Barna v. Passage 3 Canon

• Decision Date: 15 October 1986
• Citation: 186 Cal.App.3d 440,230 Cal.Rptr. 764
• Court: California Court of Appeals Court of Appeals
• Parties: Nancy M. BARNA, doing business as Nanci's Nuts, Plaintiff and Appellant, v. PASSAGE 350 CANON, a joint venture, Phoenix Mottura & Associates, Inc., a California Corporation, and Paris Moskopoulos, doing business as Paris Realty Company, Defendants and Respondents. B017910.

Page 764

230 Cal.Rptr. 764

186 Cal.App.3d 440

Nancy M. BARNA, doing business as Nanci's Nuts, Plaintiff and Appellant, v. PASSAGE 350 CANON, a joint venture, Phoenix Mottura & Associates, Inc., a California Corporation, and Paris Moskopoulos, doing business as Paris Realty Company, Defendants and Respondents.

B017910.

Court of Appeal, Second District, Division 7, California.

Oct. 15, 1986.

[186 Cal.App.3d 442] Pamela A. Withey, Pasadena, for plaintiff and appellant.

Richard Pech, Beverly Hills, and Robert J. Buscho, Los Angeles, for defendants and respondents.

THOMPSON, Associate Justice.

Plaintiff appeals from a judgment of dismissal entered upon an order made pursuant to sections 583.310 and 583.360 of the

                Code of Civil Procedure. 1  The two issues presented by this appeal are:  whether, [186 Cal.App.3d 443] once a timely request for trial de novo has been made following court-ordered arbitration, section 1141.20 requires the case to be recalendared for trial by the court, sua sponte, in the same place it had prior to arbitration;  and whether the five-year statute ( § 583.310), under these circumstances, remains tolled until the new trial date is set by the court.  Because we answer in the affirmative, we will reverse
                

FACTS

The facts are not in dispute. On May 21, 1980, plaintiff, a former tenant in a commercial shopping center, filed an action for damages for misrepresentation and breach of a commercial lease against defendants, the lessor and real estate broker. The parties conducted extensive discovery.

On December 1, 1981, the at-issue memorandum was filed. Subsequently, on October 6, 1982, the court held a trial setting conference. At that time, the judge set a trial date of April 13, 1983. At the request of the parties, the trial date was continued twice and finally set for February 15, 1984. During this period, plaintiff substituted out her attorney of record on June 1, 1983, and elected to proceed in pro per.

At the mandatory settlement conference held on February 15, 1984, the trial court determined that the amount in controversy did not exceed $25,000, vacated the trial date, and ordered the case into arbitration.

The case went to arbitration. Following a full hearing, on August 7, 1984, the arbitrator filed his award in favor of the plaintiff, and against the defendants, in the sum of $20,600. On August 17, 1984, the defendants filed their request for a trial de novo.

Not having heard from either the defendant or the court following the filing of the request for trial de novo, the plaintiff, starting in November 1984, made a number of contacts with the superior court clerk's office by telephone. At first, she sought information about whether there was any action to set her case for trial. Later, she requested that the case be given the same position on the calendar it had before arbitration. On each of these occasions, the clerk informed the plaintiff that she would be notified.

Subsequently, in July 1985, the plaintiff was notified by the clerk's office that on July 12, 1985, the court ordered the trial setting conference set on August 5, 1985. Prior to the trial setting conference, however, the defendants filed a notice informing the plaintiff and the court that their appearance at the conference would not constitute a waiver of their rights under the dismissal statutes. On August 5, 1985, the court held the trial setting conference and set the trial date for November 18, 1985.

On August 16, 1985, defendants filed a noticed motion to dismiss pursuant to sections 583.310 and 583.360 on the ground the plaintiff had failed to prosecute the action and to bring it to trial within five years from the date that it was filed. The plaintiff filed opposition to the motion, contending that the matter was primarily controlled by Moran v. Superior Court (1983) 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216. The motion was heard on October 11,

1985, at which time the court granted the motion and entered an order of dismissal from which the plaintiff appeals.

DISCUSSION

Plaintiff contends that the five-year dismissal statute was tolled during the period of time between the date the arbitration award was filed with the court and the date set for the new trial and thus the dismissal of her case is premature. We find this contention meritorious.

A. The Moran Decision

Under facts strikingly similar to the facts here, our Supreme Court was called upon in Moran v. Superior Court, supra, 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216, to determine the propriety of an order of the trial court refusing to dismiss the plaintiff's case on the ground the action had not been brought to trial within five years. ( § 583, subd. (b).) The Supreme Court concluded that the trial court properly refused to dismiss the action under section 583, subdivision (b), for two independent reasons. First, the Supreme Court determined that the plaintiff had pursued her action with reasonable diligence, thus making the exception of impossibility available to excuse the application of the five-year statute.

