Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. SL010192
Lambden, J.
This is the third appeal related to Nikko Blunt’s lawsuit, which alleged that she suffered an injury from a machine when undergoing physical therapy for her right knee. The first appeal concerned the lower court’s refusal to vacate a default judgment obtained by Blunt against Rehabilicare, Inc. (Rehabilicare). We reversed, concluding that Blunt had never filed a valid pleading against Rehabilicare. (Blunt v. Rehabilicare, Inc. (Blunt I), A094346 and A095326 (filed May 10, 2002).) In the second appeal, we affirmed the lower court’s order denying Blunt’s request to set aside the dismissal order involving defendants other than Rehabilicare. (Blunt v. Rehabilicare, Inc. (Blunt II), A102481 (filed March 24, 2004).) Now, more than six years after filing our decision in Blunt I and more than nine years after Blunt filed her original pleading in this lawsuit, Blunt is appealing from the lower court’s order dismissing her lawsuit against Rehabilicare for failure to prosecute the action within five years as mandated by Code of Civil Procedure sections 583.310 and 583.360. We agree with the lower court’s ruling and affirm the judgment.
All further unspecified code sections refer to the Code of Civil Procedure.
BACKGROUND
Blunt I
On February 27, 1998, Blunt filed a complaint for negligence in superior court against Solano Sports and Industrial Physical Therapy (Solano Sports), a physical therapy rehabilitation center, and Michael Kassis, the director of physical therapy at Solano Sports. Blunt alleged that she was being treated for a right knee injury and post surgical rehabilitation at the facility when she suffered an injury while using a high voltage pulse current (HVPC) device. She alleged that Solano Sports staff set the device at the incorrect voltage and, consequently, a strong electrical current ran through her right leg causing her leg to be numb for a few days after using the device.
On April 13, 1998, Solano Sports and Kassis answered the complaint and filed a cross-complaint against Therakinetics, Inc. (Therakinetics), the party alleged to have manufactured the HVPC device. Therakinetics filed a demurrer to the cross-complaint. Solano Sports and Kassis filed a first amended cross-complaint, which Therakinetics answered.
According to a minute order dated August 11, 1998, one of the defendants filed a demurrer against Blunt’s pleading and, at a hearing on the demurrer and a status conference, Judge William C. Harrison sustained the demurrer against Blunt’s original complaint and granted Blunt leave to file and serve a properly filed first amended complaint within 20 days. The minute order, which the court read into the record at the hearing, stated: “Although [Blunt] attempted to file a first amended complaint on August 4, an answer had already been filed by some of the other [defendants]. And therefore [Blunt] did not have the right to file that first amended complaint without prior court order. . . .” The record contained no evidence that Blunt ever filed a first amended complaint after the hearing on August 11, 1998.
On August 14, 1998, Solano Sports and Kassis and, separately, Therakinetics filed answers to Blunt’s first amended complaint and the parties continued to litigate the case.
The following year, Blunt apparently determined that Rehabilicare was the manufacturer of the HVPC device. In July 1999, Blunt moved to file an “Amendment to complaint” to name Rehabilicare as Doe 2. The court granted leave to file the amendment to the complaint.
On October 13, 1999, counsel for Blunt wrote CT Corporation, the agent for service of process for Rehabilicare, informing it that it was a defendant and that it was being served with copies of the summons, complaint, civil cover sheet, amendment to complaint to name Doe defendant, and the form for the status conference report. The letter also disclosed the date of the next status conference. CT Corporation was served with the original complaint and Doe amendment to the complaint on November 2, 1999.
Blunt filed a status report for the court hearing on December 8, 1999. Her report declared that she had served Rehabilicare with the summons and complaint, but no representative of Rehabilicare had contacted her. Blunt stated that she had filed a default, and that she anticipated a motion to set aside the default.
