Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CVCS010962
SIMS, Acting P.J.Plaintiff Charles W. Siller appeals the trial court’s dismissal of his case, CVCS010962, for failure to bring the action to trial within five years of the filing of the complaint, pursuant to Code of Civil Procedure section 583.310. Plaintiff contends that he was unable to bring his action within the five-year statutory period because there were no judges available to hear the case, the case was not “at issue” within the statutory period, and the case was trailing a related matter that was decided after the statutory period. We shall determine that none of these contentions supports a tolling of the five-year period under section 583.340, subdivision (c). Accordingly, we shall affirm the trial court’s dismissal of plaintiff’s lawsuit.
Undesignated section references are to the Code of Civil Procedure. Section 583.310 provides, “An action shall be brought to trial within five years after the action is commenced . . . .”
Section 583.340 states in pertinent part, “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 [¶] . . . [¶] Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2001, plaintiff commenced a legal malpractice lawsuit against defendant Freidberg Law Corporation in Sutter County. On June 4, 2001, plaintiff filed a peremptory challenge under section 170.6 to disqualify Judge Perry Parker. The case was later assigned to Judge Damron for all purposes.
Almost two years later, plaintiff filed a motion for leave to file an amended complaint, which the trial court granted on April 30, 2003. On June 10, 2003, defendant filed a demurrer to the first amended complaint. Plaintiff filed a consolidated opposition to defendant’s demurrer and a motion to strike portions of the first amended complaint on July 18, 2003.
On July 24, 2003, the parties agreed to continue the hearing on defendant’s motions until August 7, 2003, because the trial court judge, Judge Damron, had disclosed that his relationship with Terry Keeley, one of plaintiff’s attorneys, may create the appearance of bias. On August 7, 2003, Judge Damron indicated that he would “recuse himself [and] request from Judicial Council an assigned judge to hear the matter.” Judge Damron therefore declined to rule on the demurrer and motion to strike.
However, on May 6, 2004, Judge Damron reassigned himself to the case. The minute order did not set any future court dates, noting that “[s]hould counsel desire to set a Status Conference, one will be calendared at the convenience of the parties.” The minute order also stated that the case was “trailing a possible trial/resolution of Charles Siller vs. Siller Brothers, Inc., case number CVCS01-1083.” Plaintiff did not take any action in response to the minute order.
Almost two years later, the trial court assigned the case to Judge Cecchettini on March 28, 2006. On March 29, 2006, plaintiff filed a motion to advance the trial date, which had yet to be set. Plaintiff argued that the case should be set for May 29, 2006, so as to avoid the bar of the five-year mandatory dismissal statute under section 583.310. (See fn. 1, ante.) On April 11, 2006, defendant filed an opposition to plaintiff’s motion to advance the trial date. On April 17, 2006, plaintiff filed his reply to defendant’s opposition.
On April 24, 2006, Judge Cecchettini denied plaintiff’s motion to advance the trial date because no trial date had ever been set in the case, since it was not yet “at issue.” The case was then assigned to Judge Golden on May 4, 2006, because Judge Cecchettini was presiding over another case in which the plaintiff was involved and had recused himself from the present action. The minute order assigning Judge Golden set May 23, 2006, as the hearing date for “Demurrer and Trial Setting.” After the hearing date, on June 2, 2006, the trial court entered its ruling on the demurrers. The court overruled the demurrers as to the first cause of action, but sustained the demurrers with leave to amend the second cause of action.
On June 7, 2006, the trial court set a status conference to be held on June 23, 2006. On June 23, 2006, the trial court set a case management and trial setting conference for July 28, 2006. On July 28, 2006, trial was set for January 22, 2007.
On November 2, 2006, defendant filed a motion to dismiss the action for failure to bring the case to trial within five years of the June 1, 2001, commencement of the action. Plaintiff filed his opposition to defendant’s motion to dismiss on November 22, 2006. On January 5, 2007, the trial court entered an order granting defendant’s motion to dismiss the action under section 583.360, subdivision (a). The order constituted both a ruling granting defendant’s motion to dismiss and an order dismissing the action in its entirety. It is from this order that plaintiff appeals.
Section 583.360 provides, “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 by this article.”
DISCUSSION
In reviewing the trial court’s dismissal of an action for failure to bring the matter to trial within five years, the appellate court applies an abuse of discretion standard. “The trial court’s discretion is not unlimited and must be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Coe v. City of Los Angeles (1994) 24 Cal.App.4th 88.)
Plaintiff contends that it was impossible for him to bring his case to trial within the statutory five-year period for three distinct reasons. First, he argues that the unavailability of judges rendered it impossible to move his case forward, and the unavailability of judges for two and a half years should have tolled the statute under section 583.340, subdivision (c). (See fn. 2, ante.) This argument finds no support in the record. As the trial court noted in its dismissal order, “no reason is shown why the other judges of the court were unavailable for the trial of the case throughout the period of over five years during which it has been pending and, even if no other judge of the court were available, at the request of the presiding judge of the court, an outside judge could have been assigned to the court by the Chief Justice.”
