Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. JCCP 4350, Carolyn B. Kuhl, Judge.
Law Offices of Kevin M. Tripi, Kevin M. Tripi for Plaintiff and Appellant.
Horvitz & Levy, Bradley S. Pauley, Robert H. Wright; Bremer Whyte Brown & O’Meara, Nicole Whyte, Stephanie N. Rachel, and Alison K. Hurley for Defendant and Respondent E-Commerce Exchange, Inc.
Duane Morris, Max H. Stern, W. Andrew Miller, Jessica E. La Londe for Defendants and Respondents CSB Partnership; Chris & Tad Enterprises; CSB & Ellison, LLC; CSB & Hinckley, LLC; CSB & Humbach, LLC; CSB & McCray, LLC; and CSB & Perez, LLC.
Quinn Emanuel Urquhart Oliver & Hedges, Jon Steiger, G. Lisa Wick, Andrea L. Manka for Defendant and Respondent Flagstar Bank.
Casello & Lincoln, James H. Casello for Defendants and Respondents Clayton Shurley dba Clayton Shurley’s Texas BBQ; Clayton Shurley’s Texas BBQ, Inc.; Clayton Shurley’s Real BBQ, Inc.; Elliot McCrosky dba California Homefinders and E&N Financial; Daniel Quon; Daniel E. Quon, O.D., Inc.; and Fax.com, Inc.
MOSK, J.
INTRODUCTION
Actions not brought to trial within five years must be dismissed. (Code Civ. Proc., §§ 583.310 & 583.360 .) Excluded from that five-year period is all time during which “[p]rosecution or trial of the action was stayed or enjoined.” (§ 583.340, subd. (b).) Also excluded from the five-year period is all time during which “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (§ 583.340, subd. (c).) In the original opinion in this case, the majority concluded that a stay under section 583.340, subdivision (b) includes a partial stay of the prosecution of an action, and held that the trial court erred in failing to exclude from the five-year period time during which a partial stay was in effect. (§ 583.340, subd. (b).) Based on that holding, the majority did not decide whether these disputed time periods also should have been excluded under subdivision (c) of section 584.340. In the opinion, the majority also addressed whether other periods that did not involve a stay of prosecution were excluded from the five-year period under subdivision (c) of section 583.340, and held that some of these periods should have been excluded and others should not have been.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
On review, the California Supreme Court held that the prosecution of an action is stayed under subdivision (b) of section 583.340 for purposes of computing the five-year period in which to bring an action to trial only when the stay encompasses all proceedings in the action. In addition, the Supreme Court set forth the standard trial courts should use in applying section 583.340, subdivision (c), and remanded the matter to this court to review the trial court’s ruling in light of the Supreme Court’s opinion. Because plaintiff and appellant Dana Bruns did not show that her failure to bring her case to trial was caused by any partial stay or other impediments, we affirm.
We recite the facts set forth in the original opinion rather than from the Supreme Court’s opinion because the Supreme Court omitted a recitation of the facts concerning the disputed time periods in this case, as it was remanding the matter to this court to apply the law as stated in its opinion.
On February 22, 2000, plaintiff brought an action in Orange County Superior Court on behalf of herself and a putative class of others similarly situated, against defendant and respondent E-Commerce Exchange, Inc. (ECX), Flagstar Bank, Clayton Shurley’s Texas BBQ, and Does 1 through 500, inclusive, for allegedly sending unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. section 227(b)(1)(C). Through subsequent amendments ending in a fifth amended complaint and substitutions for fictitiously named defendants, plaintiff added causes of action for violation of California’s Unfair Competition Law (Bus. & Prof. Code, § 17200, et seq.) and negligence, and named additional defendants and respondents CSB Partnership; CSB & Perez, LLC; CSB & Hinckley, LLC; CSB & McCray, LLC; CSB & Ellison, LLC; CSB & Humbach, LLC; Chris & Tad Enterprises (CSB defendants); Clayton Shurley dba Clayton Shurley’s Texas BBQ; Clayton Shurley’s Real BBQ, Inc.; Elliot McCrosky dba California Homefinders and E&N Financial; Daniel Quon; Daniel E. Quon, O.D., Inc.; and Fax.com, Inc. On May 6, 2004, on a petition for coordination by defendants Fax.com, Inc. and Kevin Katz (who, apparently, is no longer a party to this action), plaintiff’s case was transferred to the Superior Court in Los Angeles County for coordination with other cases.
