: Chin v. Meier (1991) 235 Cal.App.3d 1473 (Chin), and De Santiago v. D &G Plumbing, Inc. (2007) 155 Cal.App.4th 365 (De Santiago), and it sided with Chin. (Seto, supra, 86 Cal.App.5th at pp. 99-100.)
In Chin the plaintiff appealed an order dismissing her action for failure to bring the case to trial in five-years. (Chin, supra, 235 Cal.App.3d at p. 1475.) The court of appeal found the trial court should have tolled the deadline to bring the case to trial by 266 days due to four court-ordered continuances when "when both sides announced 'ready' but no courtrooms were available." (Ibid.)
In reaching its conclusion, the Chin court noted the Law Revision Commission notes to section 583.340 that state the time to bring an action is tolled for an excuse regardless of whether a reasonable time remains at the end of the period of excuse to bring the action to trial. (Chin, supra, 235 Cal.App.3d at p. 1477, citing 17 Cal. Law Revision Com. Rep., supra, at pp. 904, 935-936.) The court explained: "[w]e hold that section 583.340 subdivision (c) tolling includes the aggregate time a case is continued because of courtroom unavailability regardless of whether a reasonable time remains to bring the action to trial before the expiration of the five year limitation period." (Chin, supra, 235 Cal.App.3d at pp. 1477-1478.) "This statutory construction favors a trial on the merits and assures a plaintiff is not penalized because of courtroom unavailability." (Id. at p. 1478.)
The Chin court then discussed how one might calculate a new deadline once a period of unavailability was identified: "[t]hus, for purposes of the five-year limitation period, a court-ordered continuance when both sides announce 'ready' and no courtroom is available is to be treated as a discrete tolling event. '[I]t is clear that so long as the court may conclude that there was a period of impossibility, impracticability or futility, over which plaintiff had no control . . . the court is required to toll that period even if there is ample time after said period of impracticability within which to go to trial.' (New West Fed. Savings &Loan Assn. v. Superior Court (1990) 223 Cal.App.3d 1145, 1155 [].) [¶] Relying on Sierra[, supra, ] 217 Cal.App.3d [at p.] 472 [], respondent claims that the rule we announce '. . . would render the statute utterly indeterminate, subjective, and unadministerable, and thus absurd ....' We disagree. The trial court must merely subtract the aggregate periods of time attributable to each court-ordered continuance because of courtroom unavailability." (Chin, supra, 235 Cal.App.3d at p. 1478.)
In De Santiago, supra, 155 Cal.App.4th at page 368, the trial court entered a judgment of dismissal on an intervenor's complaint in intervention when the intervenor failed to bring the case to trial within the five-year period under section 583.310. On appeal, the intervenor claimed the five-year limitation did not bar the action because court congestion tolled the deadline. (Ibid.) The court of appeal affirmed the judgment. (Ibid.)
In granting the motion, the trial court in De Santiago had noted that there had been a one-month period when civil departments were shut down, that there may have been other short shutdowns due to congestion, and that the court had continued the case on its own motion for a year or so. (De Santiago, supra, 155 Cal.App.4th at p. 369.) But, the trial court stated, "[w]hat is also clear is that the plaintiff . . . did not motion this court to set the case specially for a date within the five years. That has been done in other cases, and this department always accommodates such requests. Even if the action was tolled during that period, the five years would still have passed. It is the opinion of this court, that Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262 [] remains the law of this State." (De Santiago, supra, 155 Cal.App.4th at p. 371.)
We note here that in Sanchez v. City of Los Angeles, supra, 109 Cal.App.4th at page 1274 the appellate court said,"' "Where a plaintiff possesses the means to bring a matter to trial before the expiration of the five-year period by filing a motion to specially set the matter for trial, plaintiff's failure to bring such motion will preclude a later claim of impossibility or impracticability." (Tejada v. Blas [(1987)] 196 Cal.App.3d 1335, 1340, [].)' (Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 165, [].)"
