Howard v. Thrifty Drug & Discount Stores

• Decision Date: 15 June 1995
• Docket Number: No. S035703,S035703
• Court: California Supreme Court
• Parties: , 895 P.2d 469 Arkita L. HOWARD, Plaintiff and Appellant, v. THRIFTY DRUG AND DISCOUNT STORES, Defendant and Respondent.

Page 362

41 Cal.Rptr.2d 362

10 Cal.4th 424, 895 P.2d 469

Arkita L. HOWARD, Plaintiff and Appellant, v. THRIFTY DRUG AND DISCOUNT STORES, Defendant and Respondent.

No. S035703.

Supreme Court of California In Bank.

June 15, 1995.

Errol J. Gordon, Los Angeles, for plaintiff and appellant.

Lynberg & Watkins, Charles A. Lynberg and Hellar Ann Hancock, Los Angeles, for defendant and respondent.

MOSK, Justice.

In this case, we revisit our decision in Moran v. Superior Court (1983) 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216 (Moran ) to reconsider the relationship between the Judicial Arbitration Act (CODE CIV.PROC., § 1141.10¹ et seq.) and the statute requiring that an action be dismissed if it has not been brought to trial five years after filing the complaint. (§ 583.310.) ² In Moran we construed the meaning of section 1141.20, which requires trial courts to recalendar a case after arbitration "so that the trial shall be given the same place on the active list as it had prior to arbitration...." In order to enforce this statutory mandate, we held that after a trial de novo is requested following the filing of an arbitration award "[t]he 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) [now section 583.310]." (Moran, supra, 35 Cal.3d at p. 242, 197 Cal.Rptr. 546, 673 P.2d 216.) As will appear, we conclude that our holding in Moran must be read in the manner now apparently agreed upon by the Courts of Appeal: the five-year statute will be tolled in the post-arbitration period only if a plaintiff timely notifies the trial court of the date that statute is due to expire and requests that the trial be scheduled before that date. Plaintiff did not exhibit such minimal diligence in this case, and hence cannot benefit from the tolling provisions implicit in section 1141.20. We also find, however, that the trial court in this case erred in calculating the expiration of the five-year period and therefore erroneously dismissed the case on mandatory grounds.

We further hold that the trial court did not abuse its discretion in denying plaintiff's motion to specially set and in dismissing the action on discretionary grounds under section 583.410. Although a trial court should use such post-arbitration motions to specially set as a means of rectifying its failure to calendar or recalendar a case for trial pursuant to section 1141.20, the action may nonetheless be subject to discretionary dismissal when the plaintiff has shown unreasonable delay, either before or after arbitration, or when the defendant can show actual prejudice from the plaintiff's dilatory conduct. Here, the trial court's discretionary dismissal of this case was justified by plaintiff's significant delay in both the pre- and post-arbitration periods. We therefore affirm the judgment of the Court of Appeal dismissing this case pursuant to section 583.410.

I. Facts.

The undisputed facts tell the tale of a series of procedural errors committed by both parties and by the trial court. On May 12, 1987, plaintiff and appellant Arkita L. Howard (plaintiff) filed a complaint for personal injury and premises liability against defendant and respondent Thrifty Drug and Discount Stores (defendant) in Los Angeles Superior Court, alleging that the latter's negligence led to her being assaulted on the premises of one of defendant's stores. Defendant filed its answer on December 11, 1987.

In 1988, the parties engaged in some discovery, propounding interrogatories and requests for documents. After that, there was little activity in the case until plaintiff filed an at-issue memorandum in January of 1991, some three years and seven months after filing the complaint. Pursuant to California Rules of Court, rule 209, the case was placed on a civil active list, from which it was eligible to be calendared for trial once certain other procedural prerequisites were fulfilled. In April of 1991 the matter was assigned to judicial arbitration pursuant to section 1141.10 et seq., with a post-arbitration status conference scheduled for October 11, 1991. An arbitration was held on August 14, 1991, and on August 22, 1991, the arbitrator awarded plaintiff $30,000. That award became final on September 21, 1991, when defendant failed to request a trial de novo according to section 1141.20, subdivision (a). On October 1, 1991, the trial court entered judgment for plaintiff pursuant to the arbitrator's award. In its October 3, 1991, arbitration status conference report, plaintiff correctly indicated that neither side had requested a trial de novo.