When this matter was first before us, ECX filed its own respondent’s brief and joined the respondents’ brief filed by the CSB defendants except for that part of the CSB defendants’ brief that concerns dismissal of an action under section 583.210. The CSB defendants, which filed their own respondents’ brief, joined ECX’s respondent’s brief. Flagstar Bank; Clayton Shurley dba Clayton Shurley’s Texas BBQ; Clayton Shurley’s Texas BBQ, Inc.; Clayton Shurley’s Real BBQ, Inc.; Elliot McCrosky dba California Homefinders and E&N Financial; Daniel Quon; Daniel E. Quon, O.D., Inc.; and Fax.com, Inc., which with ECX and the CSB defendants collectively are referred to in this opinion as “respondents, ” did not file their own respondent’s briefs but joined in the briefs of respondents ECX and the CSB defendants. On remand from the Supreme Court, plaintiff and ECX filed supplemental briefs. The CSB defendants joined ECX’s supplement brief.
On May 24, 2000, the trial court, Judge William F. McDonald, imposed a discovery stay and ruled that plaintiff’s eight pending discovery motions were rendered “moot” by the stay. The trial court’s minute order states, “Discovery is ordered stayed until the entry of CMO [case management order].” ECX’s notice of ruling states, “All discovery, discovery issues and motions are stayed pending further order of the Court....” On June 16, 2000, the trial court entered a case management order that states, in part, “On May 24, 2000, this Court stayed discovery pending entry of a Case Management Order.... The stay on discovery is hereby lifted.” The trial court’s June 16, 2000, minute order states that two motions to compel discovery set for June 21, 2000, were “moot” and, thus, vacated. On July 12, 2000, the trial court “further clarified its prior Orders with respect to the reopening of discovery.” The trial court ruled that, except for certain identified interrogatories, “all discovery, if deemed necessary or advisable to the propounding party, would need to be re-served. All previous discovery motions remain vacated and moot as a result of this ruling.”
On June 13, 2002, the trial court stayed this action for all purposes pending resolution of the appeal in Kaufman v. ACS Systems, Inc. (2003) 110 Cal.App.4th 886, which case addresses, in relevant part, whether a plaintiff has a private right of action for a violation of the TCPA in state court. On October 21, 2003, after the Court of Appeal’s opinion in Kaufman v. ACS Systems, Inc. that recognized such a cause of action (id. at pp. 895-896), the trial court lifted the stay in this action.
On December 3, 2003, the trial court held a review hearing at which it ordered that “All discovery is stayed.” On January 15, 2004, the trial court lifted the stay.
On January 30, 2004, the trial court set a hearing for March 4, 2004, on the petition for coordination and ordered, “All hearings, orders, motions, discovery or other proceedings are hereby stayed in all cases subject of [sic] the petition for coordination until a determination whether coordination is appropriate.” On April 7, 2004, the trial court granted the petition for coordination. On May 6, 2004, this case was assigned to Judge Charles W. McCoy of the Los Angeles Superior Court. The assignment order states, “Immediately upon assignment, the coordination trial judge may exercise all the powers over each coordinated action of a judge of the court in which that action is pending.”
On January 15, 2004, plaintiff obtained entry of ECX’s default. On January 23, 2004, plaintiff obtained entry of CSB Partnership’s default. On November 8, 2004, upon motions, the trial court set aside the entry of defaults against ECX and CSB Partnership.
On August 2, 2004, Judge McCoy issued an order setting the initial status conference for August 17, 2004. In the order, Judge McCoy also ordered, “To facilitate the orderly conduct of this action, all discovery, motion and pleading activity is temporarily stayed pending further order of this court.” At the initial status conference on August 17, 2004, Judge McCoy ordered, “The Stay is lifted for the sole purpose of serving any unserved parties.” Further, Judge McCoy set October 22, 2004, for hearing “any Motions Re Lifting Stay so as to Enforce Existing Judgment.” Judge McCoy never did lift the August 2, 2004, stay.