On December 20, 1999, Blunt prepared a statement of damages, which she filed on January 6, 2000. The proof of service indicated that it was served on CT Corporation. In her statement of damages, she alleged she had $1,064 in medical expenses. Blunt alleged emotional distress damages in the sum of one million dollars, although she never alleged any emotional distress claim or prayer for emotional distress damages in her first amended complaint.
On December 22, 1999, Blunt requested a clerk’s default, and the clerk responded that it could not be entered as requested. On the document denying the request, the clerk made the following notation: “Can you please send the court copy of the endorsed filed copy of your 1st amended complaint filed 8-4-98[?]”
In May of 2000, Blunt, Therakinetics, and Solano Sports and Kassis appeared for an arbitration before Justice J. Clinton Peterson, Retired. Justice Peterson stated that he did not feel there was sufficient evidence presented to him to award an arbitration judgment against Solano Sports, Kassis, and Therakinetics and that he intended to award a defense verdict. According to the declaration of counsel for Solano Sports, there was a discussion about the absence of Rehabilicare at the arbitration hearing. Counsel for Blunt stated that he intended to proceed with a prove-up hearing against Rehabilicare and asked Justice Peterson to contact the superior court to request that further proceedings against Solano Sports, Kassis, and Therakinetics be delayed sufficiently to permit the prove-up hearing to proceed. Blunt’s counsel told Justice Peterson of his intent to dismiss Solano Sports, Kassis, and Therakinetics from the litigation once he perfected the default and prove-up hearing against Rehabilicare.
On January 26, 2000, Blunt filed an amended amendment to the first amended complaint to name Doe defendant. Judge Franklin R. Taft issued an order granting Blunt permission to file the amendment to the first amended complaint.
Counsel for Blunt wrote a letter dated January 31, 2000 to CT Corporation. The letter stated that enclosed were copies of the summons, first amended complaint, and the amendment to the complaint to name Doe defendant. The letter also set forth the date and location of the arbitration hearing. The foregoing pleadings were personally served on CT Corporation on February 7, 2000.
On February 13, 2001, counsel for Rehabilicare traveled from his office in Costa Mesa to the Solano County Superior Court. He searched the court’s file and could not find a copy of a first amended complaint. He had court personnel provide him with a copy of the docket report for this action, which indicated that Blunt never filed a first amended complaint after the August 11, 1998 hearing.
Blunt again requested an entry of default and court judgment, which the clerk entered in the amount of $2,303,064 against Rehabilicare on March 9, 2000. The request for default requested that the default be entered against Rehabilicare on the “Amended Amendment to the First Amended Complaint and the First Amended Complaint” filed on August 4, 1998 and January 26, 2000. CT Corporation was served with the foregoing documents.
On July 5, 2000, Blunt filed a status conference report. In an attachment to the report, Blunt stated the following: “A default was entered against Defendant Rehabilicare on March 9, 2000. At this time, Plaintiff is waiting for the statutory period (6 months) for Defendant to Motion the Court for a set aside order. Immediately after the six (6) month [sic] runs, Plaintiff will set the matter for hearing on damages. Then pursue the collection of same. [Sic] It is at this time, I expect Rehabilicare to finally respond. Depending on the outcome, the judgment will either stand or be set aside. If it is set aside, Plaintiff wishes to proceed against all the Defendant’s. [Sic] If it is not set aside, the matter will most likely go away. [¶] Therefore, in the interest of all parties, Plaintiff is requesting that this matter be re-designated so that a trial date can be set far enough in the future to accommodate the circumstances referred to above.”
The court held a prove-up hearing on December 14, 2000.
On January 8, 2001, counsel for Blunt wrote a letter to CT Corporation informing it that Blunt had brought an ex parte motion on January 11 to correct Rehabilicare’s name to “indicate its corporate status.” The court granted retroactively the ex parte motion naming Rehabilicare, Inc. as a Doe defendant to the first amended complaint. Also on this date, the court entered a default judgment against Rehabilicare in the amount of $2,303,064, plus costs and interest on judgment. On January 12, 2001, Blunt mailed notice of entry of default to CT Corporation.