Second, the Supreme Court determined that a dismissal of plaintiff's action would have been premature because the time from filing the arbitration award until the new trial date is excluded in calculating the five-year limit. In making this determination, the Supreme Court had to construe a part of section 1141.20. That part provides: "Such trial shall be calendared, insofar as possible, so that the trial shall be given the same place on the active list as it had prior to arbitration, or shall receive civil priority on the next setting calendar." The Supreme Court held that this section imposes a duty on the trial court sua sponte to recalendar the trial in " 'the same place ... it had prior to arbitration.' " (35 Cal.3d at p. 241, 197 Cal.Rptr. 546, 673 P.2d 216.) Moreover, "in order to ensure that the plaintiff will retain the benefit of the amount of time remaining in the five-year period when the case went into arbitration," the Supreme Court also held that the "period will remain tolled until the new trial date set by the court." (Ibid.) The Supreme Court reasoned, citing Hartman v. Santamarina (1982) 30 Cal.3d 762, 180 Cal.Rptr. 337, 629 P.2d 979, ² that a plaintiff has a right to assume that the court will perform its duty so that the new trial date will stand in the same relation to the end of the five-year period as it originally did. (Moran, supra, 35 Cal.3d at p. 242, 197 Cal.Rptr. 546, 673 P.2d 216.)

In short, the Supreme Court concluded that, where, as here, "a defendant seeks a trial de novo after arbitration, the trial court should give the matter priority and assign it the earliest possible trial date. The time between the date the arbitration award is filed with the court and the date set for the new trial is to be excluded from calculation of the five-year period of section 583(b). This rule will ensure that the postarbitration trial date retains the same place in relation to the end of the five-year period as was held by the original trial date." (Id., at p. 242, 197 Cal.Rptr. 546, 673 P.2d 216.)

We find that the tolling decision of Moran is consistent with, and supportive of, the declared legislative purposes of judicial arbitration which are set forth in section 1141.10. We reach this conclusion because we are unable to find in these legislatively expressed purposes the notion that the arbitration process should be used to facilitate the use of the five-year mandatory dismissal statute in order to terminate litigation. Nonetheless, some defendants treat the court-annexed arbitration alternative as an opportunity to enhance this possibility. Courts therefore must be constantly alert that they are not part of this misguided endeavor, but rather are jealous guardians of the true purposes of judicial arbitration, especially in the situation, like Moran, where the defendant seeks a trial de novo after arbitration.

B. Applicability of Moran

In cases subsequent to Moran, courts have readily applied the Moran rule in factual situations similar to the instant case. (See, e.g., Ward v. Levin (1984) 161 Cal.App.3d 1026, 208 Cal.Rptr. 312; Paul E. Iacono Structural Engineer, Inc. v. Rizzo (1984) 162 Cal.App.3d 803, 208 Cal.Rptr. 787.) Nonetheless, defendants argue that legislative amendments to section 1141.17 ³ were intended to supersede the Moran rule. They assert that section 1141.17, as amended effective January 1, 1984, was intended by the Legislature to be the only provision suspending the running of the five-year statute.

In a well-reasoned decision by Division Three of this court, this argument was considered and rejected in Hughes v. Southern Cal. Rapid Transit Dist. (1985) 173 Cal.App.3d 512, 219 Cal.Rptr. 82. In concluding that section 1141.17, as amended effective January 1, 1984, did not supersede the Moran rule, the Hughes court correctly reasoned: "[T]he Moran rule is premised on section 1141.20, not section 1141.17. In 1984, after the Supreme Court's decision in Moran, the Legislature amended section 1141.20. The amendment did nothing to change the statutory language relied on by the Moran court in developing the Moran rule. [See Hughes v. Southern Cal. Rapid Transit Dist., supra, 173 Cal.App.3d at p. 516, fn. 4, 219 Cal.Rptr. 82.] Without subsequent statutory language to the contrary, the Moran rule remains valid. [Fn. omitted.]" (Id., at p. 517, 219 Cal.Rptr. 82.)

C. Applicability of Reasonable Diligence

Defendants further argue, citing Hill v. Bingham (1986) 181 Cal.App.3d 1, 225 Cal.Rptr. 905, that, in order for a court's sua sponte duty to arise to recalendar a matter once a timely request for trial de novo is filed, a plaintiff must still exercise reasonable diligence in bringing his case to trial.

Defendants' reliance on Hill v. Bingham, however, is misplaced. Unlike here, the plaintiff there failed to bring the matter to anyone's attention, the trial setting conference...