On April 20, 2005, Los Angeles Superior Court Judge Carolyn B. Kuhl, to whom this case was reassigned effective January 3, 2005, entered a discovery order that required, among other things, that respondents respond to specified interrogatories and document requests. Judge Kuhl set a deposition date for Fax.com, Inc. and permitted other depositions to be scheduled, but did not otherwise lift the stay imposed on August 2, 2004. On July 11, 2006, Judge Kuhl “lifted the stay on discovery, and ordered that the parties may conduct open discovery.”
On November 22, 2006, the CSB defendants, except for CSB Partnership, filed a motion to dismiss plaintiff’s fifth amended complaint on the ground that plaintiff failed to serve the CSB defendants other than CSB Partnership with a summons and complaint within three years of the commencement of the action as required by section 583.210, and on the ground that plaintiff failed to bring her action to trial within the five-year statutory period as required by sections 583.310 and 583.360. CSB Partnership and apparently all other defendants except Flagstar Bank subsequently joined this motion to dismiss the action.
The relevant notice of joinder lists “Clayton Shurley, an individual and dba Clayton Shurley’s Texas BBQ, a California Corporation” as joining the motion, but not “Clayton Shurley’s Texas BBQ, Inc.”
On November 22, 2006, ECX moved to dismiss plaintiff’s fifth amended complaint pursuant to sections 583.310 and 583.360, subdivision (b) on the ground that plaintiff failed to bring her action to trial within the five-year statutory period. It appears that all defendants joined ECX’s motion. The trial court granted respondents’ motion to dismiss under sections 583.310 and 583.360, ruling that plaintiff failed to bring her action to trial within the required time.
See footnote 3, ante.
In ruling on respondents’ motion to dismiss plaintiff’s fifth amended complaint, the trial court under section 583.340, subdivision (b), excluded certain time periods. It ruled that the 23-day period from May 24, 2000, when there was an order staying discovery to June 16, 2000, was included within the five-year period within which plaintiff was to bring her action to trial, because significant litigation activity occurred during the period. The trial court ruled that it was not impossible, impracticable, or futile “to progress toward bringing this action to trial pursuant to section 583.340(c).” In making its ruling, the trial court also rejected plaintiff’s argument that the May 24, 2000 stay was lifted on July 12, 2000, rather than on June 16, 2000.
The trial court excluded from the five-year period within which plaintiff was to bring her action to trial the 495-day period from June 13, 2002, when there was an order staying proceedings pending an appeal in another case, to October 21, 2003. The trial court ruled that the 44-day period from December 3, 2003, when there was an order staying discovery, to January 15, 2004, was included within the five-year period within which plaintiff was to bring her action to trial because it was not impossible, impracticable, or futile “to make progress toward bringing this action to trial pursuant to section 583.340(c).” In its ruling, the trial court noted that in her opposition to the petition for coordination, plaintiff stated that her case “‘has been aggressively litigated, with extensive discovery and law and motion undertaken. Pre-trial activities in the Bruns action are largely completed.’”
The trial court excluded from the five-year period the 97-day period from January 30, 2004, when all proceedings were stayed pending resolution of the petition to coordinate proceedings, until May 6, 2004. The trial court noted that the periods during which ECX and CSB Partnership were in default overlapped with other periods that it had excluded from the five-year period within which plaintiff was to bring her action to trial. The trial court ruled that the periods that did not overlap with other excluded periods were included within the five-year period because counsel for the defaulting respondents claimed not to have been served with the operative complaint and offered to stipulate to set aside the defaults, and plaintiff’s counsel chose not to agree to the stipulation, thus rejecting a means of continuing with the action. In addition, the trial court ruled it was not impossible, impracticable, or futile to bring plaintiff’s action to trial during the period of the defaults, as other litigation activity continued.
The trial court excluded from the five-year period, the 15-day period from August 2, 2004, when the trial court ordered a temporary stay to August 17, 2004, when the trial court lifted the stay solely for purposes of serving unserved parties. In so ruling, the trial court rejected plaintiff’s contention that the stay remained in effect until the trial court lifted the discovery stay on July 11, 2006, instead ruling that Judge McCoy lifted the stay at the initial status conference on August 17, 2004. The trial court determined that the five-year period expired on October 23, 2006, and because the trial had not been set by that date dismissed the action.
