Opinion
C048999
12-6-2006
THOMAS EUGENE MOORE, Plaintiff and Appellant, v. SACRAMENTO REGIONAL TRANSIT DISTRICT et al., Defendants and Respondents.
Plaintiff Thomas Eugene Moore appeals from a judgment following the granting of a motion by defendant Sacramento Regional Transit District (SACRT) for mandatory dismissal for failure to prosecute pursuant to Code of Civil Procedure section 583.360. Moore argues that the judgment should be reversed because: (1) the trial court erroneously refused to consider Moores written opposition; and (2) Moores incarceration made it impossible, impracticable or futile for him to have brought the case to trial within the statutory period of five years. We shall affirm the judgment.
Undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Activity During the First Four Years of the Action
Moore was arrested on January 25, 1999, and has remained incarcerated at all times during the course of this lawsuit.
On August 18, 1999, Moore filed a negligence complaint against SACRT and others, seeking damages for injuries he suffered during an altercation with another passenger aboard a SACRT bus. On August 30, 2000, the court "order[ed] th[e] matter exempt from the ACT [Program] rules."
"ACT" is an acronym for Accelerated Civil Trial Program.
On September 17, 2001, the defendants filed a demurrer and motion to strike the second amended complaint. On October 15, 2001, the court sustained the demurrer as to the first and third causes of action, granted the motion to strike, and ordered Moore to file a third amended complaint containing only the second cause of action (for negligence), and naming SACRT as the sole defendant.
Moores third amended complaint was filed on October 15, 2001, and answered by SACRT on November 27, 2001.
From January of 2002 until February of 2003, Moore served several discovery requests. He also brought and opposed motions related to discovery. The last ruling on a motion brought by either party was made on July 7, 2003.
On August 18, 2003, Moore subpoenaed the records of the Sacramento County Sheriffs Department. The Sheriff provided the records on June 22, 2004.
Activity During the Last Year of the Action
By minute order dated February 26, 2004, the court restored the case to the Case Management Program and set a case management conference for February 24, 2005, well beyond the statutory five-year time limit.
On August 10, 2004 (all further calendar references are to the year 2004 unless otherwise specified), eight days before the expiration of the statutory five-year period, Moore filed a "Notification of Meet and Confer," in which he stated that his "status . . . as a pro se inmate does not permit the parties to engage in a meet and confer," and that "a joint case management statement is also impracticable at this time." The notice makes no mention of the impending statutory deadline. On August 15, Moore provided a supplemental response to a request by SACRT for production of documents.
On August 18, the statutory time limit of five years expired. The parties had not entered into a written stipulation or other agreement to extend the five-year period.
On September 17, SACRT filed a motion for mandatory dismissal for failure to prosecute. On October 6, Moores opposition to the motion was mailed to the court by prison officials. However, the opposition was not filed until October 18.
By minute order dated October 18, the court recited that SACRTs motion to dismiss was unopposed, and granted it. Judgment of dismissal of Moores lawsuit was entered on December 23. Moore timely filed a notice of appeal.
DISCUSSION
I. Applicable Principles
"An action shall be brought to trial within five years after the action is commenced against the defendant." (§ 583.310.) If the action is not brought to trial within this statutory period, dismissal on motion of the court or of the defendant is mandatory unless the plaintiff can prove that a statutory excuse or exception applies. (§ 583.360.) However, the five-year period may be extended if the court determines that it has been "impossible, impracticable, or futile" for the plaintiff to bring the action to trial within the statutory time restrictions. (§ 583.340, subd. (c).)
"The determination whether it was `impossible, impracticable, or futile to bring a case to trial within a given time period is generally fact specific." (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.) Ordinarily, we review the trial courts ruling on whether prosecution within five years was impossible, impracticable or futile for abuse of discretion. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271.) However, the plaintiff "still has an obligation to make some showing upon which the court can exercise its discretion," and in the absence of such a showing, dismissal is mandatory. (Oskooi v. Fountain Valley Regional Hospital (1996) 42 Cal.App.4th 233, 241.)
II. Failure to Consider Moores Opposition
Moore initially claims that the trial court erred in dismissing his case without considering his opposition to SACRTs motion, given the fact that he delivered it to prison officials 12 days prior to the hearing on the matter.
The record shows that SACRT filed its motion to dismiss on September 17. Moore asserts without contradiction that he delivered his opposition to Correctional Officer Diaz, Jr., at Salinas Valley State Prison on October 6, and a copy of the prisons outgoing legal mail log attached to his brief indicates it was mailed to the superior court the same day.
As it turned out, Moores opposition was not filed with the court until October 19. That date was later changed by the clerks handwritten notation to October 18, the same day that the court issued a minute order stating that SACRTs "unopposed" motion to dismiss was granted. This sequence indicates that the court did not review Moores opposition before granting the dismissal motion.
This court in Moore v. Twomey (2004) 120 Cal.App.4th 910, 912, 918 (Twomey) applied the "prison-delivery rule" set forth in Houston v. Lack (1988) 487 U.S. 266 (Houston) to hold that a complaint should be deemed filed as of the date a prisoner properly delivers it to a prison official for mailing.
"In Houston, supra, 487 U.S. 266 , the Supreme Court held that a notice of appeal by a pro se prisoner is filed when it is delivered to prison authorities for forwarding to the district court rather than when it is filed with the clerk of court." (Twomey, supra, 120 Cal.App.4th at p. 914.) The rule in Houston is based on "`the inherent disadvantage suffered by pro se prisoners" in regards to controlling and monitoring the litigation process compared to the average (unincarcerated) individual. (Twomey, at p. 916, quoting Sulik v. Taney County, Mo. (8th Cir. 2003) 316 F.3d 813, 815.)
