Marchuk v. Ralphs Grocery Co.

• Decision Date: 24 December 1990
• Docket Number: No. G008653,G008653
• Citation: 276 Cal.Rptr. 627,226 Cal.App.3d 1273
• Court: California Court of Appeals Court of Appeals
• Parties: Frank MARCHUK, Plaintiff and Appellant, v. RALPHS GROCERY COMPANY, Defendant and Respondent.

Page 627

276 Cal.Rptr. 627

226 Cal.App.3d 1273

Frank MARCHUK, Plaintiff and Appellant, v. RALPHS GROCERY COMPANY, Defendant and Respondent.

No. G008653.

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

Dec. 24, 1990.

Review Denied March 14, 1991.

[226 Cal.App.3d 1275] Frank Marchuk, in pro. per.

Morgan, Wenzel & McNicholas and Patricia J. Rozakis, Irvine, for defendant and respondent.

OPINION

CROSBY, Associate Justice.

Frank Marchuk challenges the postarbitration dismissal of his tort action for failure to bring it to trial within six months after he filed a request for trial de novo. We agree he was not diligent in securing a timely trial date and affirm.

I

This matter remained submitted to judicial arbitration more than four years and six months after it was initiated. Marchuk timely filed a requestfor trial de novo on January 20, 1989. Accordingly, pursuant to Code of Civil Procedure section 583.350, he had six months from that date, ¹ i.e., until July 21, 1989, to bring the action to trial. ²

The superior court restored the case to the civil active list, but Marchuk failed to appear at the April 4, 1989 mandatory settlement conference. The minute order for that proceeding indicates the court continued the mandatory settlement conference to August 16 and scheduled trial for August 28, 1989. Marchuk admittedly learned of the new mandatory settlement conference and trial dates on April 6, 1989. He did not contact the court or opposing counsel concerning the matter until early August.

By that time, of course, the six months within which he was required to bring the case to trial had come and gone. Ralphs recognized the fact, and its motion to dismiss under the mandatory provisions of Code of Civil Procedure sections 583.310 and 583.360 was granted.

Because only defense counsel was present when the court assigned the trial date, Marchuk primarily contends Ralphs should be estopped to claim the date ran afoul of the extended five years. He obliquely adds that the arbitration tolling remained in effect until he received a trial date. For the reasons that follow, we reject both arguments.

II

Although not artfully phrased, Marchuk's second argument distills to this: A timely filed request for trial de novo absolves a plaintiff of any further responsibility to diligently monitor critical dates or to advise the court to schedule the trial within the six-month limit specified in Code of Civil Procedure section 583.350. ³ He is wrong.

Nothing in the arbitration statutes relieves a plaintiff of the burden of exercising due diligence by keeping track of crucial dates and calling the court's attention to the anticipated running of the five-year period. California has long required a plaintiff to exercise due diligence in prosecuting a lawsuit. The notion that a postarbitration plaintiff is somehow excused from that responsibility has its roots in Moran v. Superior Court (1983) 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216. ⁴ We join with the other appellate panels who have determined that retirement with dignity is long overdue for Moran. (See, e.g., Serrano v. FMC Corp. (1990) 221 Cal.App.3d 1027, 1031, 271 Cal.Rptr. 41; Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1536, 255 Cal.Rptr. 781; Santa Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 1033, 250 Cal.Rptr. 384; Berry v. Weitzman (1988) 203 Cal.App.3d 351, 355-357, 249 Cal.Rptr. 816.) First, however, we briefly trace developments in the reasonable diligence rule.

It existed before the Legislature adopted the judicial arbitration scheme in Code of Civil Procedure section 1141.10 et seq: "No case, to our knowledge, has ever held that inadvertence on the part of the court in selecting a trial date [beyond the five-year statute] constitutes the type of impracticability, impossibility or futility which tolls [that] statute. Nor do we propose to adopt such a rule. It is the plaintiff's duty to keep track of the pertinent dates which are crucial to maintenance of his lawsuit, and to see that the action is brought to trial within the five-year period. (Crown Coach Corp. v. Superior Court [1972] 8 Cal.3d 540, 549 [105 Cal.Rptr. 339, 503 P.2d 1347].)" (Singelyn v. Superior Court (1976) 62 Cal.App.3d 972, 975, 133 Cal.Rptr. 486.)

Diligence was the rule after the advent of judicial arbitration and before the Supreme Court issued Moran. (Cannon v. City of Novato (1985) 167 Cal.App.3d 216, 221, fn. 4, 213 Cal.Rptr. 132.) It was taken for granted in Moran itself. (Moran v. Superior Court, supra, 35 Cal.3d at p. 240; see also fn. 3, 197 Cal.Rptr. 546, 673 P.2d 216.)