Plaintiff filed a timely notice of appeal. This court reversed the trial court’s dismissal, holding, pursuant to section 583.340, subdivision (b) that the trial court should have excluded from the five-year period time during which partial stays were in effect. This court did not decide whether these disputed time periods also should have been excluded under subdivision (c) of section 583.340. This court also held that other periods that did not involve stays should have been excluded from the five-year period under section 583.340, subdivision (c). The matter was remanded for the trial court to rule on the relevant CSB defendants’ motion to dismiss plaintiff’s fifth amended complaint on the ground that they were not served with the summons and complaint within three years of the commencement of the action as required by section 583.210, and plaintiff’s argument that these CSB defendants were estopped from asserting the section 583.210 argument.
Because we affirm the trial court’s dismissal of plaintiff’s action, the prior remand on these issues is moot.
The CSB defendants, joined by ECX, filed a petition for review in the California Supreme Court. The Supreme Court granted the petition and held that subdivision (b) of section 583.340 applies to an entire stay of proceedings and not to a partial stay. The Supreme Court also set forth the standard trial courts should use in applying section 583.340, subdivision (c), and remanded the matter to this court to review the trial court’s ruling in a manner consistent with the Supreme Court’s opinion.
DISCUSSION
Exclusion Of Time Pursuant To Section 583.340, Subdivision (c)
Plaintiff contends that the trial court abused its discretion in failing to exclude multiple time periods pursuant to section 583.340, subdivision (c) in its calculation of the five-year period to bring her action to trial under sections 583.310 and 583.360. We disagree.
A. Standard of Review
“‘In reviewing the lower court’s dismissal of [an] action for failure to prosecute, the burden is on appellant to establish an abuse of discretion. [Citation.] We will not substitute our opinion for that of the trial court unless a clear case of abuse is shown and unless there is a miscarriage of justice. [Citation.]’ [Citation.]” (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447.) A trial court’s ruling on the application of the exception in 583.340, subdivision (c) is reviewed for an abuse of discretion. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731 (Bruns).) “A trial court will be found to have abused its discretion only when it has ‘“exceeded the bounds of reason or contravened the uncontradicted evidence.”’ [Citations.]” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)
B. Application of Relevant Legal Principles
An action must be brought to trial within five years after a plaintiff commences an action against a defendant. (§ 583.310.) An action is commenced within the meaning of section 583.310 upon the filing of the plaintiff’s original complaint. (Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1010-1011.) The time requirements for bringing an action to trial are “mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360, subd. (b).) Excluded from the five-year period is any period during which it was impossible, impracticable, or futile to bring the action to trial. (§ 583.340, subd. (c).) It is the plaintiff’s burden to prove that the circumstances warrant application of the exception in subdivision (c) of section 583.340. (Bruns, supra, 51 Cal.4th at p. 731; see also Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 329.)
The trial court determines what is impossible, impracticable, or futile within the meaning of subdivision (c) of section 583.340 “‘in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.]’” (Bruns, supra, 51 Cal.4th at p. 730.) The trial court’s inquiry is fact-sensitive and depends on the obstacles the plaintiff faced in prosecuting the action and whether the plaintiff was reasonably diligent in overcoming those obstacles. (Id. at pp. 730-731.) In deciding whether the plaintiff exercised reasonable diligence, the trial court determines “‘“whether it was impossible, impracticable, or futile for the plaintiff to comply with [the statutory five-year constraint] due to causes beyond his or her control.”’ (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1287-1288 [279 Cal.Rptr. 488].)” (Bruns, supra, 51 Cal.4that p. 731.) In addition to showing a circumstance of impossibility, impracticability, or futility, and reasonable diligence in prosecuting the action at all stages of the proceeding, the plaintiff must show a causal connection to the failure to bring the case to trial. (Id. at p. 731, citing Tamburina v. Combined Ins. Co. of America, supra, 147 Cal.4th at p. 326.)
“‘“[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 Nevada Memorial–Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 472 [266 Cal.Rptr. 50].) ‘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 [v. Superior Court (1989) 207 Cal.App.3d 1526, ] 1532.)” (Bruns, supra, 51 Cal.4th at p. 731.) “‘“[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 [86 Cal.Rptr. 297, 468 P.2d 553].)” (Bruns, supra, 51 Cal.4th at p. 731.)