On January 16, 2001, Blunt wrote a letter directly to Rehabilicare. The letter informed Rehabilicare of the judgment and demanded payment. The letter also stated that the court, by its own motion, had set the date of February 6, 2001, as the date to dismiss the remaining defendants.
On February 6, 2001, Judge Franklin R. Taft held a hearing on his own motion to dismiss Solano Sports, Kassis, and Therakinetics. Counsel for Blunt argued that a dismissal would be improper until “the judgment is satisfied by the one granted by this Court.” The court responded: “No, that wasn’t the purpose of this. I mean, what if they never satisfy it? Are you expecting the file to be kept open indefinitely?” The court further explained: “I mean, the whole purpose of this was to continue it six months so that you could take your judgment and not have it set aside. Now you’re telling me you want to throw the whole thing into abeyance.” The court noted that there was now a judgment by default against Rehabilicare and the court explained that it understood that Solano Sports, Kassis, and Therakinetics would be dismissed once there was a default judgment and the six months to set aside the default had run. The court clarified that now that the judgment and six months had occurred, “[n]ow you want something else. [¶] I talked to, I believe it was Judge Peterson that either arbitrated or mediated this. I’ve been in contact with him. That was the representations that were made to him to continue it.” The court further declared that it did not like “this game-playing that’s going on. . . .”
The court proceeded to ask counsel for Blunt what would happen if the judgment against Rehabilicare was not any good because “you’ve got a defective service or something like that.” Counsel for Blunt responded that he was concerned about that, and the court asked why that was the problem of Solano Sports, Kassis, and Therakinetics. The court noted that the case had gone to arbitration and the entire agreement was to wait six months after the default and that was what counsel for Blunt had requested. After further discussion, counsel for Blunt stated that he was going “to leave this up to the Court’s discretion.” The court responded that it was going to dismiss the matter as to Solano Sports, Kassis, and Therakinetics on the court’s own motion.
The court order filed February 9, 2001, dismissed Solano Sports, Kassis, and Therakinetics pursuant to California Rules of Court, rule 225.
On February 20, Rehabilicare filed a motion to vacate the default judgment and an ex parte application to shorten time for hearing this motion. Rehabilicare asserted that the deadline for filing a notice of appeal on the default judgment would expire before the motion to vacate could be heard as a regularly noticed motion. The court denied the ex parte application.
On March 7, 2001, Rehabilicare filed a notice of appeal from the default judgment.
The court heard the motion to vacate the default judgment on March 15, 2001 and April 25, 2001. The court denied the motion, finding that it had no jurisdiction to rule because Rehabilicare had filed a notice of appeal from the judgment. Rehabilicare filed a timely notice of appeal from the order denying the motion to vacate the default judgment.
Upon Rehabilicare’s motion, we consolidated both of Rehabilicare’s appeals. In our unpublished opinion, Blunt I, we reversed. We concluded that Blunt never filed a first amended complaint as to Rehabilicare and there was no “action pending between Blunt and Rehabilicare, and the court had no jurisdiction to rule on a non-existent pleading.” (Blunt I, p. 6.)
Blunt II
In December 2002, Blunt filed a motion to set aside the dismissal order pertaining to Solano Sports, Kassis, and Therakinetics. In opposition to Blunt’s motion, Therakinetics specially appeared and argued that Blunt’s motion was untimely; Solano Sports and Kassis also opposed the motion. In addition, pursuant to section 418.10, subdivision (a)(1), Therakinetics filed a motion to quash Blunt’s motion to set aside the dismissal order.
On February 19, 2003, the trial court issued a tentative ruling. It granted Therakinetics’s motion to quash Blunt’s motion to set aside the order dismissing Solano Sports, Kassis, and Therakinetics, on the basis that the court no longer had jurisdiction over them. Also for lack of jurisdiction, the tentative ruling denied Blunt’s motion to set aside the order of dismissal.
