Cannon v. City of Novato

• Decision Date: 24 April 1985
• Citation: 167 Cal.App.3d 216,213 Cal.Rptr. 132
• Court: California Court of Appeals Court of Appeals
• Parties: Teresa CANNON, a minor, etc., et al., Plaintiffs and Appellants, v. CITY OF NOVATO, Defendant and Respondent. A015514.

Page 132

213 Cal.Rptr. 132

167 Cal.App.3d 216

Teresa CANNON, a minor, etc., et al., Plaintiffs and Appellants, v. CITY OF NOVATO, Defendant and Respondent.

A015514.

Court of Appeal, First District, Division 3, California.

April 24, 1985.

Review Denied July 18, 1985.

Law Offices of Michael James Moriarty, Michael James Moriarty, Kay E. Tindel, Jane Elizabeth Lovell, San Francisco, for plaintiffs and appellants.

Jonathan P. Reynolds, Russ & Reynolds, San Francisco, for defendant and respondent.

BARRY-DEAL, Associate Justice.

Appellants Teresa and Michael Cannon appeal from a dismissal of their personal injury action against respondent City of Novato and other defendants who are not parties to this appeal. Appellants contend that the trial court erred in granting respondent's motion to dismiss pursuant to Code of Civil Procedure section 583, subdivision (b), ¹ which mandates dismissal of suits not brought to trial within five years after the filing of the complaint. We affirm the judgment of dismissal.

Facts

Appellants filed their complaint on April 14, 1976, and all defendants had answered by December 20, 1976. The parties engaged in discovery activities, which on appellants' part consisted of propounding five identical sets of interrogatories in September 1976 to the various public entity defendants. During the period between April 1976 and April 1979, defendants brought several motions challenging the sufficiency of the complaint and praying for summary judgment. From April 1979 to December 1980, a period of approximately 20 months, appellants were completely inactive. In December 1980 they filed their first at-issue memorandum and noticed a motion for December 29 to advance the case for trial on the ground that the five-year period would soon expire. The motion to advance the matter on the civil active list was granted, and a mandatory trial setting conference was set for February 4, 1981, with an order to set the trial no later than April 14, 1981, the last day of the five-year period. In January appellants noticed depositions and took two depositions in February 1981.

At the trial setting conference on February 4, 1981, the trial court ordered the parties to arbitrate pursuant to Code of Civil Procedure section 1141.11, which provides for judicial arbitration upon a finding that the amount in controversy does not exceed $15,000. The arbitrator's award denying appellants' claim, was filed on June 15, 1981. On June 19, 1981, appellants rejected the arbitrator's award and moved to advance the trial date. Appellants stated in the motion to advance that the trial must be set prior to October 16, 1981, in order to meet the five-year limitation contained in section 583, subdivision (b).

On June 29, 1981, the court clerk gave notice that the mandatory settlement conference would be held September 21, 1981, and trial was set for October 5, 1981. The failure of appellants to submit a settlement conference statement within 10 days prior to the scheduled settlement conference date resulted in the court ordering the matter off calendar. Appellants then filed another motion to advance the case for trial; respondent concurrently filed its motion to dismiss pursuant to Code of Civil Procedure section 583, subdivision (b). Respondent's motion to dismiss was heard on September 25, 1981, and on September 28, 1981, the court granted respondent's motion and took appellants' motion to advance off calendar.

Discussion

Appellants contend that it was impossible and impracticable for them to bring the action to trial prior to the expiration of the five-year period mandated by section 583, subdivision (b).

Section 583, subdivision (b), at the time of dismissal provided: ² "(b) Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his [or her] action, except where the parties have filed a stipulation in writing that the time may be extended."

Appellants filed their complaint on April 14, 1976, so the original five-year limitation date would have been April 14, 1981. However, because the parties were ordered into arbitration by the trial court, the five-year period under section 583, subdivision (b), was tolled under section 1141.17, which provides: "Submission of an action to arbitration pursuant to this chapter shall not toll the running of the time periods contained in Section 583 as to actions filed on or after the operative date of this chapter. Submission to arbitration pursuant to a court order within six months of the expiration of the statutory period shall toll the running of such period until the filing of an arbitration award." ³

At the time the parties were ordered into arbitration, February 4, 1981, 69 days remained until the original five-year period would expire. The section 583, subdivision (b), period was tolled until the date the arbitration award was filed, June 15, 1981. The new section 583, subdivision (b), dismissal date was thus extended to August 23, 1981, 69 days after the filing of the arbitration award.