Plaintiff contends the trial court erred in failing to exclude certain periods from the five-year period within which to bring her action to trial. Plaintiff has failed to show a causal connection between any partial stay or other impediment to proceeding and her failure to bring her action to trial within the five-year period. Plaintiff asserts that during the partial stays or impediments, she could not pursue a trial date or try the action during the period of the stays or impediments. But the Supreme Court indicated that the evaluation is whether the impediment or stay precluded compliance with the statutory five-year limit. (See Bruns, supra, 51 Cal.4th at p. 731.) For each of the challenged periods, plaintiff failed to demonstrate in the trial court why, by virtue of any partial stay or other impediment, she could not bring her case to trial within the five-year period. That is, plaintiff did not identify any discovery she could not complete or other action she could not take within the five-year period because of a partial stay or other impediment.
1. March 9, 2000, to May 24, 2000—76 days
On March 9, 11, and 24, 2000, plaintiff served demands for inspection of documents, special and form interrogatories, and requests for admissions on defendants not parties to this appeal. Thereafter, plaintiff filed 10 motions to compel responses to her discovery. On May 24, 2000, the trial court imposed a discovery stay and ruled that eight of plaintiff’s 10 pending discovery motions were rendered “moot” by the stay. On June 16, 2000, the trial court lifted the May 24, 2000, discovery stay and ruled that plaintiff’s two remaining motions to compel were “moot” and ordered them vacated. On July 12, 2000, the trial court, clarifying its prior order reopening discovery, ruled that, except for certain identified interrogatories, all previously propounded discovery would have to be re-served, and all discovery motions remained “moot” and vacated.
Discovery is an essential component of bringing an action to trial. Plaintiff commenced her action on February 22, 2000, and first propounded discovery on March 9, 2000. Plaintiff could not have begun discovery any earlier and, thus, was reasonably diligent in prosecuting her action. (Bruns, supra, 51 Cal.4th at p. 731.) However, “[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[, supra, ]207 Cal.App.3d [at pp.] 1532-1533 [255 Cal.Rptr. 781].)” (Ibid.)
Even though plaintiff was diligent in pursuing discovery and could not have avoided the delay caused by the trial court’s discovery stay and discovery orders, plaintiff failed to show any causal connection between the delay and her failure to bring her action to trial within five years. (Bruns, supra, 51 Cal.4th at p. 731, citing Tamburina v. Combined Ins. Co. of America, supra, 147 Cal.4th at p. 326.) In her January 2004, opposition to the petition for coordination, plaintiff stated that her action had been “aggressively litigated, with extensive discovery and law and motion undertaken. Pretrial activities in the Bruns action are largely completed.” Because plaintiff’s pretrial activities were “largely completed” in January 2004, far in advance of the expiration of the five-year period, any discovery delay in early 2000 plainly did not prevent her from timely bringing her action to trial.
2. May 24, 2000, to July 12, 2000—49 days
As set forth above, on May 24, 2000, the trial court issued a minute order staying discovery until the entry of a case management order. On June 16, 2000, the trial court entered a case management order that, in part, lifted the May 24, 2000, discovery stay. On July 12, 2000, the trial court “further clarified” its prior order with respect to reopening discovery and ordered that except for certain interrogatories, all prior discovery, if deemed necessary or advisable, would have to be re-served and that all prior discovery motions remained vacated.
A majority of this court originally held that the relevant period was the 23-day period from May 24, 2000, when the trial court entered a discovery stay to June 16, 2000—the date the trial court entered its case management order. Because the majority held that a discovery stay is a stay of prosecution under section 583.340, subdivision (b), it did not consider whether the trial court erred in failing to exclude this period 23-day period under section 583.340, subdivision (c) from the five-year period within which plaintiff was to bring her action to trial. As the 76-day period from March 9, 2000, to May 24, 2000, this period properly was included within the five-year period because plaintiff failed to show any causal connection between the delay and her failure to bring her action to trial within five years. (Bruns, supra, 51 Cal.4th at p. 731, citing Tamburina v. Combined Ins. Co. of America, supra, 147 Cal.4th at p. 326.) As noted above, plaintiff stated in her January 2004, opposition to the petition for coordination that her action had been aggressively litigated, that extensive discovery and law and motion had been undertaken, and that her pretrial activities were largely completed. Because plaintiff’s pretrial activities were “largely completed” in January 2004, any discovery delay in mid-2000 did not prevent plaintiff from timely bringing her action to trial.