On appeal, the De Santiago court looked to the decision in Tamburina, supra, 147 Cal.App.4th at pages 328, 329, 333 and 336 for guidance. (De Santiago, supra, 155 Cal.App.4th at p. 372.) It noted Tamburina's articulation of the three factors that a court must find in determining if the section 583.340, subdivision (c), exception applies. (De Santiago, supra, 155 Cal.App.4th at p. 372.) With respect to the diligence factor," 'the requirement that a plaintiff exercise reasonable diligence at all stages of the proceedings must still be met to apply the impossibility, impracticability or futility exception to the five-year deadline.' (Tamburina, supra, 147 Cal.App.4th at p. 334.)" (De Santiago, supra, 155 Cal.App.4th at p. 372.)
The De Santiago court also quoted Tamburina for the proposition that," '[b]ecause 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. [Citations.] This duty of diligence applies "at all stages of the proceedings," and the level of diligence required increases as the five-year deadline approaches. [Citations.] 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." [Citations.]' (Tamburina, supra, 147 Cal.App.4th at p. 336; see also Sanchez, supra, 109 Cal.App.4th at p. 1270; Moss v. Stockdale, Peckham &Werner (1996) 47 Cal.App.4th 494, 502 [].)" (De Santiago, supra, 155 Cal.App.4th at p. 373.)
Applying these standards, the De Santiago court upheld the trial court's ruling. (De Santiago, supra, 155 Cal.App.4th at p. 377.) Regarding a 318-day continuance, it stated, "[plaintiff] failed to establish that the final continuance was due to courtroom unavailability or that [plaintiff] was reasonably diligent in prosecuting the case . . . during the final six months of the five-year period. During this time, [plaintiff] had a duty to bring to the trial court's attention the fact that the trial court set the trial for a date after expiration of the five-year period, and object. Upon becoming aware of the impending expiration of the five-year period, the trial court in all likelihood would have given the case priority for the purpose of trying the case before the five-year period expired. [Plaintiff's] attorney failed to alert the trial court that the trial date was beyond the five-year mark . . ., and thus, in effect, [plaintiff] acquiesced in the court's setting the trial date beyond the five-year mark. [¶] [Plaintiff] also had a duty to take whatever other measures were available to attempt to accelerate trial of the case before expiration of the five-year period, including bringing a motion to advance the trial. Even after the court set the case for trial beyond the five-year mark, there was ample time to move to advance the trial date pursuant to California Rules of Court, rule 3.1335." (Id. at p. 374.)
Finally, we note that De Santiago specifically rejected the reasoning in Chin, finding it contrary to Tamburina. It stated: "Chin is inconsistent with Tamburina. Chin rejected any consideration of reasonable diligence in determining whether the impracticability exception applied. In light of case precedent emphasizing that reasonable diligence is a critical factor in determining whether the impracticability exception tolls the five-year limitation period, we conclude, contrary to Chin, that when determining whether the impracticability exception applies and tolls the five-year period, reasonable diligence must be taken into consideration, particularly with regard to the period between the last continuance and the five-year mark. (Tamburina, supra, 147 Cal.App.4th at p. 336; see also Sanchez, supra, 109 Cal.App.4th at p. 1270; Moss v. Stockdale, Peckham &Werner, supra, 47 Cal.App.4th at p. 502; Wale, supra, 206 Cal.App.3d at p. 133.) [¶] Where there is the possibility that [plaintiff] could have brought the case to trial before expiration of the five-year mark, despite trial continuances, we cannot conclude the continuances resulted in impracticability. Reasonable diligence after the continuances is intrinsic to the determination of the impracticability exception, whether it is considered in determining the causal connection factor or as a separate factor. We thus reject Chin to the extent it concludes that the trial court must merely subtract the aggregate periods of time attributable to each court-ordered continuance because of courtroom unavailability, without considering whether the plaintiff was reasonably diligent in bringing the case to trial, particularly as the five-year mark approaches. (Chin, supra, 235 Cal.App.3d at p. 1479.) [¶] To conclude otherwise would wreak havoc on application of the five-year limitation period. In effect, every court-ordered continuance due to courtroom unavailability would toll the five-year limitation, even if it was nevertheless possible to bring the case to trial within the five-year limitation period upon exercising reasonable diligence. It is unlikely this was the intent of the Legislature in enacting section 583.340, subdivision (c)." (De Santiago, supra, 155 Cal.App.4th at pp. 376-377, italics added.)
