(Cf. Hattersley v.American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 402 [ 4 Cal.Rptr.2d 331] ["Court congestion is not a valid basis for denying a litigant his or her day in court."].)

As T.I.E. and Farmers observe, Courts of Appeal routinely consider newly published case law that was not available until after entry of judgment in the trial court. (See, e.g., Hattersley v. AmericanNucleonics Corp. (1992) 3 Cal.App.4th 397, 402 [ 4 Cal.Rptr.2d 331] [rejecting claim that appellant should be foreclosed from relying on theory of law espoused in newly decided Court of Appeal opinion]; see also Cal. Rules of Court, rule 29.3(a) ["When a party desires to present new authorities . . . not available in time to have been included in the party's brief on the merits, the party may serve and file a supplemental brief. . . ."].) Moreover, after the Keating and McLaughlin cases were decided, T.I.E. (and Farmers) sought, and obtained permission, to file supplemental briefs.

We look to cases interpreting the five-year dismissal statute (section 583.310) in construing the three-year dismissal statute (section 583.320) because the tolling principles applicable to the five-year statute are the same as those that apply to the three- year statute. (Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 401 (Hattersley); Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 995 (Mesler).) The " 'impossible, impracticable, or futile' " exception is recognized because the purpose of the dismissal statute "is to prevent avoidable delay, and the exception makes allowance for circumstances beyond the plaintiff's control, in which moving the case to trial is impracticable for all practical purposes."

. . . This is particularly true where the statute proposed by the commission is adopted by the Legislature without any change whatsoever and where the commission's comment is brief, because in such a situation there is ordinarily strong reason to believe that the legislators' votes were based in large measure upon the explanation of the commission proposing the bill." ( Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-250 [ 66 Cal.Rptr. 20, 437 P.2d 508]; see also Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 401 [ 4 Cal.Rptr.2d 331]; Shea-Kaiser-Lockheed-Healy v. Department of Water Power (1977) 73 Cal.App.3d 679, 688 [140 Cal.Rptr.2d 884].) For these reasons, we regard the Reporter's Note as a valuable aid in construing the protective order provision.

-is that the continuance that tolled the eventual deadline occurred at a time the parties were ready and set to go to trial. (See Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 400-402 [allowing tolling for an aggregate period of dates when the court continued the trial on its own motion due to courtroom unavailability]; Rose v. Scott (1991) 233 Cal.App.3d 537, 540 &542 (Rose) [giving plaintiffs' 105-days' worth of extensions for a period of time the trial was continued due to courtroom unavailability, even though after that period the plaintiffs sought to amend their complaint and waited two years to do so]; Lazelle v. Lovelady (1985) 171 Cal.App.3d 34, 37-38 [finding a case was tolled for a period when there were no courts available, and the case trailed on a day-to-day basis]; Wardv. Levin (1984) 161 Cal.App.3d 1026, 1034-1035 [on the deadline to bring a case to trial, the trial was trailed on the court's own motion until a date when a courtroom would become available]; Breacher v. Breacher (1983) 141 Cal.App.3d 89, 91 [Trial was originally set f

While this case was dismissed under the three-year statute, we also consider cases applying the five-year statute because the same policies apply to both statutes. (See e.g., Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 401, 4 Cal.Rptr.2d 331.) The Nunns rely on an exception to the mandatory dismissal statutes, which allows parties to stipulate to an extension of the statutory deadline.

" ‘[S]o long as the court may conclude that there was a period of impossibility, impracticability or futility, over which the plaintiff had no control ..., the court is required to toll that period even if there is ample time after said period of impracticability within which to go to trial.’ " ( Chin v. Meier (1991) 235 Cal.App.3d 1473, 1478, 1 Cal.Rptr.2d 499 ; see Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 402, 4 Cal.Rptr.2d 331.) Appellate review of a trial court's determination of whether section 583.310 was tolled for impossibility, impracticability, or futility is limited.

The court also considered a third delay in bringing the matter to trial and held section 583.340, subdivision (c) tolling includes the aggregate time a case is continued because of court unavailability. (Rose v. Scott, supra, 233 Cal.App.3d at pp. 341-342; accord, Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 300.) Here, State Farm never requested a continuance of a trial date.

"Where, as here, there is an intervening clarification of the law between the ruling challenged and its resolution on appeal and the facts with respect to the contention appear to be undisputed, an appellate court may reach the contention on its merits [even though the theory is raised for the first time on appeal]. [Citations.]" (Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 402.) Here, the 998 offer was made after the amendment to the statute but was not compliant therewith.

Our consideration of the merits would therefore relate almost solely to the issue of prejudice. (See Bihun v. AT T Information Systems, Inc., supra, 13 Cal.App.4th 976 at p. 999, 16 Cal.Rptr.2d 787 [point "arguably raise[d] an issue of great public importance," but since intervening authority had decided the point "it is not necessary for this court to address the issue" (italics omitted)], disapproved on another point in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664, 25 Cal.Rptr.2d 109, 863 P.2d 179.) E.g., Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 402, 4 Cal. Rptr.2d 331 (point rested on "intervening clarification of the law" and resolution of issue depended on undisputed facts); Fisher v. City of Berkeley, supra, 37 Cal.3d 644 at p. 654, fn. 3, 209 Cal.Rptr. 682, 693 P.2d 261 (pure question of law, undisputed facts, important questions of public policy); Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24, 44 Cal.Rptr.2d 370, 900 P.2d 619 ("question of law based on undisputed facts"); In re Marriage of Higinbotham, supra, 203 Cal. App.3d 322, at p. 335, 249 Cal.Rptr. 798 ("question of law determinable from a factual situation already present in the record"); Moschetta, supra, 25 Cal.App.4th 1218, 1227-1228, 30 Cal.Rptr.2d 893 ("matter of intense public and legal concern"). E. Futility.