*1 S035703.June 1995.] [No. HOWARD,
ARKITA L. Plаintiff and Appellant, STORES, THRIFTY DRUG AND DISCOUNT Defendant and Respondent.
Counsel
Errol J. Gordon for Plaintiff and Appellant. Watkins, for Ann Hancock & Charles A. and Hellar Lynberg
Lynberg Defendant and Respondent.
Opinion
case,
Court
Superior
we
our decision in Moran
MOSK, J.
revisit
In
(Moran)
recon
P.2d
216]
We further hold that the court did not its discretion in denying trial abuse motion to the action on discretion- set and specially dismissing under section court should use such ary grounds 583.410. a trial Although motions to as a failure to rectifying set means of its postarbitration or calendar recalendar a case the action to section nonetheless be when has mаy subject discretionary dismissal arbitration, shown unreasonable either before or or when the delay, after *6 defendant conduct. can show actual from dilatory prejudice Here, the was by trial court’s dismissal of this case discretionary justified in and We delay both the plaintiff’s significant pre- post-arbitration periods. therefore affirm the of the Court of case judgment dismissing Appeal to section 583.410. pursuant Facts
I. The facts tell tale of a series errors commit- of undisputed procedural 1987, 12, both and ted and the trial court. On by plaintiff parties May 1 statutory All references will be the Code of Civil Procedure unless otherwise indicated. to brought years 2Section 583.310 “An within five after reads: action shall be to trial action is against commenced the defendant.” for filed a personal injury L. Howard complaint Arkita (plaintiff) appellant and Thrifty Drug defendant and respondent liability against and premises Court, that the in (defendant) alleging Los Angeles Superior Discount Stores of assaulted on the of one led to her being premises latter’s negligence 11, answer on December Defendant filed its 1987. defendant’s stores. 1988, in some interrogato engaged discovery, propounding In parties that, was little in the for documents. After there activity ries requests 1991, of some January filed an at-issue memorandum case until plaintiff Pursuant to Califor seven months after filing complaint. three years list, 209, Court, a civil active rule the case was on nia Rules of placed certain other to be calendared for trial once procedural which it was eligible of the matter was assigned were fulfilled. In April prerequisites section 1141.10 et with a arbitration seq., postarbitration judicial pursuant held October An arbitration was status conference scheduled for 1991. 14, 1991, 22, 1991, awarded and on the arbitrator August August 21, 1991, $30,000. when defendant That award became final on September 1141.20, subdivision failed to a trial de novo to section request according 1, 1991, (a). On the trial court entered for October judgment 3, 1991, In arbitration status to the arbitrator’s award. its October neither side had re indicated that report, plaintiff correctly conference a trial de novo. quested 11, 1991, status
On October at what was to have been the postarbitration conference, a defendant filed a motion to vacate the and to request judgment de motion because of certain trial novo. That was denied without prejudice, defects, Defendant’s technical and was renewed on November 1991. trial de novo stated in the second motion that his failure to a attorney case had been due to his own which had been caused by heavy neglect, On November load and Plaintiff both motions. preparation surgery. opposed motion, the court defendant’s on the condition granted $2,000 in the for the cost defendant reasonable fees amount pay plaintiff 4, 1991, defendant requested these mоtions. On December opposing 9, 1991, to reduce de On defendant filed a motion novo. December sanctions, 31, 1991, and on sanctions. On December defendant paid 8, 1992, the the motion to reduce the sanctions and court denied January No $500 an additional fees. attorney ordered defendant pay plaintiff trial date was set at that time. *7 when the court on the case ceased until
Activity again July her to schedule a an order time which allowed granted plaintiff shortening 10, 1992, trial, motion to set the case for July specially Court, rule In a (e), and California Rules of 375. declaration motion, stated that he had been ex- of the plaintiff’s attorney in support with other matters and that he had associated another attorney tremely busy The declaration also stated: “It had been understand- my on 1992. April to see that the of the law that the Court had sua ing sponte responsibility However, I in matter was set. felt to take some action order to compelled before the of this statute.” cliеnt’s claim protect my expiration set, The court denied the motion to stated hearing trial specially First, the found that five years two court had separate grounds. already action, since filed her a dismissal for failure to elapsed requiring Second, if, under section 583.310. the court that even found prosecute contended, there were 44 in the at the days remaining 5-year period set, time she made the motion to lack of since specially plaintiff’s activity defendant’s for a trial de novo made a denial of the motion request set under section 583.410. specially appropriate discretionary grounds The Court of affirmed the trial The Appeal court’s dismissal. court that the statute was rejected plaintiff’s argument five-year automatically tolled under our Moran decision. the court conceded that the trial Although court have miscalculated the may amount of time the statute had tolled, been and therefоre have erred in may dismissal granting mandatory case, of the it nonetheless the dismissal on upheld discretionary grounds.