3. December 3, 2003, to January 15, 2004—43 days
On December 3, 2003, the trial court held a review hearing at which it stayed all discovery. On January 15, 2004, the trial court lifted the stay. Holding that a stay of discovery is a stay of prosecution under section 583.340, subdivision (b), the majority of this court did not consider in its original opinion whether the trial court erred in failing to exclude this period under section 583.340, subdivision (c).
Notwithstanding this 43-day stay of all discovery—discovery being an essential component of bringing an action to trial—at the end of December 2003, and beginning of January 2004, plaintiff stated in her January 2004 opposition to the petition for coordination that her action had been aggressively litigated, that extensive discovery and law and motion had been undertaken, and that pretrial activities in her action were largely completed. Because plaintiff represented that her pretrial activities were “largely completed” while the trial court’s discovery stay was in effect and has not set forth any other facts concerning a causal connection between the discovery stay and her failure to bring her action to trial within the five-year period—which expired on October 23, 2006—plaintiff has not established the required causal connection between the stay and her failure to get to trial within the required time.
4. May 27, 2004, to August 2, 2004—67 days
On May 6, 2004, Judge McCoy was designated as the judge for coordination proceedings. In support of plaintiff’s opposition to respondent’s motion to dismiss the fifth amended complaint, plaintiff’s counsel submitted a supplemental declaration in which he declared that he contacted the trial court on May 27, 2004, following Judge McCoy’s appointment, to inquire about resetting for hearing discovery motions that had been filed but not yet been heard. Plaintiff’s counsel was told that the trial court was awaiting the transfer of court files for the various actions and could not do anything until it had the files.
Plaintiff’s counsel declared that on June 23, 2004, he called the trial court to determine if the file for plaintiff’s action had been received. Plaintiff’s counsel was told that the file had not yet arrived. Plaintiff’s counsel intended to “follow-up” with the trial court but did not do so after receiving a copy of a letter dated July 28, 2004, (from counsel for a plaintiff in a coordinated action not a party to this appeal) to the trial court that noted that the preferred time for holding a preliminary trial conference after Judge McCoy’s designation had passed (citing former Calif. Rules of Court, rule 1541(a)) and requested that Judge McCoy set a hearing for a pending motion for preliminary injunction. On August 2, 2004, Judge McCoy issued the initial status conference order that stayed plaintiff’s action pending further order of the court. Plaintiff’s counsel declared that based on his conversations with the trial court, he understood that the actions coordinated before Judge McCoy were in abeyance pending transfer of the files.
We agree with plaintiff that the trial court held her action in abeyance pending receipt of her court file and the court files of the other coordinated actions. Plaintiff was reasonably diligent in prosecuting her action during this period, contacting the trial court on May 27, 2004, to schedule a hearing of discovery motions and contacting the trial court again on June 23, 2004, to determine if the trial court had received her court file. (Bruns, supra, 51 Cal.4th at p. 731.) However, “[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[, supra, ]207 Cal.App.3d [at pp.] 1532-1533 [255 Cal.Rptr. 781].)” (Ibid.)
Even though plaintiff was diligent in pursuing discovery and could not have avoided the delay while the trial court awaited transfer of the court files, plaintiff failed to show any causal connection between the delay and her failure to bring her action to trial within the five-year period. (Bruns, supra, 51 Cal.4th at p. 731, citing Tamburina v. Combined Ins. Co. of America, supra, 147 Cal.4th at p. 326.) Prior to this delay, plaintiff had represented to the trial court, in her January 2004, opposition to the petition for coordination, that her action had been aggressively litigated, that extensive discovery and law and motion had been undertaken, and that pretrial activities in her action were largely completed. Because plaintiff’s pretrial activities were “largely completed” in January 2004, and plaintiff has shown no other facts that the delay caused by the transfer of the court files caused plaintiff’s failure to bring her case to trial within the required five-year period, plaintiff has not established the required causal connection between the events and her failure to get to trial within the required period.