Although it is true that Judge Damron recused himself on August 7, 2003, he reassigned himself on May 6, 2004, because of a change of circumstances regarding plaintiff’s representation. At that time, Judge Damron invited the parties to set up a status conference, but plaintiff failed to take any action to further his case for more than two and one-half years. In contending that no judges were available for two and one-half years, plaintiff overlooks Judge Damron’s reassignment on May 6, 2004. As Howard v. Thrifty Drug & Disc. Stores (1995) 10 Cal.4th 424 notes, “[t]he burden of keeping track of the relevant dates should properly fall on plaintiffs, because it is they who have the interest, and the statutory duty under section 583.310, to timely prosecute their cases.” (Id. at p. 434) It is not the responsibility of the trial court to advance a plaintiff’s case. Should the plaintiff claim his case could not go to trial under section 583.340, subdivision (c), “[w]hat is impossible, impracticable, or futile must be determined in light of all the circumstances in the individual case . . . the critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.” (See Hill v. Bingham (1986) 181 Cal.App.3d 1, 6, italics omitted.) In the instant action, there is nothing in the record to support the contention that plaintiff did anything with his case for over two years. When plaintiff did finally make his next move, filing his motion to advance a non-existent trial date, Judge Cecchettini was assigned immediately to hear the motion. The fact that Judges Cecchettini and Golden were quickly appointed by the Judicial Council further undermines plaintiff’s claim that no judges were available for several years.
Plaintiff relies heavily on the case of Nail v. Osterholm (1970) 13 Cal.App.3d 682, for support that time in a case is tolled when no judges are available to hear the matter. However, Nail is clearly distinguishable from the instant case. In Nail, the appellate court reversed the trial court’s dismissal of plaintiff’s case because the plaintiff had done everything within his power to bring the case to trial within the five-year period. (Nail, supra, 13 Cal.App.3d 682, 688) Nail’s trial was about to begin within the statutory period, but on the first morning of the trial, the judge realized that the defendant had previously acted as his son’s doctor, which compelled Nail to file a peremptory disqualification motion. (Id. at p. 687) “[T]he judge made it clear that it was the court’s responsibility promptly to reassign the case for trial by indicating that a request would be made to the Judicial Council for the assignment of an outside judge and by dismissing the prospective jurors without taking the case off calendar.” (Ibid.) However, the trial court did not reassign the case, and 11 months later, plaintiff inquired about the delay in resetting the trial. (Ibid.) The presiding judge then responded by inexplicably setting the trial to commence about six months later, which was beyond the five-year dismissal period. (Ibid.) The appellate court reversed the trial court’s dismissal, noting that “all pretrial proceedings were completed, and the trial was scheduled to commence long before the expiration of the five-year period.” (Ibid.) Such is not the case in the present action. There was no trial date set when plaintiff moved to advance the trial date; plaintiff was not unavoidably precluded from proceeding before the five-year period expired.
Second, plaintiff contends that he was unable to bring his case to trial within five years because the case was not “at issue.” The reason the case was not “at issue” was that there was more than a two-year lapse in any action on the part of the plaintiff. Plaintiff filed an opposition to defendant’s demurrer on July 24, 2003, and then did nothing until March 24, 2006, when he sent a notice for deposition to defendant for the first time. Before that notice for deposition, plaintiff had never served any formal discovery on the defendant. In addition, the pleadings were far from being “at issue.” Defendant’s long-pending demurrers were subsequently sustained in part, and the motions to strike would not even be heard until June 7, 2006.
On March 29, 2006, plaintiff filed a motion to advance a trial date that had not yet been set. It should be emphasized that this motion was filed a mere two months before the statutory five years was due. As the dismissal order states, “The case was not at issue and did not reach a readiness for trial within five years from its inception because of a lack of diligence in its prosecution.” Plaintiff incorrectly contends that the unavailability of judges to hear defendants’ demurrers and motions to strike the first amended complaint in 2003 was the reason the case was not “at issue.” We disagree. As discussed above, we find that there is no evidence to support plaintiff’s contention that no judges were available. It is the plaintiff, not the court or the defendant, who is responsible for moving the case toward trial.
Finally, plaintiff unsuccessfully argues that his case could not come to trial within five years because it was trailing another related matter that required resolution before this case could go forward. Plaintiff cites Judge Damron’s order of May 6, 2004, which reassigned himself and noted that the case was “trailing” a possible trial/resolution of the other case, for the proposition that it was impossible for his case to go forward without resolution of the other case. We disagree with plaintiff’s interpretation of the order. As the dismissal order stated, “Nothing in that observation is tantamount to a stay order or anything else which would constitute an impediment to bringing the case to trial.” Indeed, if the plaintiff wanted a stay order, he should have filed a motion for stay of proceedings in the trial court in order to ensure that the instant case would not proceed without resolution of the other matter. The plaintiff’s lack of action resulted in a timely dismissal of his case.
Furthermore, it is rare to consider concurrent actions as a basis for tolling the five-year statute. As summarized by Union Bond & Trust Co. v. M & W Wood Working Co. (1960) 179 Cal.App.2d 673, “the decisions dealing with litigation which has this effect have found it only in a step in the same action sought to be dismissed for lack of prosecution, or in litigation involving the very basis of the action sought to be dismissed, or in other litigation between the same parties or their privies.” (Id. at 676.) There is nothing in the record to indicate that the other action plaintiff claims required resolution before continuance of the present case met the conditions for tolling.
DISPOSITION
The order of dismissal is affirmed. The defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)
We concur: DAVIS, J., ROBIE, J.