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INTRODUCTION
Defendant argues in support of his motion to dismiss that the five-year statute cannot be tolled on grounds of impossibility, impracticability or futility (Code of Civil Procedure §583.340(c)) unless the plaintiff demonstrates diligence throughout the five-year period. Specifically, defendant contends that, regardless of any period of impossibility, impracticability or futility, the five-year period cannot be tolled if sufficient time remained thereafter to bring the case to trial. As a sort of corollary to this supposed rule, defendant cites cases allegedly holding that any recognized period of impossibility, impracticability or futility must have "caused" the failure to bring the case to trial within five years in order for the period to be tolled. This is merely another way of arguing that a period of impossibility, etc. will not toll the statute if sufficient time remained thereafter.
Defendant's arguments are simply wrong. When the legislature added Code of Civil Procedure §583.340(c) to the code in 1984 (thereby codifying the judicially-created "impossible, impracticable or futile" rule), they made it absolutely clear that the five-year statute is tolled for any such period regardless of when in the five-year period it occurred. When this correct rule is applied, it is plain that the five-year period has not expired in the present case.
ARGUMENT
1. The five-year statute is tolled during any period of impossibility, impracticability or futility.
Before the "impossible, impracticable or futile" rule was codified, some cases rejected any such excuse as a ground for tolling the five-year statute "where, although there was a period of impracticability, a reasonable time remained after that period to bring the action to trial." 6 Witkin, Cal. Procedure (3rd ed. 1985) "Proceedings Without Trial" §142, at 447. When §583.340(c) was enacted in 1984, such cases were expressly repudiated. The Law Revision Commission Comment on §583.340 states in relevant part:
Subdivision (c) codifies the case law "impossible, impractical, or futile" standard. The provisions of subdivision (c) must be interpreted liberally, consistent with the policy favoring trial on the merits . . . . [Para.] Under §583.340 the time within which an action must be brought to trial is tolled for the period of the excuse, regardless whether a reasonable time remained at the end of the period of the excuse to bring the action to trial. This overrules such cases as State of California v. Superior Court, 98 Cal.App.3d 643, 159 Cal.Rptr. 650 (1979), and Brown v. Superior Court, 62 Cal.App.3d 197, 132 Cal.Rptr. 916 (1976).
The Commission's "Revised Recommendation Relating to Dismissal for Lack of Prosecution," 17 Cal. Law Rev. Comm. Reports 905 (1984) explains the change in even greater detail:
Under existing law the time during which an action must be brought to trial may be tolled during periods when it would have been impossible, impracticable, or futile to bring the action to trial. However, if the impossibility, impracticability, or futility ended sufficiently early in the statutory period so that the plaintiff still had a "reasonable time" to get the case to trial, the tolling doesn't apply. The proposed law changes this rule so that the statute tolls regardless when during the statutory period the excuse occurs.
Id., at 918-919 (footnotes omitted).
Since §583.340's enactment, the courts have recognized that the law was changed. In Rose v. Scott (1991) 233 Cal.App.3d 537, an action was set for trial but then trailed from day to day and was eventually continued because no courtroom was available. Shortly before the new trial date, the plaintiffs moved to amend the complaint. The court granted the motion on condition that the plaintiffs drop the case from the civil calendar. They dropped the case from the calendar, but did not file the amended complaint until more than two years later. The trial court eventually dismissed the action for failure to bring it to trial within five years, but the appellate court reversed. The defendants argued that the statute should not be tolled for the period when a courtroom was unavailable because that was during the second year of the five-year period and the plaintiffs had unreasonably delayed thereafter in filing their amended complaint. The court rejected this argument outright:
There is case law which supports defendants' argument that the excuse is inapplicable where, although there was a period of impossibility or impracticability, a reasonable amount of time remained after that period to bring the case to trial. [Citations] However, the law has changed with the enactment of §583.340, subdivision (c). Id., at 542.
In Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, the trial court dismissed the case for failure to bring it to trial within five years. The appellate court reversed, holding that the five-year statute was tolled during a 14-month period when a settlement agreement was in effect. The defendant argued that the statute should not be tolled because the plaintiff "failed to move the case to trial in the two-year period after the agreement expired but before the five-year period lapsed." Id., at 256. The appellate court summarily rejected the argument. "[E]ven if a reasonable time remained to bring the case to trial after expiration of the agreement, the five-year period is nevertheless tolled for the period the agreement was in effect." Id., at 257.
Defendants' "diligence" argument is based on cases that were addressing a very different issue. Diligence remains the "critical factor," not in deciding whether a period of impossibility, impracticability or futility should toll the statute, but in deciding whether, during any given period, it was in fact impossible, impracticable or futile to advance the case. For example, one of the cases on which defendants rely is Brown & Bryant, supra. Brown & Bryant stated that whether the plaintiff exercised reasonable diligence in prosecuting the case is the "critical factor" in determining "[w]hat is impossible, impracticable or futile." Id., 24 Cal.App.4th at 251. The court's statement plainly does not mean that lack of diligence during one part of the five-year period will preclude tolling based on impossibility, impracticability or futility that existed during another part of the period, because the court later held that failure to bring the case to trial in the two years remaining after the settlement agreement expired would not prevent tolling for the 14 months the agreement was in effect. Id., at 256-257.