The following day, at the hearing on the foregoing matters, the trial court noted that no party had challenged the tentative ruling and therefore the tentative ruling was confirmed and it would hear no oral argument. On April 11, 2003, the court issued an order granting Therakinetics motion to quash Blunt’s motion to set aside the dismissal orders.
Blunt appealed the trial court’s denial of her motion to set aside the order of dismissal. We concluded that we had no jurisdiction over the appeal and dismissed the appeal in Blunt II.
The Current Appeal
While the appeal in Blunt II was pending, Blunt on February 26, 2003, moved for leave to file an amended complaint against Rehabilicare. Rehabilicare argued that the statute of limitations barred the action. The trial court continued the hearing date until after the remittitur issued in Blunt II.
On September 21, 2004, the trial court considered Blunt’s motion to file and amended complaint and Rehabilicare’s motion to dismiss. The court granted Blunt’s motion for leave to file her third amended complaint against Rehabilicare. It rejected Rehabilicare’s statute of limitations argument and ruled that the amended complaint related back to the original complaint. The court concluded: “This ruling is without prejudice to Rehabilicare, Inc. filing a motion to raise the issue of whether service of this [third] amended complaint will fall within the [three-year] limitations period set forth in section [583.210 subdivision] (a), excluding any periods of stay or impracticability under section 583.240. Neither side presented any argument or authority on this issue, and the court therefore cannot rule out the possibility that plaintiff can establish a sufficient period of stay or tolling to remain within the [three-year] deadline for service. . . .” (Bold omitted.)
On December 22, 2004, Rehabilicare filed another motion to dismiss, arguing that Blunt had failed to serve it with the pleadings within three years after the action began. The court denied Rehabilicare’s motion, finding that Blunt served Rehabilicare with the summons, initial complaint, and Doe amendment in November 1999, which was within the three-year deadline. In its order filed March 10, 2005, the trial court stated: “Once summons was timely served on Rehabilicare and returned, any subsequent amended complaints for which proper leave of court is obtained are not subject to the three-year service of summons deadline.”
Almost three years later, on September 7, 2007, Rehabilicare brought a motion to dismiss Blunt’s third amended complaint for failure to bring the action to trial within five years of the commencement of the lawsuit.
On November 1, 2007, after a hearing, the trial court granted Rehabilicare’s motion to dismiss. The court noted that the action was “commenced” by the filing of the original complaint on February 27, 1998. The court stated that it had been over nine years and seven months from the filing of the original complaint, and it calculated that the total amount of time excluded for the periods where a matter in the lawsuit was pending in the appellate court was three years and 114 days. The court calculated that the time properly counted towards the five-year deadline was more than six years and four months. The court rejected Blunt’s argument that the time should have been tolled between the date she filed her original complaint and her filing of the third amended complaint with the court’s permission. The court explained: “Although the default entered against Rehabilicare was based upon an invalid first amended complaint filed before leave of court had been sought and granted, this court retained jurisdiction on matters other than entry of default up until the filing of the appeal. Plaintiff could have cured matters by filing and serving an amended complaint with leave of court, but failed to do so for years. This delay attributable to plaintiff does not qualify for any exceptions to the five-year rule.” Thus, the court dismissed the lawsuit pursuant to sections 583.310, 583.360, and 583.340.
Blunt filed a timely notice of appeal.
DISCUSSION
When a case has not been brought to trial within five years after the filing of the lawsuit, the action must be dismissed, either on motion of the defendant or on the court’s own motion. (§§ 583.310 & 583.360.) In the present case, Blunt filed her original complaint on February 27, 1998, and the trial court dismissed her lawsuit more than nine years later in 2007. Thus, unless an exception to the mandatory five-year period applies, the lower court properly dismissed this action.