Counsel for appellants miscalculated the extension under section 1141.17 and informed both the court and opposing counsel that the section 583, subdivision (b), limitation period would expire on October 16, 1981. The court clerk complied with appellants' request and assigned a court date prior to October 16.

Section 583, subdivision (b), will not be applied in cases where, due to circumstances beyond the party's control, it was impossible, impracticable, or futile to bring the case to trial during the five-year period. (Bennett v. Bennett Cement Contractors, Inc. (1981) 125 Cal.App.3d 673, 676, 178 Cal.Rptr. 633; see also Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216. ⁴ ) In determining whether section 583, subdivision (b), should be applied to dismiss a case, the courts look to (1) the circumstances beyond plaintiffs' control which prevented trial within five years, and (2) whether the plaintiffs pursued the suit diligently. (Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 546, 105 Cal.Rptr. 339, 503 P.2d 1347; Brown v. Engstrom (1979) 89 Cal.App.3d 513, 521, 152 Cal.Rptr. 628; Bennett v. Bennett Cement Contractors, Inc., supra, 125 Cal.App.3d at pp. 676-677, 178 Cal.Rptr. 633; Moran v. Superior Court, supra, 35 Cal.3d at p. 238, 197 Cal.Rptr. 546, 673 P.2d 216; Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 134, 138, 199 Cal.Rptr. 295.) A determination by the trial court that the plaintiff has had a reasonable opportunity to bring the case to trial will not be disturbed if there is substantial evidence to support it. (Bennett, supra, 125 Cal.App. at p. 677, 178 Cal.Rptr. 633.)

Appellants contend that their failure to bring the suit to trial prior to August 23, 1981, is due to the court's error in setting the trial date and that, once appellants moved to set the case for trial, they were entitled to assume that the court would perform its official duty by assigning a trial date within the five-year period mandated by section 583, subdivision (b).

The line of cases culminating in Moran does provide a remedy to those plaintiffs who, despite their diligence, were unable to bring their cases to trial because the courts or other officials impeded progress of the suits. (Karubian v. Security Pacific Nat. Bank, supra, 152 Cal.App.3d at p. 138, 199 Cal.Rptr. 295.) In Bennett, the trial date was delayed by continuances made on the court's own motion due to lack of courtroom space or an available judge. (Bennett v. Bennett Cement Contractors, Inc., supra, 125 Cal.App.3d at p. 677, 178 Cal.Rptr. 633.) The Brown suit was delayed by an arbitration administrator. (Brown v. Engstrom, supra, 89 Cal.App.3d at p. 524, 152 Cal.Rptr. 628.) In Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686, 91 Cal.Rptr. 908, trial was delayed when the court failed to reassign the case to a new judge. The Moran case was delayed after the court clerk mistakenly sent the file to storage. (Moran v. Superior Court, supra, 35 Cal.3d at p. 236, 197 Cal.Rptr. 546, 673 P.2d 216.) When official duty has not been performed and it is thereby impossible to bring the case to trial within the section 583, subdivision (b), deadline, 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. (Id., at p. 242, 197 Cal.Rptr. 546, 673 P.2d 216.)

Appellants have failed to show that they relied on the performance of official duty to obtain a timely trial date. Counsel for appellants asked the court for a date prior to October 16 and were promptly provided with a trial date within that time. A party's inadvertence in selecting a trial date does not constitute impossibility or impracticability under section 583, subdivision (b), because it is the party's duty to keep track of such crucial dates. (State of California v. Superior Court (1979) 98 Cal.App.3d 643, 649-650, 159 Cal.Rptr. 650.) "The burden is upon the plaintiff to call to the attention of the court the necessity for setting the trial for a time within the period fixed by [section 583]. [Citation.]" (Steinbauer v. Bondesen (1932) 125 Cal.App. 419, 426, 14 P.2d 106.) If the plaintiff could have acted to bring the case to trial on time and failed to do so, relief will not be given even if the plaintiff claims to have relied on the performance of an official duty. (Karubian v. Security Pacific Nat. Bank, supra, 152 Cal.App.3d at p. 140, 199 Cal.Rptr. 295.) The court had no duty to check appellants' calculations for error before assigning the requested trial date. Therefore, because the delay in going to trial was caused by appellants' own...