The Seto lead opinion disagreed with De Santiago's statement that Chin's approach would wreak havoc, and it found that the "relatively straightforward" calculations Chin allowed "would be consistent with the policy expressed in section 583.130 favoring trials on the merits," and that, "as for legislative intent, the Law Revision Commission's comment is explicit that this was precisely the intent behind section 583.340(c)." (Seto, supra, 86 Cal.App.5th at pp. 100-101, fn. omitted.)
The Seto lead opinion also faulted the defendants' reliance on various cases in arguing dismissal was proper, including Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416 (Jordan), on the grounds that those cases had not considered the commission's intent to change the application of the section 583.340, subdivision (c), exceptions. (Seto, supra, 86 Cal.App.5th at pp. 96, 99.) In Jordan, supra, 182 Cal.App.4th at page 1420, the plaintiffs argued 12-weeks combined moratoria on civil trials tolled the deadline to bring the case to trial. The plaintiffs acknowledged the moratoriums in 2004 and 2005 were remote in time with respect to the five-year deadline in 2008. (Id. at p. 1421.) The plaintiff's also argued that de facto moratoriums on all but priority cases tolled the deadline. (Ibid.)
With respect to the 2004 and 2005 moratoriums, the Jordan court observed, "[w]hile 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, supra, 182 Cal.App.4th at p. 1421.)
With respect to the de facto moratoriums, the Jordan court noted that cases approaching five years were getting tried under those moratoriums. (Jordan, supra, 182 Cal.App.4th at p. 1422.)
The Jordan court also engaged in a general diligence inquiry, favoring the line of reasoning articulated in Tamburina, supra: "Plaintiffs failed to establish that, had they been reasonably diligent and requested their case be tried before the five-year period ran . . . their case would not have been tried. [¶] Furthermore, the record shows that plaintiffs were not reasonably diligent in bringing the case to trial within five years. There were hearings in the case in January, February, March, April, and May 2008, during which plaintiffs could have requested that the matter be tried before June 6, 2008, due to the impending expiration of the five-year period. Plaintiffs failed to do so, and also did not file a motion for a priority trial setting. [¶] A plaintiff has an obligation to monitor the case in the trial court, to keep track of relevant dates, and to determine whether any filing, scheduling, or calendaring errors have occurred. This obligation of diligence increases as the five-year deadline approaches. (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1286 []; see also Tamburina[, supra, ] 147 Cal.App.4th [at p.] 336 [].) Here, plaintiffs took no steps to set the case for trial before the expiration of the five-year period on June 6, 2008. [¶] Under such circumstances, we conclude the trial court did not abuse its discretion in dismissing plaintiffs' action based on the finding that plaintiffs failed to establish that bringing the action to trial was 'impossible, impracticable, or futile.' (§ 583.340, subd. (c).)" (Jordan, supra, 182 Cal.App.4th at p. 1422.)
2. Concurrences
There are two concurrences to the Seto opinion. (See Seto, supra, 86 Cal.App.5th at pp. 102 &119.)
In his concurrence, Justice Streeter took issue with the lead opinion's criticism of Tamburina. (Seto, supra, 86 Cal.App.5th. at p. 102.) He said that the diligence inquiry is a holistic test. (Id. at p. 106.) He observed that, "[i]n all of our Supreme Court's many applications of the 'all the circumstances of the individual case' standard, the court has never limited the diligence inquiry strictly to the putative tolling period. Quite to the contrary, it has made clear that the proper analysis is an overall inquiry into case-as-a-whole diligence." (Id. at pp. 106-107.) He noted that "the Supreme Court has reaffirmed the 'all the circumstances in the individual case' diligence standard as a guideline for evaluating the applicability of section 583.340, subdivision (c) on multiple occasions in recent years (Gaines, supra, 62 Cal.4th at p. 1100; Bruns[, supra, ] 51 Cal.4th [at p.] 730 []), each time citing Tamburina favorably." (Seto, supra, at p. 107.)