Blunt argues that the five-year period began on September 21, 2004, when the lower court granted her permission to file her third amended complaint against Rehabilicare. She maintains that the time did not begin to run when she filed her original complaint because the court did not have jurisdiction over Rehabilicare until it gave her permission to file her third amended complaint. Alternatively, she maintains that the impracticable and impossible exception under section 583.340, subdivision (c) applied and the five-year period was tolled after August 11, 1998, when the trial court sustained the demurrer against her complaint with leave to amend. Finally, she argues for the first time in her reply brief that the trial court’s actual calculations regarding the time tolled were incorrect. We examine each of her contentions.
I. The Statutes and the Standard of Review
Section 583.310 provides that “an action shall be brought to trial within five years after the action is commenced against the defendant.” Section 583.360 reads: “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
The purpose of the five-year dismissal statute is to prevent the prosecution of stale claims where defendants could be prejudiced because evidence is lost or the memory of witnesses dims. (Lewis v. Superior Court (1985) 175 Cal.App.3d 366, 375.) It also protects defendants from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of time. (Ibid.)
When the facts are undisputed, the interpretation of the five-year dismissal statute (§ 583.310) is subject to de novo review by the appellate court. (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 951.) Here, we employ de novo review because the material facts are not in dispute.
We are not, however, simply concerned with interpreting the five-year dismissal statute; we also must address whether a statutory exception applies. Section 583.340 sets forth the following exceptions: “In 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: [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.” The determination of whether the exception to the five-year statute for impossibility, impracticability or futility applies is a matter for the trial court’s discretion and we will not disturb that determination on appeal unless an abuse of discretion is shown. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271.)
II. The Date When the Five-Year Period Commenced
As already stated, the trial court found that the five-year period began to run when Blunt filed her original complaint. Blunt maintains that it did not begin running until September 21, 2004, when the lower court gave her permission to file her third-amended complaint. She argues that the time could not begin prior to the superior court’s having jurisdiction over Rehabilicare.
Blunt’s argument finds no support in the case law. Cases uniformly hold that, for purposes of the statutes governing dismissal for failure to prosecute, an action is commenced against a Doe defendant when the complaint is filed, not when the complaint is amended to name the Doe defendant. (See, e.g., Gray v. Firthe (1987) 194 Cal.App.3d 202, 209; Nelson v. A.H. Robins Co. (1983) 149 Cal.App.3d 862, 866; Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89, 94; Warren v. Atchison T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 38.) “As to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint. [Citation.] But when a new party is added to the action, the action commences as to that party on the date of the order adding him or her as a party or on the date of filing of the pleading naming him or her as a new party. [Citation.]” (Gray v. Firthe, supra, at p. 209.) The Gray court concluded that the defendants in the case before it had not been brought in as Doe defendants and therefore the five-year period began running with the filing of the amended pleading naming the defendants. (Id. at p. 210.)
In contrast to the situation in Gray v. Firthe, here, Blunt named Rehabilicare as a Doe defendant. When reporting to the court on November 3, 1999, Blunt stated that she had contacted the agent for service of process “for the Doe defendant, Rehabilicare . . . .” The proof of service showed that Blunt personally served Rehabilicare “as Doe 2 (defendant)[.]” Thus, since Rehabilicare was a party to the original complaint filed on February 27, 1998, albeit under a fictitious name, the five-year period for prosecuting the action began with Blunt’s filing of the original complaint.
Blunt contends that the five-year period did not begin to run until the court gave her permission to file her third amended complaint because that is when the superior court first had jurisdiction over Rehabilicare. Blunt quotes the following language in our opinion in Blunt I to support her argument: “It is elementary that a court cannot enter judgment on a pleading that no longer exists. Because there was no valid complaint, ‘all the subsequent proceedings were void in that they were beyond the jurisdiction of the court as no action was pending between the parties . . . .’ (Malick v. American Sav. & Loan Assn. (1969) 273 Cal.App.2d 171, 175.)” (Blunt I, supra, at p. 6.) Blunt asserts: “A court either has jurisdiction or it does not.”