After Moran, however, in an apparent zeal to apply the new tolling rule, several courts ignored or relegated the reasonable diligence standard to a less prominent position. In Paul E. Iacono Structural Engineer, Inc. v. Rizzo (1984) 162 Cal.App.3d 803, 208 Cal.Rptr. 787, the court held the five-year statute did not run until the trial court set a postarbitration trial date, but did not discuss plaintiff's diligence. Ward v. Levin (1984) 161 Cal.App.3d 1026, 208 Cal.Rptr. 312 reached the same result, but there the court determined plaintiff acted diligently in securing a postarbitration trial date.

Several courts also refused to accede to the Legislative Committee Comment that the 1984 amendment to section 1141.17 "supersedes the rule stated in Moran [ ] that the time between the date the arbitration award is filed and the date set for the trial de novo is to be excluded from the calculation of the five-year dismissal period." (See, e.g., Barna v. Passage 350 Canon (1986) 186 Cal.App.3d 440, 447, 230 Cal.Rptr. 764 ["under the tolling rule of Moran, the reasonable diligence of the plaintiff is placed in issue under the discretionary dismissal statutes [ ], but not under the mandatory dismissal statute"]; Hughes v. Southern Cal. Rapid Transit Dist. (1985) 173 Cal.App.3d 512, 219 Cal.Rptr. 82 [no diligence discussion].)

But the Barna and Hughes courts have reconsidered their views and now reject the notion that a plaintiff need not diligently pursue a timely trial date after arbitration. Presiding Justice Klein, who authored Hughes, also authored Hill v. Bingham (1986) 181 Cal.App.3d 1, 225 Cal.Rptr. 905 (one panel member of Hughes concurred in Hill ) and Berry v. Weitzman, supra, 203 Cal.App.3d 351, 249 Cal.Rptr. 816 (joined by the second Hughes panel member). In Hill, she wrote, "Giving full credence to the import of Moran, a requirement of continuing diligence by the plaintiff is not inconsistent with its rationale. No reason in logic or law compels a ruling that holds merely because the trial court is under a sua sponte duty, the plaintiff is relieved of the requirement of diligence, of keeping track of crucial dates, of calling to the court's attention the chronology of the case, and of following up...." (Hill, supra, 181 Cal.App.3d at p. 12, 225 Cal.Rptr. 905.)

The court went even further in Berry. There the panel observed, "In Hill, we moved beyond statutory construction, which was the focus in Hughes, and probed the issue of diligence, which is central to Moran. The timely filing of a request for trial de novo, standing alone, is insufficient to avoid the five-year bar. A plaintiff must also call the time frame of the case to the trial court's attention. In addition, the plaintiff may not abdicate further responsibility and casually await a new trial date selected by the trial court, but must continue to move the case along to bring it to trial within the statutory period. [p] The rejection of Hughes's automatic tolling upon a timely request for trial de novo until the setting of a new trial date does not impair the protections afforded diligent plaintiffs.... If a plaintiff diligently seeks to advance a case to trial, but the trial court is unresponsive, the plaintiff has resort to the impossibility exception to the five-year rule. (§ 583.340, subd. (c).) If diligence is lacking, a plaintiff who exhausts the six months allotted by section 1141.17 faces involuntary dismissal." (Berry v. Weitzman, supra, 203 Cal.App.3d at pp. 356-357, 249 Cal.Rptr. 816, fn. omitted.) We agree.

One of the concurring justices in Barna v. Passage 350 Canon, supra, 186 Cal.App.3d 440, 230 Cal.Rptr. 764 garnered a new majority in Baccus v. Superior Court, supra, 207 Cal.App.3d 1526, 255 Cal.Rptr. 781 and embraced the rationale of Santa Monica Hospital Medical Center v. Superior Court, supra, 203 Cal.App.3d 1026, 250 Cal.Rptr. 384: "The plaintiffs in both Barna and Moran were diligent in attempting to bring their cases to trial after arbitration. Because real parties in the instant case were not diligent, we deem the analysis in Santa Monica Hospital Medical Center [ ] to control here." (Baccus, supra, 207 Cal.App.3d at p. 1536, 255 Cal.Rptr 781.) ⁵ So do we.

In this case, Marchuk admittedly knew in April that the court scheduled the trial beyond the six-month limit. He made no effort to inform the court of the problem. And, unlike the plaintiffs in Moran and Barna, he did not contact the court until after the extended five years expired. Nothing in the record before us suggests it was impossible or futile to attempt to bring this lawsuit to trial before the five years ran. Marchuk cannot blame opposing counsel or the court for the lapse. It was his responsibility to monitor the dates, and he failed to do so.

III

In support of his estoppel claim, Marchuk quotes Tejada v. Blas (1987) 196 Cal.App.3d 1335, 242 Cal.Rptr. 538, where the panel observed, "The doctrine of equitable estoppel is applicable to section 583.310 dismissal motions. [Citations.] If a trial court finds statements or conduct by a defendant which lulls the plaintiff into a false sense of security resulting in inaction, and there is reasonable reliance, estoppel must be available to prevent defendant from profiting from his deception." (Id. at p. 1341, 242 Cal.Rptr. 538.) Of course, having said...