On October 11, 1991, at what was to have been the post-arbitration status conference, defendant filed a motion to vacate the judgment and to request a trial de novo. That motion was denied without prejudice, because of certain technical defects, and was renewed on November 7, 1991. Defendant's attorney stated in the second motion that his failure to request a trial de novo had been due to his own neglect, which had been caused by a heavy case load and preparation for surgery. Plaintiff opposed both motions. On November 27, 1991, the court granted defendant's motion, on the condition that defendant pay plaintiff reasonable fees in the amount of $2,000 for the cost of opposing these motions. On December 4, 1991, defendant requested a trial de novo. On December 9, 1991, defendant filed a motion to reduce sanctions. On December 31, 1991, defendant paid the sanctions, and on January 8, 1992, the court denied the motion to reduce the sanctions and ordered defendant to pay plaintiff an additional $500 in attorney fees. No trial date was set at that time.

Activity on the case again ceased until July 7, 1992, when the court granted plaintiff an order shortening time which allowed her to schedule a July 10, 1992, motion to specially set the case for trial, pursuant to section 36, subdivision (e), and California Rules of Court, rule 375. In a declaration in support of the motion, plaintiff's attorney stated that he had been extremely busy with other matters and that he had associated another attorney on April 27, 1992. The declaration also stated: "It had been my understanding of the law that the Court had a sua sponte responsibility to see that the matter was set. However, I felt compelled to take some action in order to protect my client's claim before the expiration of this statute."

The trial court denied the motion to specially set, and in the hearing stated two separate grounds. First, the court found that five years had already elapsed since plaintiff filed her action, requiring a dismissal for failure to prosecute under section 583.310. Second, the court found that even if, as plaintiff contended, there were 44 days remaining in the 5-year period at the time she made the motion to specially set, plaintiff's lack of activity since defendant's request for a trial de novo made a denial of the motion to specially set appropriate on discretionary grounds under section 583.410.

The Court of Appeal affirmed the trial court's dismissal. The court rejected plaintiff's argument that the five-year statute was automatically tolled under our Moran decision. Although the court conceded that the trial court may have miscalculated the amount of time the five-year statute had been tolled, and therefore may have erred in granting a mandatory dismissal of the case, it nonetheless upheld the dismissal on discretionary grounds.

II. The Applicability of the Moran Case

Plaintiff first contends, relying on our opinion in Moran, supra, 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216, that the five-year limitation period prescribed by section 583.310 is automatically tolled between the date a trial de novo is requested under section 1141.20, and the date set for the new trial. None of the time elapsed between defendant's request for a trial de novo and plaintiff's motion to specially set, she argues, should have been counted when calculating the five-year period. Therefore, she claims, she was entitled under Moran to a timely trial date, and the trial court erred as to both its mandatory and discretionary dismissal of the case.

In order to assess the merits of plaintiff's position, we must discuss at some length the meaning of the Moran case in light of subsequent legislative developments as well as judicial interpretations.

In Moran, with only forty-one days left before the expiration of the five-year statute, and with the trial set for approximately one month before the expiration date, the trial court ordered the case into arbitration pursuant to section 1141.11. When the plaintiff's attorneys warned of the impending five-year statute, the trial court assured them that the case would be restored to the trial calendar should any party request a trial de novo. After an arbitrator's award to the plaintiff, the defendant requested a trial de novo 24 days before the expiration of the 5-year period.

The plaintiff promptly notified the court of the imminent five-year deadline and the need to recalendar the case for trial. But despite assurances from court personnel, the case was misfiled and sent to storage. Eventually, 129 days after the supposed expiration of the 5-year statute, defendant moved for dismissal under section 583, subdivision (b), the predecessor to the current section 583.310. (Moran, supra, 35 Cal.3d at p. 236, 197 Cal.Rptr. 546, 673 P.2d 216.) Although the defendant's motion was denied in the trial court, he was granted writ relief in the Court of Appeal.

We reversed the Court of Appeal, finding for two independent reasons that the statute had not expired. First we recognized an implied exception to the five-year statute when, despite a plaintiff's reasonable diligence, prosecution of the action within five years proves to be "impossible, impracticable or futile"--an exception that has since been...