Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CPF-04-504840
Pollak, Acting P. J.
Plaintiff Austin Wilson appeals from a judgment dismissing his petition for writ of mandamus entered after he failed to bring the matter to trial within five years as mandated by Code of Civil Procedure section 583.310. Like the trial court, we conclude that defendant’s lodging of the administrative record and filing of his opening brief on the last day of the five-year period does not constitute bringing the proceedings to trial as required by section 583.310. Accordingly, we shall affirm the judgment.
All statutory references are to the Code of Civil Procedure.
Background
On December 20, 2004, plaintiff, appearing in propria persona, filed a petition for writ of mandamus seeking review of the denial of his application for disability retirement benefits by the Retirement Board of the San Francisco Employees’ Retirement System (hereafter the Board). His petition alleged that he worked as a transit operator from 1979 until 1993, when he suffered a work-related injury. His application for disability retirement benefits was denied in July 1995 and a petition for rehearing was denied in August 2004.
In December 2006, plaintiff hired an attorney who apparently caused the petition to be served and shortly thereafter the Board filed a timely answer to the petition. No additional activity occurred in the matter until December 21, 2009, when plaintiff lodged the administrative record and filed a notice of motion for peremptory writ of mandamus or alternatively trial on the writ of mandamus, accompanied by points and authorities, and noticed the hearing on the motion for January 22, 2010.
On January 8, 2010, the Board filed a motion for mandatory dismissal under section 583.310. A hearing on the motion was set for February 23, 2010, and plaintiff’s motion was continued to the same date. At the February hearing, the Board’s motion for dismissal was granted and plaintiff’s motion was taken off calendar as moot. An order dismissing the action was filed on March 26, 2010. Plaintiff filed a timely notice of appeal.
Discussion
Section 583.310 requires that “An action shall be brought to trial within five years after the action is commenced against the defendant.” Although a petition for administrative mandamus is a special proceeding rather than a “civil action, ” that fact “does not... place it beyond the reach of dismissal for delay in prosecution.” (Binyon v. State of California (1993) 17 Cal.App.4th 952, 955.)
Section 583.310 “ ‘only requires that the action be brought to trial within the five-year period, and places no limitation upon when the trial shall be completed.’ [Citation.] Thus, once trial commences, the statute no longer applies, ‘even though the proceedings amount only to a partial hearing.’ ” (In re Marriage of MacFarlane & Lang (1992) 8 Cal.App.4th 247, 253-254.)
In this case, the five-year deadline for bringing the matter to trial was December 21, 2009, the same day on which plaintiff filed his motion and supporting papers and lodged the administrative record with the court. In opposition to the Board’s motion to dismiss, plaintiff’s attorney submitted a declaration explaining the delay. He reported that while the present action was pending, he was also representing plaintiff in an appeal from an order of the Social Security Administration denying plaintiff’s application for disability benefits. He had hoped to obtain a favorable judgment in that appeal and use it to convince the Board “to reconsider [its] prior decision and grant [plaintiff] his disability retirement benefits.” However, the other appeal proceeded very slowly and in October 2009, when he realized that the decision was unlikely to be made before the five-year anniversary in the present case, he initiated efforts to obtain the administrative record and filed his motion “as soon as possible and practicable.”
Plaintiff makes no argument that the five-year period was tolled under section 583.340, subdivision (c). Under that provision the five-year period in which to bring an action to trial may be tolled when bringing the action to trial “was impossible, impracticable, or futile.” “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.” (Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 251, citing Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532 [“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.”].) We agree with plaintiff’s implicit acknowledgement that the facts here do not support tolling under this provision. It is undisputed that plaintiff made no attempt to bring the action to trial for four years and nine months. If resolution of the action against the Social Security Administration was truly critical to the present action, counsel could have requested a stay of the proceedings or sought a stipulation from the Board extending the five-year period. (§ 583.330.) Having failed to do so, there was no reason why plaintiff could not have obtained the administrative record and brought the matter on for hearing well before December 2009.
Thus, the sole question on appeal is whether the court filings on December 21 were sufficient to commence the trial. The requirement that the case be brought to trial within five years for purposes of the five-year statute “means that the trial must have been actually begun.” (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 374, p. 817, citing Boyd v. Southern Pac. R. Co. (1921) 185 Cal. 344, 346 [“the meaning of the expression ‘brought to trial’ seems to us too plain to be in doubt. The trial of an action and the setting of it for trial are quite distinct things, and an action is certainly not brought to trial until the trial is commenced”]; see also Katleman v. Katleman (1959) 175 Cal.App.2d 493, 496-497 [a case is brought to trial if it has been assigned to a department for trial, it is called for trial, the attorneys have answered that they are ready for trial, and proceedings begin].) If “ ‘[a] “trial” is the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties, ’ ” then, “an action has been brought to trial if there ‘is a trial of issues of fact with the purpose of determining the case on the merits.’ ” (In re Marriage of MacFarlane & Lang, supra, 8 Cal.App.4th at pp. 253-254.) “In determining whether a trial has commenced, ‘[the] essential thing is that the action be brought to a stage where final disposition is to be made of it.’ ” (Hendrix v. Hendrix (1985) 171 Cal.App.3d 859, 862; see also Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, *2.)