Justice Streeter noted that while the focal point of a trial court's inquiry will be on the period of claimed delay, the touchstone for evaluating a section 583.340, subdivision (c), excuse is whether a claimed tolling delay is avoidable. (Seto, supra, 86 Cal.App.5th at p. 108.) And, "[i]n the evaluation of whether a period of delay was avoidable, events that occurred both before and after the claimed tolling period will often be relevant. It makes no sense to force trial courts to put blinders on in evaluating diligence by confining their inquiry to the claimed tolling period. Courts must be able to consider whether, at every step in the case, the plaintiff did everything it reasonably could to avoid a delay that might become an obstacle to meeting the mandatory time-to-trial deadline." (Ibid.) Justice Streeter observed that Jordan, supra, 182 Cal.App.4th at page 1422, supports this view, implying he did not take the majority opinion's same view of the weight of the Jordan opinion. (Seto, supra, 86 Cal.App.5th at p. 108.)
Justice Streeter also believed that it was possible to harmonize Chin with a more holistic application of the Tamburina factors, stating, "[i]n my view, it is possible to say that, yes, under Chin, a court asked to apply section 583.340, subdivision (c) must exclude a period of impracticability from the computation of the statutory period to take a case to trial even if there is ample time to try the case after the tolled period, but at the same time that, under Tamburina, as part of its discretionary factual determination whether 'conditions exist[]' (§ 583.340, subd. (c)) to justify a finding of genuine impracticability, the court may consider whether there was (i) a causal connection between the claimed delay and the missed trial deadline and (ii) diligent prosecution throughout the entire history of the case. At the last step of this analysis, both of these Tamburina factors may bear on whether delay stemming from the claimed tolling period was avoidable." (Seto, supra, 86 Cal.App.5th at p. 119.)
Justice Goldman wrote a concurrence to provide some "additional explanation" as to why he joined the majority opinion. (Seto, supra, 86 Cal.App.5th at p. 119.) He expressed concern that the formulation Justice Streeter proposed would make it impossible or premature to determine at the end of a claimed period of tolling if any time had actually been tolled. (Id. at p. 120.) He expressed concern that Justice Streeter's position would force plaintiffs who had just experienced a period of tolling to bring a motion to accelerate a trial date, thereby denying the protections the tolling provisions afford. (See id. at p. 121.)
Justice Goldman examined the Law Revision Commission comments and found that Justice Streeter's position, which could result in not knowing at the end of a period of impossibility, impracticability, or futility if the statute had been tolled was contrary to the commission's aims to increase certainty and minimize the need for judicial hearings to determine if the statutory period had run. (Seto, supra, 86 Cal.App.5th at p. 122.) He also stated that post-1984 cases like Tejada v. Blas, supra, 196 Cal.App.3d at page 1340 and Lauriton v. Carnation Co., supra, 215 Cal.App.3d at page 165, employed an approach to the diligence analysis that the commission repudiated. (Seto, supra, at p. 124.) In Tejada v. Blas, supra, 196 Cal.App.3d at page 1340, the court held, "[w]here a plaintiff possesses the means to bring a matter to trial before the expiration of the five-year period by filing a motion to specially set the matter for trial, plaintiff's failure to bring such motion will preclude a later claim of impossibility or impracticability." Lauriton v. Carnation Co., supra, 215 Cal.App.3d at page 165, quotes Tejada for the same rule.
II
The Law and Motion Court's Diligence Analysis Was Informed and Reasonable
Plaintiffs argue the law and motion court erred when it dismissed their action based on their counsel's "reasonable but mistaken interpretation of the court's COVID orders" and that the law and motion court "misunderstood the tolling mandate in section 583.340" and failed to consider the plaintiffs' claim that the court's closure for civil trials made it impossible, impracticable, or futile to bring the case to trial. They argue the law and motion court relied on the presiding judge's findings to the extent that it misunderstood its own discretion to reach a different determination of diligence. This argument points to the references to the earlier order by the law and motion court, and that court's observation that "[t]here are no facts presented by Plaintiff relevant to the instant motion that did not yet exist at the time of the motion for preference. Thus, this court has no basis on which to reconsider the Presiding Judge's order, notwithstanding Code of Civil Procedure section 583.340."
