Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV014100
NICHOLSON, Acting P.J.
Plaintiff David Bregante appeals from an order dismissing his action against defendants Kevin J. Bregante and Karen G. Bregante (also known as Karen G. Winans) (collectively defendants) for failure to bring the action to trial within five years of commencing the action, as required by Code of Civil Procedure section 583.310. David argues the parties’ 2002 settlement agreement renders the five-year statute moot; alternatively, he contends the five-year period was tolled until the settlement agreement was set aside in 2003. We disagree and affirm.
Because all parties share the same surname, we use their respective first names to distinguish them.
Further unspecified statutory references are to the Code of Civil Procedure.
BACKGROUND
David filed this action on May 30, 2001. The complaint alleges that Kevin transferred real property to his former wife, Karen, to avoid an outstanding judgment of $175,000 owed by Kevin to David; it also alleged that Karen conspired with Kevin to defraud David. Karen answered and denied the allegations.
This sum is rounded to the nearest thousand dollars.
Karen alone has filed a respondent’s brief, and her filings are the only ones by defendants which appear in the record.
The action was set for trial on June 3, 2002, and continued to the following day. On the date of trial, the court was informed that the parties’ had reached a settlement. The terms of the settlement were recited in open court: for a $20,000 payment by Karen, David would dismiss the action without prejudice and release various pending liens. (No reporter’s transcript of those proceedings are in the record on appeal.)
David apparently never signed the subsequent written settlement agreement, and the settlement agreement was never reduced to a judgment.
According to David, “[n]othing further was done on this matter” between June 4, 2002, and November 2003 because “no further action could be taken.”
In November 2003, David sought (assisted by new counsel) to set aside the settlement. David asserted that he did not consent in June 2002 to settle the case, that his then-attorney did not have authority to enter into the settlement, and that he never subsequently ratified the settlement. Karen opposed the motion but it was granted and the stipulation was set aside on or about December 31, 2003.
Between December 2003 and November 2006, “[n]othing occurred” in this case.
Then, in November 2006, David moved ex parte to set the matter for trial.
Karen responded by bringing the instant action to dismiss the action for failure to bring it to trial within five years of its commencement. (§ 583.310.) She argued that David should be precluded from asserting that the mandatory five-year period was tolled, because his refusal to sign the settlement agreement misled her and the court, and was the cause of the delay. Alternatively, Karen asked the court to exercise its discretion to dismiss the action for David’s failure to diligently prosecute it. Karen averred that, during the intervening years she has lost potential witnesses, documents and other evidence “which would have proven [her] affirmative defenses.”
David responded that the five-year period within which a civil action must be brought to trial has not expired: its calculation must exclude the 20-month period between the settlement stipulation on June 4, 2002, and the court’s granting of his motion to set aside the stipulated judgment on or about December 31, 2003, because it would have been impossible, impracticable and futile to attempt to bring the matter to trial during that period.
David also argued in his written opposition that the trial court lost jurisdiction to act while the settlement agreement was in place because “judgment was already entered,” but conceded at the hearing that no judgment had been entered.
The trial court ultimately agreed with Karen’s argument that operation of the five-year rule requires dismissal of the action. David appeals.
DISCUSSION
On appeal, David contends that the statute requiring an action to be brought to trial within five years of its commencement was not violated because (1) the matter was “brought to trial” on June 4, 2002, thereby rendering the five-year statutory requirement moot; or, alternatively, (2) the period was tolled during the 20 months between the settlement date and December 31, 2003, when the trial court set aside the parties’ settlement agreement. Neither contention has merit.
A. Applicable Statutes and Standard of Review
An action “shall be brought to trial within five years after the action is commenced against the defendant.” (§ 583.310.)
Dismissal is mandatory if the action is not brought to trial within the statutory period. Section 583.360 states: “(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 is dimmed. It also protects defendants from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of time. (Lewis v. Superior Court (1985) 175 Cal.App.3d 366, 375.)
In calculating the five-year period, the time during which bringing the action to trial was impossible, impracticable or futile shall be excluded. (§ 583.340, subd. (c).) “What 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. [Citations.]” (Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 251 (Brown & Bryant).) “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 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; Hughes v. Kimble (1992) 5 Cal.App.4th 59, 71.)
The trial court did not abuse its discretion in rejecting David’s argument that the period between June 2002 and December 2003 -- after his former counsel entered into a settlement agreement and before new counsel successfully set aside the agreement -- should be excluded from the five-year calculation because it would have been “impossible, impractica[ble] and futile” to attempt to bring the action to trial during that period.
The weight of authority indeed holds that a settlement agreement executed during the pendency of a lawsuit makes it “impossible, impracticable, or futile” to proceed to trial within the statutory time allotted.
For example, in Schiro v. Curci (1990) 220 Cal.App.3d 840 (Schiro), a written settlement agreement was signed more than five years after commencement of the action. Plaintiff Schiro failed to comply with the terms of the settlement, and, three years after the settlement, defendant Curci filed a motion to enforce the settlement and to enter judgment on it. Schiro argued that the trial court was required to dismiss the action because it was not brought to trial within five years of its commencement, as required by section 583.310. (Schiro, supra, at p. 842.) The appellate court rejected the contention and found that the trial court properly granted the motion for entry of judgment: “An action settled by an agreement between the parties will not proceed to trial . . . so that such a settlement renders the five-year limit for bringing to trial of section 583 legally irrelevant. [Citation.] The dispute had been finally disposed of, and nothing remained except to execute the agreement formally. [Citation.] ‘A settlement contract also has the attributes of a judgment in that it is decisive of the rights of the parties and serves to bar reopening of the issues settled. Absent a fundamental defect in the agreement itself the terms are binding on the parties. [Citation.]’ [Citation.]” (Schiro, supra, at pp. 843-844.) The Schiro court reasoned that the futility exception of section 583.340 applied: “[D]uring the time between the agreement to settle and the final execution of the settlement agreement by all the interested parties, it would have been ‘futile’ to bring the action to trial because all the issues had been resolved through settlement.” (Schiro, supra, at pp. 844-845.)