Another good example of the distinction is Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, the case on which defendants most heavily rely. An earlier supreme court decision had held that, after judicial arbitration, the five-year statute would automatically be tolled from the date a trial de novo was requested until the new trial date set by the court. Id., at 432-433. The Howard court reconsidered that decision and modified the rule. It held that tolling during that period would not be automatic because it was plaintiff's burden to keep track of relevant dates and inform the court if the end of the five-year period was approaching. Id., at 434. The court concluded: "If the trial court fails to correctly calendar or recalendar the case after having been properly notified, only then will the action be tolled under §1141.20 from the date of the trial de novo request until the date of the new trial." Id., at 435. Because the plaintiff did not inform the trial court of the impending five-year deadline, or attempt to have a trial date set immediately after the defendant's trial de novo request, the five-year statute continued to run after the trial de novo request was made. Ibid.
The Howard court did not hold that a period of impossibility, impracticability or futility existed, and then refuse to toll the statute for that period because the plaintiff later failed to act with diligence. Rather, it examined the plaintiff's diligence (i.e., whether it informed the court of the impending five-year deadline, whether it attempted to have a trial date set immediately after the trial de novo request, etc.) in order to determine whether the period after the trial de novo request was in fact one in which it was impossible, impracticable or futile to bring the action to trial. Howard cannot be used to revive the old "sufficient time remaining" rule.
Defendants attempt to buttress their "diligence" argument by asserting that a period of impossibility, impracticability or futility must have "caused" the failure to bring the case to trial within five years in order for the statute to be tolled for that period. For example, they suggest that the inability to find a judge to hear defendants' demurrers in 1991 cannot toll the statute because it happened so early in the five-year period. Defs. Reply P's & A's, 9:21-10:10. Again, defendants have misconstrued the cases on which they rely.
The first case to discuss "causation" in connection with §583.340(c) was Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, where the plaintiffs argued that the statute should be tolled because of their attorney's periodic illness during two years of the five-year period. The court concluded that there was no causal relationship between the illness and the claimed impossibility, and directed that the action be dismissed for failure to bring it to trial within five years.
Exactly what the Sierra Nevada court meant was made clear in New West Fed. Sav. & Loan Assn. v. Superior Court (1990) 223 Cal.App.3d 1145. The court considered the relationship between the codified "impossible, impracticable or futile" rule in §583,340(c), which requires that the statute be tolled for any such period no matter when during the five years it occurred, and Sierra Nevada's discussion of causation. It concluded that "while Sierra Nevada did discuss causation principles, said principles were deemed applicable only with respect to whether the claimed disability due to illness constituted impracticability in the first instance. It did not hold that the period of impracticability had to be the cause for not bringing the case to trial on time." Id., at 1155-1156.
In sum, the legislature and the Law Revision Commission have made it clear that the five-year statute must be tolled for any period of impossibility, impracticability or futility, no matter when in the five-year period it occurred. Defendant cannot evade this clear rule by invoking "diligence" and "causation" arguments taken from other contexts.
2. The five-year statute has not run in the present case.
Defendant agrees that the five-year statute was tolled for 385 days, even though her appeal from the court's order denying a motion to compel arbitration was pending. But defendant contends that is the only tolling period and that the five-year statute ran on October 17, 2001. Ibid. In fact, several other tolling periods extend the five-year statute. Consideration of just one of them demonstrates that the five-year statute has not yet run.
The complaint in this case was filed on September 27, 1996. After being served, defendant filed a demurrer that was set for hearing on January 14, 1997. But no judge was available to hear the demurrer, because both law and motion judges and the presiding judge recused themselves. It was not until May 23, 1997, that the matter was assigned to an out-of-county judge.
In Hartman v. Santamarina (1982) 30 Cal.3d 762, the defendant challenged the judge assigned to the case under Code of Civil Procedure §170.6, and the plaintiff then challenged that judge's replacement. Another judge was not assigned until approximately 11 months later. After the trial court dismissed for failure to bring the case to trial within five years, the supreme court reversed. It held that "the period that the trial is held in abeyance pending the assignment of another judge is to be disregarded in considering a subsequent motion to dismiss." Id., at 768, quoting from Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686.
The disqualifications in Hartman are not materially different from the refusals in the present case. Until the matter was assigned to an out-of-county judge who would hear the demurrer, the case was effectively on hold. Plaintiff's inability to act was similar to that of a plaintiff after a defendant's default had been entered. In Vanyek v. Heard (1971) 18 Cal.App.3d 467, the defendant's default was entered and there was nothing further that the plaintiff could do, other than procure entry of the default judgment, until the default was set aside. When, years later, the trial court dismissed for failure to bring the case to trial within five years, the appellate court reversed. The five-year statute was tolled from the date the default was entered to the date it was set aside:
There were no other steps he reasonably could have been expected to take during the period in which the default was effective, except getting the judgment entered. Since any other proceedings were then impractical, it appears that the entire time from the date of entry of default . . . until the default judgment was set aside . . . must be excluded in computing the five-year period under Code of Civil Procedure §583.
Id., at 471.
Because plaintiffs could take no steps to advance the case from the time the local county judges recused themselves until an out-of-county judge was assigned to hear the demurrer, that entire period must be excluded in computing the five-year period. Adding that period of more than four months (from before January 14, 1996 to May 23, 1996) to the 385 days that the statute was tolled although defendants' appeal was pending means that the five-year period has not yet run.
CONCLUSION
Because the five-year statute was tolled, defendant's motion to dismiss should be denied.