Blunt misconstrues the foregoing quote and fails to appreciate that jurisdiction has a variety of meanings. Most significantly, Blunt does not distinguish between a lack of fundamental jurisdiction, which means the court has no power to act, and other types of lack of jurisdiction, which denote the court acted in excess of its power. A lack of fundamental jurisdiction occurs when “the court was entirely without power over the subject matter or the parties.” (In re Harris (1993) 5 Cal.4th 813, 836.) In contrast, a court with power over the subject matter and parties “acts in excess of its jurisdiction when ‘it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ ” (People v. Tindall (2000) 24 Cal.4th 767, 776.)
Here, the trial court had jurisdiction over Blunt’s original pleading, but it acted in excess of its jurisdiction when it granted relief on an invalid pleading. Until Blunt complied with the procedural rules and received the lower court’s approval to file an amended complaint against Rehabilicare, the trial court did not have the authority to award damages against Rehabilicare. Except for the period when a matter was pending before an appellate court, the trial court always had the authority to grant a request by Blunt to amend the complaint, as it had jurisdiction over the lawsuit.
In Blunt I, we never suggested that the trial court lacked fundamental jurisdiction or the power to resolve the matter in controversy. Rather, we determined that Blunt had failed to comply with the procedural rules and therefore the superior court had acted in excess of its authority when awarding damages on an invalid pleading.
Accordingly, the five-year period under sections 583.310 and 583.360 commenced when Blunt filed her original complaint on February 27, 1998, and named Rehabilicare by a fictitious name. (See, e.g., Gray v. Firthe, supra, 194 Cal.App.3d at p. 209; Nelson v. A.H. Robins Co., supra, 149 Cal.App.3d at p. 866; Elling Corp. v. Superior Court, supra, 48 Cal.App.3d at p. 94; Warren v. Atchison T. & S.F. Ry. Co., supra, 19 Cal.App.3d at p. 38.)
We need not address Rehabilicare’s argument that dismissal is required because Blunt’s claims are untimely under the applicable statute of limitations.
III. The Exception Under Section 583.340, Subdivision (c)
Section 583.340, subdivision (c) provides that an exception to the five-year rule applies if prosecuting the action “was impossible, impracticable, or futile.” Blunt appears to be arguing that it was impossible or impracticable for her to prosecute this action after August 11, 1998, when the lower court sustained the demurrer with leave to amend. It is not entirely clear whether Blunt is arguing that the time was suspended from August 1998 until we issued our remittitur in Blunt I or until the lower court granted her request to file her third amended complaint in September 2004. The end date is of no significance, because we conclude that the beginning date of August 11, 1998, was not an event that made it impossible or impracticable for Blunt to prosecute her action.
As we explain below, the time was tolled when a matter concerning this lawsuit was pending in the appellate court.
Under section 583.340, subdivision (c), “[w]hat is impossible, impracticable, or futile is determined in light of all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.” (Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 251.)
“Reasonable diligence places on a plaintiff the affirmative duty to make every reasonable effort to bring a case to trial within five years, even during the last month of its statutory life. [Citation.] [¶] 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. [Citation.] Moreover, reasonable diligence alone is not sufficient to protect a party from an involuntary dismissal; rather, reasonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability, or futility. [Citation.]” (Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532-1533.)
The record makes it clear that Blunt did not exhibit reasonable diligence following the hearing on the demurrer. The trial court sustained the demurrer against Blunt’s pleading on August 11, 1998, and she had 20 days from the date of the order to file a first amended complaint. The demurrer destroyed the operative complaint and she did not file an amended pleading within 20 days of the order on the demurrer. She then attempted to file a Doe amendment to a pleading that no longer existed. Blunt complains that she cannot be held responsible for these mistakes because she did not know that the demurrer had remained on calendar.