In In re Jordan (1992) 4 Cal.4th 116, the California Supreme Court extended the rule to the filing of notices of appeal. (Id. at pp. 119, 130.) This holding was later codified in California Rules of Court, rule 30.1(d).
By logical extension, it appears that the prison-delivery rule should also apply to an important pleading such as an opposition to a motion to dismiss. Therefore, we assume, for purposes of this appeal, that Moores opposition was timely and, under Twomey should have been considered by the trial court.
Nevertheless, as we shall explain, the error was harmless because Moores opposition presented no good cause for exempting the case from the mandatory five-year dismissal, leaving the trial court no discretion but to grant SACRTs motion.
III. Impossible, Impracticable or Futile Exception
Section 583.340 states, in pertinent part, "[i]n computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] . . . [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile."
Moore relies on this exception to argue that the trial court erred in granting SACRTs motion to dismiss. He repeats the averment in his opposition that he "has been diligent in prosecuting this case, [but] . . . has been incarcerated in a state prison which impedes [his] ability to litigate this case to trial within [five] years." Our review of the record demonstrates that Moores opposition was insufficient to trigger the exception for three reasons.
A. Lack of Diligence
"`The critical factor [in determining what is impossible, impracticable or futile] is whether the plaintiff exercised reasonable diligence in prosecuting [his] case." (Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502 (Moss).) "[A] determination of due diligence requires an examination of the circumstances existing throughout the five-year period." (Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1534.) The burden is on the plaintiff to show that "every reasonable effort [was made] to bring a case to trial within five years, even during the last month of its statutory life." (Id. at p. 1532.)
Moore failed to carry that burden. While the record indicates Moore exercised some diligence in the first four years after he filed his lawsuit, there was virtually no activity in the final 12 months. Diligence for only four years will not permit a plaintiff to bring himself within the impracticability exception. (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340.)
In his opposition, Moore claimed he was impeded by a 10-month delay in obtaining records from the Sheriffs office. However, "delays encountered in discovery are part of the `normal delays involved in prosecuting lawsuits and do not excuse failure to bring a case to trial within the five-year limit." (Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1016; see also Standard Oil Co. v. Superior Court (1976) 61 Cal.App.3d 852, 857 ["it has never been held or even hinted that time stands still while the parties are going through the necessary motions of getting a case ready for trial"].)
The concept of reasonable diligence creates an affirmative duty for the plaintiff to do everything reasonably within his power to bring his or her case to trial within five years. (Moss, supra, 47 Cal.App.4th at p. 502.) Here, Moore failed to move the case forward from August 18, 2003, until August 10, 2004, almost a full year. As a matter of law, he failed to exercise reasonable diligence in prosecuting his case.
B. No Causal Relationship Between Incarceration and Delay
Moore also reiterates the claim in his opposition that his incarceration made it impractical to bring his case to trial within five years. However, the record shows that his incarceration had no effect on his ability to prosecute the case. During the first four years of the life of the case Moore was able to successfully file numerous court documents, including motions to amend, motions to strike, motions for extension of time, motions to compel and modify, motions for reconsideration, responses and oppositions to motions filed by SACRT, notices of nonappearance, and status conference statements. Only in the last year of the case did Moores prosecutorial diligence evaporate.
"The text of section 583.340 impels the view that there must be a causal connection between the circumstance upon which plaintiff relies and the failure to satisfy the five-year requirement." (Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 473, italics added.) Because his incarceration was not a cause of the delay in bringing the case to trial, Moore cannot rely upon his prison status to toll the five-year statute.
C. Failure to Specially Set the Case for Trial
A plaintiff has a duty "`"to call to the attention of the court the necessity for setting the trial for a time within the period fixed by [the statute]."" (Hill v. Bingham (1986) 181 Cal.App.3d 1, 10.) Furthermore, failure to specially set the matter for trial "will preclude a later claim of impossibility or impracticability." (Tejada v. Blas, supra, 196 Cal.App.3d at p. 1340; Brown v. Superior Court (1976) 62 Cal.App.3d 197, 200 [writ directing trial court to grant five-year dismissal against plaintiff who was incarcerated for three years, but made no attempt to specially set case for trial].)
In February of 2004, six months prior to the expiration of the five-year period, the trial court set a date for a case management conference six months after the statutory deadline was set to expire. Six months was ample time for Moore to have filed a motion to advance the case and obtain a trial date that complied with statutory time restrictions. (See Weeks v. Roberts (1968) 68 Cal.2d 802, 807 [28 days], disapproved on a different point in Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 348-349; State of California v. Superior Court (1979) 98 Cal.App.3d 643, 650 [six and one-half months]; Vogelsang v. Owl Trucking Co. (1974) 40 Cal.App.3d 1068, 1071 [46 days].) However, he made no effort to do so.
Moores complete failure to take any steps to advance the case for trial before expiration of the statute precludes him from raising the impracticability defense. (State of California v. Superior Court, supra, 98 Cal.App.3d at pp. 649-650.) The fact that Moore may not have been aware of the deadline makes no difference. "`[[P]laintiffs] ignorance of the status of the case . . . cannot be equated with "impossibility" or "futility."" (Hill v. Bingham, supra, 181 Cal.App.3d at p. 12.)
D. Conclusion
Our review of the opposition and the file in this case satisfies us that, even had the trial court considered Moores opposition, it had no discretion but to grant SACRTs motion to dismiss under section 583.360.
IV. Other Claims
In his reply brief, Moore asserts that (1) after the opening brief was filed, California Department of Corrections and Rehabilitation officials confiscated his legal papers and have failed to return them, and (2) the respondents brief did not meet the filing deadline.
These claims are clearly collateral to and have no bearing on the issue of whether the judgment appealed from should be reversed. For this reason, we have no occasion to reach them.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
ROBIE, J.