II. The the Moran Applicability Case of contends, Moran, Plaintiff first on our relying opinion Cal.3d 229, that the five-year limitation period section 583.310 is prescribed by tolled between the date a trial automatically de novo is under requested and the date set for the new trial. None the time elapsed between defendant’s for a trial de novo and motion to set, she should argues, have been counted when calculating Therefore, claims, she five-year period. she was entitled under Moran to a date, and the timely trial court erred as to both its mandatory discretionary dismissal of the case.
In order to assess the merits of we must discuss at plaintiff’s position, some length Moran case in meaning light legislative subsequent as well as developments judicial interpretations. Moran,
In with left only forty-one before the days expiration statute, and with the trial set for one month before approximately date, the trial expiration court ordered the case into arbitration pursuant *8 432 the warned of the
to section 1141.11. When plaintiff’s attorneys impending statute, that the case restored the trial court assured them would be five-year trial an trial should a de novo. After any to the calendar party request the defendant a trial de novo 24 arbitrator’s award to the plaintiff, requested the before the of 5-year period. days expiration the the notified court of imminent dead
The plaintiff promptly the But line and the need to recalendar case for trial. assurances despite was sent to storage. court the case misfiled and Eventually, personnel, statute, of moved for after the the defendant 5-year days supposed expiration (b), the the current under section to predecessor dismissal 236.) the defend (Moran, 583.310. Cal.3d at supra, p. Although section court, the in the trial he was writ relief in motion was denied granted ant’s Court Appeal. for two reasons that
We reversed the Court Appeal, finding independent had First we an to the the statute not expired. recognized implied exception when, statute a reasonable plaintiff’s prosecution despite diligence, or of the action within five to be years proves “impossible, impracticable, 583.340, sub futile”—an that has since been codified exception over (c). record of the actions division Reviewing complete we found her been and to have five-year period, reasonably diligent, (Mo within or futile” therefore exception. “impossible, impracticable, ran, 238-240.) at Cal.3d pp.
Second, we concluded in III of that the time between part opinion a trial de novo and the date on which date postarbitration requested We new trial is set should in case be excluded from the any five-year period. based this on a which сonclusion construction of section permitted (now to trial de novo after a within party request days days) award, (and of an also currently arbitration which filing provided trial, that: elect a de novo court or jury, to have “Any party may provides) calendared, as to law Such trial insofar as both and facts. shall be possible, that the trial on the active list as it had prior so shall be same given place arbitration, As or civil the next calendar.” shall receive setting priority made, we stated: “Once for a trial de has been novo] [a it held that a be calendared in the order of case for trial requires priority matter before the trial has the to order a arbitration. Since court alone power calendar, its the court section 1141.20 imposes duty upon placed upon had sua to recalendar the trial in ‘the same ... it sponte place prior mandate, In in order arbitration.’ with this statutory compliance of time that the will retain the benefit of amount ensure
433 arbitration, when the case went into that in the remaining five-year period (Moran, the court.” will remain tolled until the new trial date set period 240-241, omitted.) fn. It is this 35 Cal.3d at italics in original, supra, pp. that relies on in second “automatic Moran tolling” prong arguing a trial that the statute was tolled from the date defendant requested five-year novo, and that therefore the trial court erred in the case. dismissing de District, Second have had