Blunt completely ignores that the hearing on August 11, 1998, was not simply for the demurrer. Rather, it was a hearing on the demurrer and a status conference. Indeed, the court imposed sanctions in the amount of $75 against Blunt’s counsel for failing to appear for the status conference and for his failure to file a status conference report. Thus, Blunt’s counsel was negligent for not appearing at this hearing. Further, the sanctions were to be paid by August 25, 1998, and we presume that counsel for Blunt complied with this order. Therefore, contrary to Blunt’s assertions, it appears that she received a copy of this order.
Further, counsel for Solano Sports and Kassis appeared at the hearing; thus, Blunt could have discovered from opposing counsel that the demurrer remained on calendar. Moreover, a simple review of the court’s file or the docket report would have alerted Blunt to the fact that the demurrer had remained on calendar and that her first amended complaint that she had attempted to file without the court’s approval and after a defendant had answered her original pleading was not deemed filed.
We therefore conclude that minimal diligence would have revealed that the demurrer had remained on calendar. Accordingly, the hearing on August 11, 1998, did not suspend the time for prosecuting the action under the impossible or impracticable exception.
To the extent that Blunt is arguing that any other time period should be tolled—other than when an issue was pending in the appellate court—we reject such a claim. Blunt argues in her reply brief, without citing any authority, that the time should be tolled after Rehabilicare filed its motion to dismiss. There is no authority or reason to support the tolling of this period. Indeed, once Blunt received notice that there was a motion to dismiss based on her failure to prosecute, she should have taken some active steps to bring the matter to trial.
Further, we note that the record establishes that Blunt has continued her pattern of disregarding rules and failing to exhibit diligence in prosecuting this action. Even after we issued our decision in Blunt I where we expressly stated that Blunt needed the superior court’s approval to file an amended pleading, Blunt improperly attempted to file a second amended complaint on November 6, 2002, without receiving the trial court’s permission. Additionally, Blunt has done little to bring this case to trial. From the time we issued our remitter in Blunt I on August 20, 2002, until Blunt filed her notice of appeal in Blunt II on May 4, 2005, Blunt did not request a trial date and took no depositions. According to Rehabilicare, “A handful of discovery requests were propounded on Rehabilicare and timely responses were served.”
When Blunt finally requested the lower court’s permission to file her third amended complaint, the court on September 21, 2004, denied Rehabilicare’s motion to dismiss based on the running of the statute of limitations. The court explained that the amended complaint could “relate back” to the filing of the original complaint. By this order, the trial court put Blunt on notice that, at a minimum, the original complaint could be the date used for all statutes, including the time period required to prosecute an action. Blunt, however, continued to do little to move the action forward. Blunt did not request a trial date and took only one deposition of a former employee of Rehabilicare on March 23, 2006. According to Rehabilicare, “In November 2006, [Blunt] propounded limited discovery concerning the last known name and address of another former employee of Rehabilicare.” No other action was taken by Blunt to move the action forward.
Blunt has not followed the procedural rules and, when advised of problems, has not attempted to remedy the problem in a diligent manner. More significantly, Blunt has not exercised reasonable diligence in prosecuting her case and has let the case remain inactive for long periods of time. Accordingly, we conclude that, other than the time when an issue was pending in the appellate court, the impracticable or impossible exception to the five-year period does not apply in the present case.
IV. Computing the Time
In her reply brief, Blunt raises for the first time a challenge to the trial court’s computation of time when determining that the five-year period had lapsed. Thus, Blunt once again, by raising a new issue in her reply brief, has failed to comply with the appellate rules and has deprived Rehabilicare of the opportunity to brief this matter. (See, e.g., Campos v. Anderson (1997) 57 Cal.App.4th 784, 794.) “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Id. at p. 794, fn. 3.)