Plaintiffs point out that the presiding judge did not need to decide impossibility, impracticality, or futility, as the application of section 583.340, subdivision (c), was not before it. In contrast, in ruling on the motion to dismiss, the law and motion judge "first had to determine whether it was 'impossible, impracticable, or futile' for plaintiffs to bring their case 'to trial' while" the court was closed for civil trials. After making that finding, plaintiffs argue, the court could exclude the time the court was closed for civil trials or examine all the circumstances to see if plaintiffs were reasonably diligent. However, they argue, "[t]he court had no discretion to dismiss the case based on plaintiffs' failure to file their motion for preference earlier."
Additionally, plaintiffs argue that even if the court would have required plaintiffs to show reasonable diligence before it applied the tolling exception, it still needed to look at all the circumstances, and that look necessitated consideration of the impact 139-days' worth of closures had on their ability to prosecute their action. They argue that in dismissing the case due to plaintiffs' counsel's mistaken interpretation of COVID orders-where counsel believed it could not file a motion for preference prior to February 2021-the law and motion judge failed to actually consider if it was impossible, impracticable, or futile to bring the case trial.
Plaintiffs conclude that "[n]othing in the five-year statute or the common law permits a court to dismiss an action for failure to prosecute based on counsel's mistaken-and reasonable-belief that he could not file a motion for preference earlier."
Plaintiffs continue this line of argument in their reply, arguing the law and motion judge "incorrectly thought the Presiding Judge's order and prior finding that plaintiffs lacked diligence prevented her from making any independent findings on the impossibility of bringing the action to trial and whether the tolling exception extended the statutory time frame for bringing the action." They say the law and motion judge's failure to make a finding as to if it was impossible to bring the case to trial while the court was closed and failure to decide if a tolling exception applied based on all the facts in this case was an abuse of discretion.
This line of argument ignores the context of the law and motion judge's ruling, the line of cases that address the impact of court room unavailability, and the long-recognized purpose behind the exception section 583.340, subdivision (c) recognizes. As we next explain, the record reveals the law and motion court understood its discretion and the need to make the required findings, as it had the parties' briefing and argument, as well as all the relevant facts, before it. That court also had the prior observations, findings, and rulings of the presiding judge as to a substantial portion of the required diligence before it, that it was entitled to consider, follow, and adopt in whole or in part. Under these circumstances, we review the findings of fact for substantial evidence and the conclusions of law de novo, and the court's application of the law to the facts is reversible only if arbitrary and capricious. (See Gaines, supra, 62 Cal.4th at p. 1100.) We conclude the law and motion court's conclusions were informed and reasonable.
First, we note the context of the law and motion judge's ruling. In the trial court, the plaintiffs did not confine their impossibility argument to the 139-day period between the issuance on the March 17, 2020, order and the August 3, 2020, order. In their briefs, they mistakenly argued they were precluded from bringing a motion for preference until February 9, 2021. They claimed, in the face of courtroom closures, they had diligently pursued the first relief available to avoid missing the section 583.310 deadline. Then, at the hearing on the motion, they argued section 583.340, subdivision (c), applied during the time the court was closed for civil trials due to COVID. Thus, the law and motion judge had every reason to both (1) consider plaintiffs' actions during the period of time after the initial 139-day period in her diligence inquiry; and (2) point out the fact that plaintiffs' argument that they had been diligent but could not file a motion to secure a trial date before February 9, 2021, was based on their own mistaken readings of the trial court's COVID orders-i.e., that in these circumstances plaintiffs, in fact, had not been diligent in their efforts to secure a timely trial date when there were tools available for them to do so. In the framing of their argument, the plaintiffs invited the law and motion judge to consider these facts. The court's observation that there were "no facts" such that it felt it necessary to "reconsider" the previous ruling made as to lack of diligence is better understood in this context as agreement with the related observations and findings of a colleague hearing the same facts than as an expression of a lack of discretion to decide differently.
