Serrano v. FMC Corp.

• Decision Date: 27 June 1990
• Docket Number: No. H005826,H005826
• Citation: 221 Cal.App.3d 1027,271 Cal.Rptr. 41
• Parties: Wilfredo SERRANO, Plaintiff and Appellant, v. FMC CORPORATION, ORDNANCE DIVISION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 41

271 Cal.Rptr. 41

221 Cal.App.3d 1027

Wilfredo SERRANO, Plaintiff and Appellant, v. FMC CORPORATION, ORDNANCE DIVISION, Defendant and Respondent.

No. H005826.

Court of Appeal, Sixth District, California.

June 27, 1990.

[221 Cal.App.3d 1028] Gary B. Wesley, San Jose, for plaintiff and appellant.

Jon B. Streeter, Garrett Sanderson, III, Orrick, Herrington & Sutcliffe, San Francisco, for defendant and respondent.

ELIA, Associate Justice.

Wilfredo Serrano appeals from an order dismissing his action for failure to bring the matter to trial within five years. (Code Civ.Proc., §§ 583.310, 583.360.) Appellant contends that under Moran v. Superior Court (1983) 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216 the statute of limitations was tolled by his request for a trial de novo following arbitration, and he had no duty thereafter to exercise diligence in prosecuting the matter. We disagree and affirm the order of dismissal.

PROCEDURAL HISTORY

Appellant commenced this action on December 14, 1983, asserting negligence, breach of contract, and other causes of action relating to disappointing performance evaluations he had received in his employment at respondent FMC Corporation. In May 1986 the court ordered the case to arbitration. The arbitrator ruled in favor of respondent, finding no evidence to support the allegations of the complaint. On December 23, 1986, appellant made a timely request for a trial de novo pursuant to California Rules of Court, rule 1616.

No further action was taken either by the court or by appellant until November 1988. At that time appellant's counsel contacted the clerk's office of the superior court and was advised to file a new at-issue memorandum. The memorandum was filed on December 2, 1988, with no indication that the five-year dismissal date was approaching. The clerk contacted appellant's counsel on December 6, 1988, and informed him that the case was no longer on the civil active list and that a motion to restore would be necessary. Appellant did not file such a motion at that time and the five-year statutory period elapsed on December 14, 1988.

On February 28, 1989, respondent filed a motion for summary judgment, summary adjudication, and judgment on the pleadings, seeking, inter alia, dismissal of appellant's action pursuant to Code of Civil Procedure section 583.310. Appellant responded by filing a motion to restore the case to the civil active list, and he set his motion for hearing prior to the scheduled hearing on respondent's motion. Neither appellant nor his counsel appeared at the hearing on the motion to restore and the motion was denied.

On March 28, 1989, the court heard respondent's summary judgment motion. The court found that appellant had failed to act with diligence in bringing the case to trial, and ordered the action dismissed on the court's own motion pursuant to Code of Civil Procedure section 583.360. Appellant filed a timely notice of appeal from the order.

DISCUSSION

Code of Civil Procedure section 583.310 ¹ provides that "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.360 states: "An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article."

Section 1141.20, which addresses requests for trial de novo after arbitration, provides: "Any party may elect to have a de novo trial, by court or jury, both as to law and facts. 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." Section 1141.17 makes it clear, however, that the statute of limitations is not tolled when a case is sent to arbitration, unless the action is or remains submitted to arbitration within six months of the expiration of the statutory period.

Appellant contends that the trial court erred in dismissing his action for lack of diligence. He maintains that once he requested a trial de novo pursuant to California Rules of Court, rule 1616(b), ² it was the sua sponte duty of the trial court to recalendar the case and he had no duty of diligence thereafter in prosecuting the action.

In Moran v. Superior Court, supra, 35 Cal.3d 229, 197 Cal.Rptr. 546, 673 P.2d 216, the trial court ordered an action to arbitration The trial court rejected Moran's request to dismiss the plaintiff's action and the Supreme Court affirmed on two independent grounds. First, the plaintiff had exercised "reasonable diligence" in prosecuting her case, thereby warranting the application of the impossibility exception to excuse her failure to bring the case to trial within the five-year limit. Second, under former section 1141.20 (now § 1141.20, subd. (b)), a trial court has a sua sponte duty to recalendar a postarbitration case for trial, giving it the same priority it had before arbitration.

41 days before the expiration of the five-year statutory period. After an arbitration award was filed in favor of the plaintiff, the defendant requested a trial de novo. With twenty-four days remaining before the limitations period expired, plaintiff's attorneys contacted the clerk's office, requesting that the case be reset for trial and be given the same position on the trial calendar as it had had prior to arbitration. (Id. at p. 236, 197 Cal.Rptr. 546, 673 P.2d 216) The clerk assured the attorneys that the case would be reset within the five-year period. The attorneys made follow-up calls and the clerk repeated these assurances; nevertheless, the case file was sent to the basement for storage and the five-year period elapsed.

There is a split of authority in the court of appeal--primarily among the divisions of the second district--regarding the question of whether the second alternative holding encompasses a duty of reasonable diligence by the plaintiff to expedite prosecution of his or her case after arbitration. As explained in Santa Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 1031-1032, 250 Cal.Rptr. 384, "One line of cases, essentially all decided by Division Seven of [the Second District], views Moran as intending to effect an automatic and unconditional postarbitration tolling period extending to whatever trial date the court sets. This view is based on the observation that Moran does not explicitly refer to plaintiff's reasonable diligence when discussing its second alternative ground for its decision. It is also based upon Moran's characterization of former section 1141.20 as placing a 'sua sponte' duty upon the trial court to 'recalendar' a trial date that preserves plaintiff's position...