5. August 2, 2004, to July 11, 2006—708 days
On August 2, 2004, Judge McCoy set an initial status conference for August 17, 2004. In that order, Judge McCoy ordered, “To facilitate the orderly conduct of this action, all discovery, motion and pleading activity is temporarily stayed pending further order of this court.” At the initial status conference on August 17, 2004, Judge McCoy ordered, “The Stay is lifted for the sole purpose of serving any unserved parties.” Judge McCoy also set October 22, 2004, for “hear[ing] any Motions Re Lifting Stay so as to Enforce Existing Judgment.” On July 11, 2006, Judge Kuhl lifted the stay on discovery and permitted the parties to conduct open discovery.
The parties have not suggested that a proceeding on October 22, 2004 has any significance to the issues in this appeal.
Because a majority of this court held that a discovery stay is a stay of prosecution under section 583.340, subdivision (b), this court did not consider whether the trial court erred in failing to exclude this 708-day period under section 583.340, subdivision (c) from the five-year period within which plaintiff was to bring her action to trial. As the trial court found and as set forth in detail in the dissent to the majority’s original opinion, apart from the 15-day period from August 2, 2004, to August 17, 2004—a period all parties agree should have been excluded from the five-year period—substantial litigation activity, including substantial discovery, took place during this disputed 708-day period. Accordingly, Judge McCoy’s August 2, 2004, order and his and Judge Kuhl’s active management of the case cannot be described as making it impossible, impracticable, or futile for plaintiff to bring her case to trial within the five-year period. (§ 584.340, subd. (c).) Although Judge McCoy ordered the stay of “all discovery, motion and pleading activity” and that stay specifically was lifted for specific purposes and the stay order itself was never lifted, actually, considerable activity in the litigation took place. Plaintiff has not met her burden to show that any restrictions during the period ultimately caused her not to get to trial within the required period.
Moreover, as noted above, several months prior to Judge McCoy’s August 2, 2004, status conference order, plaintiff represented to the trial court, in her January 2004, opposition to the petition for coordination, that her action had been aggressively litigated, that extensive discovery and law and motion had been undertaken, and that her pretrial activities were largely completed. Moreover, plaintiff does not contend that when discovery stays were lifted, she sought expedited discovery or that she sought to specially set her action. Therefore, plaintiff did not show any causal connection between any delay caused by Judge McCoy’s order and his or Judge Kuhl’s active management of the case and plaintiff’s failure to bring her action to trial within five years. (Bruns, supra, 51 Cal.4th at p. 731, citing Tamburina v. Combined Ins. Co. of America, supra, 147 Cal.4th at p. 326.)
In the earlier opinion, a majority of this court focused on the inability of plaintiff to conduct all of the pretrial activities to which she was entitled during certain periods. But the critical factor is whether the inability to undertake activities during certain periods prevented plaintiff from being able to undertake these activities at any time and whether that impediment actually made it impossible, impracticable, or futile to have the trial commence within the required period. Plaintiff has not made a sufficient showing to meet her burden to establish these necessary elements to further extend the five-year period.
C. Calculation of the Five-Year Period
The trial court ruled that three periods of time for a total of 607 days should be excluded from the five-year period within which plaintiff was to bring her action to trial. These periods are the 495 days from June 13, 2002, to October 21, 2003; the 97 days from January 30, 2004, to May 6, 2004; and the 15 days from August 2, 2004, to August 17, 2004. Respondents agree with the trial court that these three periods should be excluded from the five-year period. The trial court added the additional 607 days to the end of the five-year period that would have elapsed on February 22, 2005, had the five-year period not been tolled for any period, and concluded that the five-year period expired on October 23, 2006. Because plaintiff had not moved to specially set her action for trial, and the trial did not commence within the five-year period as calculated by the trial court, the trial court granted respondents’ motions to dismiss that were filed on November 22, 2006. The trial court did not abuse its discretion in determining which periods to exclude in determining whether the plaintiff’s action should be dismissed. The trial court’s calculation of the five-year period is correct. Therefore, we affirm the trial court’s dismissal of plaintiff’s action.
The trial court also entered a complete stay on January 25, 2007, the date of oral argument on the motions to dismiss. Respondents do not contend that the period following January 25, 2007, should be included within the five-year period.
On the one hand, the tolling provision should be liberally construed so as to be consistent with the policy favoring trial on the merits. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270.) On the other hand, the statute’s goal is to compel parties who file actions to prosecute them with promptness and diligence. (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 358.) In this case, we are compelled to follow the Supreme Court’s interpretation of the statute and its declarations of the standards to be applied and the standard of review.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.