We note here that according to the Agreed Statement in Lieu of Partial Reporters Transcription filed in this appeal, plaintiffs' counsel argued the relevant time-period was 18 months. Plaintiffs have not explained how the 18-month period was calculated.
Next, given this context, we look at the ruling in light of case law that considers the diligence inquiry in instances of courtroom unavailability. A repeated theme among cases that have tolled the five-year deadline due to courtroom unavailability-be that in cases where the case was continued, trailed, or awaiting reassignment due to a section 170.6 challenge-is that the continuance that tolled the eventual deadline occurred at a time the parties were ready and set to go to trial. (See Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 400-402 [allowing tolling for an aggregate period of dates when the court continued the trial on its own motion due to courtroom unavailability]; Rose v. Scott (1991) 233 Cal.App.3d 537, 540 &542 (Rose) [giving plaintiffs' 105-days' worth of extensions for a period of time the trial was continued due to courtroom unavailability, even though after that period the plaintiffs sought to amend their complaint and waited two years to do so]; Lazelle v. Lovelady (1985) 171 Cal.App.3d 34, 37-38 [finding a case was tolled for a period when there were no courts available, and the case trailed on a day-to-day basis]; Wardv. Levin (1984) 161 Cal.App.3d 1026, 1034-1035 [on the deadline to bring a case to trial, the trial was trailed on the court's own motion until a date when a courtroom would become available]; Breacher v. Breacher (1983) 141 Cal.App.3d 89, 91 [Trial was originally set for roughly 10 days before the deadline to after the stipulation pursuant to an agreement of the parties. On the agreed upon new date, the case was put on beeper call due to the court's congested calendar]; Bennett v. Bennett Cement Contractors, Inc. (1981) 125 Cal.App.3d 673, 676-678 [Plaintiff secured a trial date almost 15 months before the expiration of the time to bring the case to trial. The trial was then continued first on defense counsel's motion and then on the court's own motion due to the unavailability of courtrooms]; Goers v. Superior Court of Ventura County (1976) 57 Cal.App.3d 72, 73-74 [Parties appeared for trial and no courtroom was available. The case then trailed past the five-year deadline]; Nail v. Osterholm (1970) 13 Cal.App.3d 682, 685-687 [parties appeared for trial, but it was delayed pending the assignment of a new judge when a party exercised a section 170.6 challenge].)
Indeed, in Chin, supra, 235 Cal.App.3d at page 1478, the court, in identifying the period of impossibility stated, "a court-ordered continuance when both sides announce 'ready' and no courtroom is available is to be treated as a discrete tolling event." And in favoring the approach taken by the Chin court over the one taken by the De Santiago court, the Seto lead opinion writes, "excluding from the five-year term any periods in which the parties cannot practicably bring an action to trial, whether because of illnesses so extended as to make litigation impracticable (see Sierra [], supra, 217 Cal.App.3d at p. 473), settlements, or courtroom unavailability when both parties have called ready, would certainly extend the time for parties to try their cases, but it would not create havoc." (Seto, supra, 86 Cal.App.5th at p. 100, italics added.)
Plaintiffs cite Rose, supra, 233 Cal.App.3d at page 542 for the proposition that impossibility occurs when there is no courtroom available. In Rose, the court of appeal gave plaintiffs tolling credit for a period in which their trial date had been continued due to courtroom unavailability, even though shortly before a trial date they moved to amend their complaint and did not file the amended complaint for two years. (Id. at pp. 539-540, 542.) But, again, when the period of potential impossibility due to courtroom unavailability began in Rose the plaintiffs had a trial date. (See id. at p. 541.)
