*1 Dist., Sept. Two. 63473. Second Div. 1982.] No. [Civ. al., Petitioners, et
JESSIE H. CASTORENA COUNTY, OF LOS ANGELES THE SUPERIOR COURT Respondent; ESTRADA, in Interest.
LORRAINE Real Party *2 Counsel White, Willman for & M. Arnold and Mark T. Larry
Cummins Petitioners. *3 for appearance Respondent.
No Schmidt, & G. and Raymond David David C. Schmidt for Stephen in Interest. Party Real
Opinion to dis- BEACH, J. writ of mandate to trial court compel Petition for (Code five Civ. years. action failure to to trial within bring miss for 583, Proc., (b).)1 petition. We the grant subd. §
Facts 12, 1975. Plaintiff thereafter was filed on November complaint The Arbitration,” that the case be submit- requesting an “Election for filed the period filed before six-month Both were requests ted to arbitration. described in statute of limitations five-year the of the prior to expiration 583, matter was arbitrated (b) and 1141.17. The subdivision sections was served. 18, 1980, the arbitration award notice of and on December the the fifth of past anniversary filing month was a little over one This complaint. 24, 1980, trial novo. defendants demanded de Notice
On December 21, 1981, and trial set- January of trial conference was mailed setting 11, 1981, parties. March attended both by was held on ting conference 31, August trial the trial was set for 1981. On After conference setting 11, for 1981, their to dismiss failure defendants noticed motion August motion was to the to trial within five Defendants’ bring years. matter 26, 1981, The reset for trial on and denied. matter was heard August 23, in this court on petition for Defendants filed their September 1981. 4, 1981. September
Discussion
in
Based
the
rules reviewed
us
our recent deci
by
on
established
21,
Court filed
sion of Moran v. September
1982* (Cal.App.),
of Civil Procedure unless otherwise indicated.
statutory
1 All
references
to Code
are
Supreme
opinion
Hearing granted, for
see
In the instant case both
for submission
arbitration were
requests
in
filed
the six-month
discussed
section
by plaintiff
period
before
That
in
cases where
only
1141.17.
section
for
certain
provides
tolling
five-year
submission to arbitration is within the last six months of the
Therefore,
the time
which the matter was in arbitration
period.
during
did not toll the
of the
subdivi-
period
section
running
five-year
(b). Thus,
sion
the
of the
was
or
running
five-year period
stayed
not
by any
tolled
Nonetheless there still remains a
statutory provisions.
the
question
whether
established that she could not bring
*4
her cause to trial
five
or
years
futility
before
because of impossibility,
impracticality,
reasons
as
the five
recognized
extending
under
years
(1981)
cases such as
v.
Hocharian
Although the time in arbitration did not the of toll the five- running year period by operation of the but statutory ar- tolling, assuming, but guendo, without that it deciding nonetheless as a of qualifies cause some impracticability on the part of to plaintiff bring her case to trial time, during that there was nonetheless an abuse of discretion on the of the part trial court in denying defendants’ motion to dismiss. Plaintiff did not demonstrate that all of the additional time during 12, (date from December award) 11, (date 1980 of August to 1981 of motion) dismissal was a of period time which she was during under a similar of disability as she was impracticability, the arbitration during time. Plaintiff fact in made no to attempt produce any evidence whatso ever on this feature. Thus even credit for a giving decisionally created the issue is tolling, here the plaintiff’s reasonableness of conduct Court, (Hocharian 714, 28 3d in 722) Cal. supra, utilizing the procedures available to her the after award was Although made. month, there was a 19, trial conference setting within one on December 1981, attended both still by parties, did not at that time plaintiff alert the trial court to the fact that the statute had run and that five-year a only added, words, reasonable amount of time should be or in other that the action be set should for trial immediately. the arbi- (and arguendo that assuming still Moran
As in (Cal.App.) was award after the arbitration impracticability) tration created an bench, of reverted to one the matter de at requested filed and trial novo to so as effort do making trial—or reasonable the case to getting simply as extended statutory five-year period, within the possible soon as and law. decisional by applicable discussed in Moran since (Cal.App.),
Guided the we by principles from the question impracticability no evidence on presented later, the tri date almost nine months to the trial the date the award far and thus away in the case that al abused discretion setting court its ex than it would have been period longer the even extending five-year inAs Moran applicable. had been statutory tended if the tolling early setting effort to utilize an was no of an showing there (Cal.App.) (Rule Court.) 225, Cal. Rules of motion. defendants, at trial de novo and by demanding
Plaintiffs claim that after by serving interrogatories the conference and setting trial tending statute of limita award, raise the waived their rights arbitration the (Holt (1960) v. Pardue Cal.App.2d tions, is without merit. *5 and cases Moran v. Court Superior (Cal.App.) 225]; cited.) there denying vacate its order the trial court to directing
Let a writ issue a different order and enter motion to dismiss and make defendants’ the matter to trial to bring for failure dismissing the action Civil Procedure section in Code of within the time described period (b). subdivision J., concurred. Compton, dissent in Moran stated in
ROTH, my for the reasons P. J.I dissent (Cal.App.).