In Canal Street, Ltd. v. Sorich (2000) 77 Cal.App.4th 602, the trial court dismissed the action for failure to bring it to trial within five years. The plaintiffs appealed, contending that a binding settlement agreement between the parties had concluded the action and rendered the five-year statute moot. (Id. at p. 604.) The court followed Schiro (and its predecessor, Gorman v. Holt (1985) 164 Cal.App.3d 984): “These cases uniformly agree that once there has been a settlement in open court, the court can reasonably assume the matter has been finally disposed of and will not go to trial, even though details of execution may remain; consequently, there is no compelling reason a settlement agreement must be reduced to judgment within five years.” (Canal Street, Ltd. v. Sorich, supra, 77 Cal.App.4th at p. 608.) In other words, once there has been a settlement, there are no issues left to try.
Similarly, in Malouf Bros. v. Dixon (1991) 230 Cal.App.3d 280, the defendant refused to perform under the settlement agreement, after the parties had announced its terms in open court. The court held that plaintiff could enforce the settlement agreement (§ 664.6), and denied defendant’s motion to dismiss the action for plaintiff’s failure to bring it to trial within five years: “Once the parties have stated a complete settlement in open court, the court can assume the matter has indeed been finally disposed. Details of execution may remain, but it is reasonable to assume the matter will not go to trial. If a dispute about the settlement develops, it can be resolved through the streamlined procedure . . . section 664.6.” (Malouif Bros. v. Dixon, supra, at p. 285.)
This rule has been applied to exclude from the five-year calculation the period during which a settlement agreement was in place, even after it expired. In Brown & Bryant, supra, 24 Cal.App.4th 247, the parties entered into a settlement contingent, in part, on the parties obtaining documents releasing Brown & Bryant from any further claims by the United States Environmental Protection Agency. (Brown & Bryant, supra, 24 Cal.App.4th at p. 250.) The releases failed to materialize and the settlement expired by its own terms. (Id. at pp. 250-251.) Defendants then moved successfully to dismiss the action for plaintiff’s failure to bring the action to trial within five years. Plaintiff appealed, asserting that the five-year period was “tolled while the settlement agreement was in effect because the agreement barred it from litigating the underlying lawsuit.” (Id. at p. 252.)
Relying on the authorities cited above for the proposition that “a timely and enforceable settlement agreement which finally disposes of all issues in the underlying lawsuit renders section 583.310 et seq. ‘legally irrelevant[,]’” (Brown & Bryant, supra, 24 Cal.App.4th at p. 254), the appellate court in Brown & Bryant reasoned that, even though “the agreement was enforceable only during a limited 14-month period” (id. at p. 255), it was impossible, impracticable or futile to bring the case to trial during that period, thereby tolling the five-year statute. (Id. at p. 257.)
These cases do not assist David, however. They rest on the premise that a plaintiff’s obligation to advance the action to trial is suspended if the parties have reached a binding, enforceable settlement that leaves no issue remaining for resolution at trial. Here (and notwithstanding his counsel’s June 2002 representations to the contrary), David contends no enforceable settlement agreement ever existed because his attorney never had authority to enter into an agreement and David never ratified it. Indeed, arguing that no settlement agreement ever existed, David successfully moved in 2003 to set it aside. David cannot now argue that an enforceable settlement agreement existed for 20 months which made it “‘futile’ to bring the action to trial because all the issues had been resolved through settlement.” (Cf. Schiro, supra, 220 Cal.App.3d at pp. 844-845.)
Under these circumstances, the trial court did not err in ruling that for the 20 months between David’s counsel’s announcement of a settlement agreement and his successful motion to set aside that agreement as unauthorized it was “impossible, impracticable, or futile” to proceed to trial within the five-year statutory time frame. The tolling provision for impossibility, impracticability or futility does not exist in a vacuum. The court was entitled to consider “all the circumstances of a particular case, including the conduct of the parties,” the nature of the proceedings, and the “critical factor [of] whether the plaintiff exercised reasonable diligence in prosecuting its case.” (Brown & Bryant, supra, 24 Cal.App.4th at p. 251.) Here, the trial court properly concluded from the record that David failed to exercise reasonable diligence in prosecuting his case after June 2002. He did not move with reasonable diligence to correct the misimpression created by his counsel that there existed an enforceable settlement agreement and, after the settlement agreement was set aside, he did not act with reasonable diligence to set the matter for trial. “[R]easonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability, or futility. [Citation.]” (Baccus v. Superior Court, supra, 207 Cal.App.3d at pp. 1532-1533; Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502.) Absent facts to support a finding of diligence on David’s part, the trial court acted within its discretion in rejecting David’s claim that it would have been futile to bring the case to trial within the five-year period.
On appeal, David asserts that the court erred in dismissing the action because it was, in fact, “brought to trial” by virtue of the settlement agreement announced in court on June 4, 2002, well within the five-year period. It was not. An action has been “brought to trial” within the meaning of section 583.310 if the jury has been impanelled and sworn (or, in the case of a court trial, when the first witness is sworn) (Hartman v. Santamarina (1982) 30 Cal.3d 762) or -- as we have discussed -- when there exists a binding and enforceable settlement. (Canal Street, Ltd. v. Sorich, supra, 77 Cal.App.4th at p. 608.) None of those events occurred here.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant Karen G. Bregante. (Cal. Rules of Court, rule 8.276(a).)
We concur: HULL, J., CANTIL-SAKAUYE, J.