Here, when the trial court temporarily suspended hearings and trials due to COVID, plaintiffs had not announced they were "ready" to go to trial. (See Chin, supra, 235 Cal.App.3d at p. 1478; Seto, supra, 86 Cal.App.5th at p. 100.) The circumstances of this particular case-and the reasonable diligence that plaintiffs might have been expected to engage in to overcome obstacles to moving the case forward-were not the same as the circumstances faced and the diligence expected of a party that had already been assigned a trial date. Given the purpose of the statutes is "to prevent avoidable delay" (Gaines, supra, 62 Cal.4th at p. 1102) it was reasonable for the trial court to conclude that plaintiffs who wanted tolling credit during that period needed to avail themselves of the opportunity to secure a trial date (to put themselves in the queue for a trial once the queue began to move again, if you will) or similar relief if they were nearing the end of their time to bring the case to trial under section 583.310 in order to demonstrate reasonable diligence. Instead, here, by the time he filed a motion to secure a trial date, plaintiffs' counsel had known for nine to 10 months that the deadline to bring the case to trial was approaching, and he had possessed the opportunity to bring a motion to secure a date for six months before he brought the motion. The excuse he offered for not bringing the motion earlier was his mistaken reading of the August 3, 2020, order. Relying on this mistake was not diligent.
In this context, where plaintiffs had asked the trial court to treat the period the court was closed for civil trials as a period of impossibility, even though defendants had not yet called "ready" for trial at the time that closure began, the trial court properly factored into its analysis that plaintiffs did not bring a motion to secure a trial date during the time the court was not hearing civil trials. This is so because a diligent plaintiff who was nearing the deadline but did not yet have a trial date had tools available to put their case in line for a courtroom once they became available. (See Howard v. Thrifty Drug &Discount Stores, supra, 10 Cal.4th at p. 438 ["The determination whether it was 'impossible, impracticable, or futile' to bring a case to trial within a given time period is generally fact specific, depending on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles"].) In considering the impact of plaintiffs' failure to bring a motion when they could, the court was not just focusing on what happened after the period of purported impossibility. It was looking at the failure to bring a motion during the time plaintiffs claimed it was impossible to move forward.
We also find the trial court's finding regarding a lack of diligence, in this context, where the parties had not called "ready" at the time the March 17, 2020, order was issued, was within its discretion with respect to the 139 days between March 17, 2020, and August 3, 2020.
In considering the period between March 17, 2020, and August 3, 2020, it is helpful to look at what the 1984 changes to the statutes did not overrule from case law regarding what must be shown to toll the deadline to bring a case to trial due to impossibility, impracticability, or futility. As our Supreme Court has stated, in adopting the new statutes in 1984, "[t]he Legislature and commission intended largely to codify, not supplant, the quasi-common law developments in this area that had evolved over the preceding decades. (See Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1366 (19831984 Reg. Sess.) as amended July 3, 1984, p. 3 [' "The major purpose of the bill is to clarify ambiguities in the law, to bring the statutes into conformity with case law interpreting them, and to reconcile discrepancies in statutes and cases." ']; Revised Recommendation Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com. Rep.[, supra, at] p. 916 ['The statutes should accurately state the law. The proposed law codifies the significant case law rules governing dismissal for lack of prosecution ....'].) Accordingly, in addition to the statutory language, a substantial body of case law guides our analysis." (Gaines, supra, 62 Cal.4th at p. 1090.) Thus, while, as Seto demonstrates, the commission's notes may show an intent to overrule cases that would not apply impossibility, impracticability, or futility tolling when a reasonable time to bring the case to trial remained after a period of impossibility-and the import of that decision has been the focus of some debate-those notes also demonstrate that other factors that were considered in pre-1984 decisions remain unequivocally viable.
As such, we still consider, as our Supreme Court directed us to in Moran, supra, 35 Cal.3d at page 238, "all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves," and requiring reasonable diligence in the prosecution of a case remains central to this inquiry (see also Gaines, supra, 62 Cal.4th at p. 1100; Bruns, supra, 51 Cal.4th at p. 730).
In applying the "reasonable diligence" standard to determine if a plaintiff's conduct warranted the application of an impossibility exception, the Moran court looked at the plaintiff's actions before the purported period of impossibility. (Moran, supra, 35 Cal.3d at pp. 239-240.)