The parties have not cited, nor have we located, authority establishing when a trial on a petition for writ of mandamus commences for this purpose Although the administrative mandamus proceedings were dismissed in Binyon v. State of California, supra, 17 Cal.App.4th 952 for failure to bring the matter to trial within five years, in that case the plaintiff did not even serve the petition on the respondent until after the five-year period had elapsed. It is well established, however, that ordinarily a nonjury trial does not commence with pretrial activity such as the filing of motions or the setting of the trial date. (Kadota v San Francisco (1958) 166 Cal.App.2d 194-195 [“The cases are clear that where the trial is before the court, without a jury, the action is not ordinarily ‘brought to trial’ until at least one witness is sworn and gives some testimony”]; see also Ravn v Planz (1918) 37 Cal.App. 735 [trial had not commenced within the meaning of predecessor to section 583.310 even though case had been put on the calendar for trial and the plaintiff had appeared in court with his counsel and witnesses ready to proceed before the action was continued].)
Plaintiff contends that due to the special nature of a writ proceeding, trial commences with the lodging of the administrative record and filing of the moving papers. He argues that lodging the administrative record is equivalent to the presentation of evidence and that his moving papers “are de facto beginnings of the closing argument.” In Bevli v. Brisco (1985) 165 Cal.App.3d 812, 820, the court recognized that “proceedings on petitions for writ of administrative mandamus are unique because... the trial ordinarily consists of introducing all or portions of the administrative record into evidence, reading and considering same, listening to the arguments of counsel and then either ruling directly from the bench at the conclusion of argument or... submission of the matter for further consideration and ultimate issuance of a statement of intended decision.” The court recognized the “operative reality” that the trial sometimes commences in advance of the actual hearing on the writ petition. (Ibid.) “It is not untypical for administrative mandamus proceedings to be handled in this manner where after the judge knows that the case is going to be assigned to him he will begin the informal process of reading the administrative record. This ordinarily constitutes the trial of the action from an evidentiary standpoint, with the express or tacit understanding with counsel that when they later begin to argue the case that they will formally place on the record and into the record the evidence in the form of the administrative transcript and exhibits considered by the administrative hearing officer.” (Id. at p. 821.)
While it may be that in some situations proceedings leading to determination of the disputed issues in a mandate proceeding are begun before the formal introduction of the record at a hearing on the petition, merely lodging the record and noticing the matter for hearing do not constitute the commencement of trial in any sense. Lodging the record does nothing to ensure when, if ever, the matter will be considered. (Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328 [“ ‘ “[T]he purpose of the [five-year] statute is ‘to prevent avoidable delay for too long a period.” ’ ”].) The record could well be lodged months if not years before the matter is brought to the attention of a judge and trial actually occurs. Likewise, although plaintiff’s moving papers identify the issues to be decided, their filing does not commence an examination of the evidence or consideration of the legal issues by the court. Here, it is clear that no judge, formally or informally, began the consideration of plaintiff’s petition before the expiration of the five-year period. That period expired on the very day plaintiff served and filed his papers. No matter how fast one assumes that papers are transmitted within the court, as of the expiration of the five-year period no opposition papers had been filed by the respondent, so the court was in no position to begin its consideration of the case. Clearly the proceedings had not been “brought to a stage where final disposition [was] to be made.” (Hendrix v. Hendrix, supra, 171 Cal.App.3d at p. 862.)
Plaintiff’s suggestion that trial of a writ petition commences with the lodging of the record and noticing of a hearing would have unintended collateral implications. For example, a plaintiff would be precluded from voluntarily dismissing the petition without prejudice well before the matter came before the court. (See § 581, subd. (b) [“An action may be dismissed in any of the following instances: [¶] (1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.”].) Likewise, even if the hearing on the petition consumed no more than an hour, the parties would have 10 days in which to request a statement of decision because the trial was deemed to commence when the papers were filed long before the hearing. (See § 632; Bevli v. Brisco, supra, 165 Cal.App.3d 812.)
Thus, there was no error in dismissing the proceedings for failure to bring the matter to trial within five years. Plaintiff “cannot file a petition for writ of administrative mandamus, then sit back for years without taking the slightest action to have it determined until it suits his convenience, and then expect that the court must hear his petition on the merits despite his lack of diligence.” (Binyon v. State of California, supra, 17 Cal.App.4th at p. 957.)
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.