Here, Blunt has presented no explanation for her failure to raise the issue in her opening brief. Ordinarily, we would not consider an issue raised for the first time in the reply brief. However, since an error in the computation of the time is critical to resolving the issue raised on appeal, we consider the merit of Blunt’s claim despite her continued disregard of court rules and procedure.
Blunt objects to the following calculations in the court order: “The time periods of lack of court jurisdiction or stay are two years, 62 days (March 9, 2003, through May 24, 2004, the time period of the stay ordered by Judge Moelk during the appeal by plaintiff as to dismissals of other defendants), and 34 days (May 4, 2005, through June 7, 2005, the time period during which Rehabilicare’s petition for writ of mandate/stay on the service issue was pending before the appellate court). The total amount of time excluded under [section] 583.340 from computation is three years, 114 days. Thus, the time properly counted towards the five year deadline amounts to more than six years and four months.”
We agree with Blunt that the first sentence of the order is not correct. Obviously, the period between March 9, 2003, through May 24, 2004, does not equal two years and 62 days. Further, the court refers to “time periods” in the first sentence but specifies only one time period in this sentence. Finally, two years and 62 days plus 34 days does not equal three years and 114 days.
The trial court’s order, however, makes it clear that it calculated the five-year time period from the time Blunt filed her original pleading on February 27, 1998. Its order also dismissed Blunt’s argument that it was impossible or impracticable for her to prosecute the action after the hearing on the demurrer because she allegedly did not know that the demurrer had remained on calendar. The court expressly found that this exception was not available to Blunt since she was not reasonably diligent and could have remedied the problem at any point in time by requesting the court’s permission to file her pleading. As already discussed extensively, we agree with the lower court’s rejection of Blunt’s arguments.
Thus, the only time when the five-year time period did not run was during those intervals when a matter concerning this lawsuit was pending in the appellate court. (See section 583.310, subdivisions (b) and (c); Bergin v. Portman (1983) 141 Cal.App.3d 23, 25-26.) If there are distinct periods during the pendency of a single case that are tolled under section 583.340, the distinct periods are tacked together for an aggregate exclusion and each should be applied by the trial court to determine whether five years between the filing of the case and bringing the action to trial have passed when granting the motion to dismiss. (Holland v. Dave Altman’s R.V. Center (1990) 222 Cal.App.3d 477, 481.)
We are aware that the time period may not be suspended when the matter on appeal is a collateral matter (see, e.g., Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-191). Neither party raised or briefed this issue. We therefore presume that the appeals and the writ of mandate petition suspended the time.
Here, there were three such periods. Rehabilicare filed its first notice of appeal in Blunt I on March 7, 2001, and this court issued the remittitur for Blunt I on August 20, 2002. Thus, the time to prosecute the action was tolled during this period, which was 531 days. Blunt filed her notice of appeal in Blunt II on April 18, 2003, and this court issued its remittitur for Blunt II on May 24, 2004. Accordingly, the time to prosecute was tolled for an additional 402 days. Finally, Rehabilicare’s petition for writ of mandate was pending before this court on May 4, 2005, through June 7, 2005, for a period of 34 days. The time for prosecution was therefore tolled for a total of 967 (531+402+34) days or two years and 237 days.
Blunt filed her original complaint on February 27, 1998, and Rehabilicare filed its motion to dismiss on September 7, 2007. The number of days between February 27, 1998, and September 7, 2007, is 3,506 days, which equals nine years, six months, and 11 days. If we deduct the 967 days when the case was pending in the appellate court from the total of 3,506 days, the time properly counted towards the five-year deadline is 2,539 days (3,506-967) or six years and 349 days. Thus, Blunt failed to bring the action to trial within five years as mandated by sections 583.310 and 583.360 and the lower court properly dismissed her action against Rehabilicare.
DISPOSITION
The judgment is affirmed. Blunt is to pay the costs of appeal.
We concur: Kline, P.J., Richman, J.