Here, the presiding judge noted that prior to the COVID closures, the last action that had been taken in this action in the trial court was in October 2018, and he found this lack of action showed a lack of diligence on plaintiffs' part. Thus, when the 139-day period began, plaintiffs were not ready to go to trial, in part, due to their own lack of diligence. Then, having not yet secured a trial date, during the 139-day period counsel sent a couple of e-mails to defense counsel in April 2020 trying to secure an agreement about trial dates, and relied on a statement from defense counsel that he needed to check with an adjuster but was "sure [they could] stipulate to a trial date within" the April 2, 2021, deadline that Emergency Rule 10 established. The record does not show an instance when plaintiffs' counsel followed up with defense counsel to obtain confirmation-e.g., by sending a proposed stipulation or even to secure written confirmation that the adjuster had approved the idea of a stipulation to set a trial date- until August 2020. It was reasonable for the presiding judge to find, and for the law and motion judge to agree, that this level of casualness and delay on the part of plaintiffs' counsel demonstrated a lack of diligence under the circumstances. (See General Ins. Co. v. Superior Court of Los Angeles County (1966) 245 Cal.App.2d 366, 369.) When the March 17, 2020, order was issued, plaintiffs had not secured a trial date or even placed themselves in the trial setting process. The court could reasonably find they were in this position due to their lack of pre-COVID diligence. Then, after March 17, 2020, they did not take the efforts they needed to move the case towards securing a trial and put it at the front of the line once the court was hearing civil trials again. The law and motion court acted within its discretion to the extent it concluded, based on the presiding judge's analysis as set forth above, that the plaintiffs did not meet the diligence requirement during the 139-day period between March 17, 2020, and August 3, 2020.
We find a portion of the analysis in Jordan, supra, 182 Cal.App.4th at page 1421, instructive when considering the question of whether the trial court abused its discretion when it made its diligence findings. In Jordan, in addition to applying the Tamburina factors to find the plaintiffs had not satisfied their diligence obligations when they failed to take action to bring their case to trial in the last six-months before a deadline, the court also considered an argument that moratoriums on civil trials had created periods of impossibility years before the deadline. (Jordan, supra, at pp. 1421-1422.) With respect to those moratoriums, the court concluded they did not interfere with plaintiffs prosecuting their case because plaintiffs were not ready for trial when the moratoriums occurred. (Id. at p. 1421.) The court also considered periods where plaintiffs had argued there were de facto moratoriums, and it noted that cases approaching the five-year deadline were getting tried during those periods. (Id. at p. 1422.)
Here, as with the earlier moratoriums in Jordan, plaintiffs were not ready to go to trial when the March 17, 2020, order came out. The trial court acted within its discretion in finding it was their own lack of diligence that placed plaintiffs in that position on March 17, 2020. The court also acted within its discretion to the extent it found that during the 139-day period between March 17, 2020, and August 3, 2020, plaintiffs did not diligently act to get their case to the point where it would be ready and in position to secure a trial date once the court was ready to assign trial dates. Given plaintiffs' position on March 17, 2020, they were not in a position where all they needed to move forward was a courtroom during those 139-days; they had other work they could do to make progress and that work did not require a courtroom. The court also acted well within its discretion when analyzing the dates between August 3, 2020, and February 9, 2021: once the Presiding Justice's department opened to the full scope of Sacramento Superior Court Local Rule 1.05 hearings on August 3, 2020, plaintiffs did not file a motion for preference or otherwise to set a date for a trial. This lack of action, which plaintiffs admit was based on a mistake, demonstrated a continuing lack of diligence on their part. To the extent they might have been able to get their case to the point where they called "ready" during COVID closures, Emergency Rule 10(a), gave them an extension that would protect them from the loss of time due to COVID closures, and they squandered the opportunity to take advantage of that extension.
Below, plaintiffs argued in the law and motion department that they had diligently pursued their case given the circumstances during the dates the court was closed for civil trials. The law and motion court acted within its discretion in relying in large part on the presiding judge's analysis of diligence to conclude plaintiffs failed to demonstrate a sufficient level of diligence to claim tolling under section 583.340, subdivision (c). To the extent the court's diligence analysis involved looking at plaintiffs' actions after August 3, 2020, that was entirely proper and reasonably decided on this record.
DISPOSITION
We affirm the judgment. Respondent shall recover her costs on appeal under California Rules of Court, rule 8.278(a).
We concur: EARL, P.J., DUARTE, J.