Our Courts of those in the particularly Appeal, numerous occasions to Moran and in its second interpret particular prong. arose, a schism within these courts with some courts to Initially, appearing hold that the occurred whether or not acted postarbitration tolling (See the court to calendar the case. Barna v. diligently reminding timely 440, 350 Passage (1986) Canon 186 447-448 Cal.App.3d Cal.Rptr. [230 764]; (1985) v. Southern Cal. Transit Dist. 173 Hughes Rapid Cal.App.3d 512, 82]; 517-518 Paul E. Structural Engineer, Iaconо Inc. v. Cal.Rptr. [219 (1984) 787]; (1984) 162 803 Ward v. Levin Cal.App.3d Cal.Rptr. [208 Rizzo 1026, 161 312].) 1033 Other courts held Cal.App.3d Cal.Rptr. [208 were to be that a plaintiffs required diligent, specifically “plaintiff [must] the trial court of the correct limit” once a trial de notify novo has been in order requested, to benefit discussed in tolling period (Santa (1988) Moran. Monica Medical Center v. Court 203 Hospital Superior 1026, 1034 384]; (1991) Cal.App.3d see also Messih v. Levine Cal.Rptr. [250 454, 825]; 228 458 Marchuk v. Cal.App.3d Ralphs Grocery Cal.Rptr. [278 1273, (1990) 627]; Co. 226 1277 Dresser v. Bindi Cal.App.3d Cal.Rptr. [276 1493, (1990) 137]; 221 Cal.App.3d 1498 Serrano v. FMC Cal.Rptr. [271 (1990) 1027, 1031-1032 41]; 221 Corp. Cal.App.3d Baccus v. Cal.Rptr. [271 (1989) 1526, 781]; Court 207 Superior 1536 Cal.App.3d Cal.Rptr. [255 (1988) 351, 816]; Berry v. 203 356-357 Cal.App.3d Cal.Rptr. [249 Weitzman v. Tri-City (1987) Lincoln Mercury 190 91-92 Cal.App.3d Sizemore [235 343]; Hill (1986) v. 181 11-12 Cal.Rptr. Bingham Cal.App.3d [225 905]; Cannon v. Novato Cal.Rptr. City 167 Cal.App.3d this latter view has now is Apparently, prevailed held in unanimously the Courts of all divisions that have consid Appeal by (See Levine, 454, 458; the issue. ered Messih v. supra, Cal.App.3d Co., v. Marchuk Ralphs Grocery 1278.) supra, Cal.App.3d initial, We with these agree Courts of thаt some reasonable Appeal diligence to benefit from section 1141.20’s plaintiffs’ part required implied tolling provisions. This construction of section 1141.20 is dictated statute, section, another part by arbitration section 1141.17. That which was strengthened clarified into after the Moran by amendments effect going Bindi, decision was (see filed Dresser at pp. “(a) 1498-1500), of an action arbitration now reads: Submission statute], not running except shall chapter suspend [of (b) If an action is or remains submitted in this section. as provided [¶] *10 and months after to this more than four six years chapter arbitration action, time on the date four years filed the the beginning the has plaintiff date the has filed the action and on the ending six after plaintiff and months filed Section 1141.20 shall not a for a trial novo is under which de on request the 583.310.” Section period be included in computing five-year specified of “automatic have been the Moran’s viability Whatever original may that such a amended section 1141.17 leaves little doubt the holding, tolling” of an to arbitration will result is untenable. Submission action now holding the statute under the dismissal mandatory only in the of five-year tolling is, will running the statute five-year only stop of section 1141.17. That terms the six of or into the last months continuing for arbitrations beginning filing and then from the six-month date after five-year period, only four-year is This scheme the action until the date a de novo is tolling trial requested. Moran, continues to the one set forth in in which directly tolling contrary cease the date set the date of the trial de novo and does not until past the new for trial.
Moreover, the Court of criticism agree we also with Appeal’s Moran as to the long- automatic decision language contrary tolling court’s, to it is a than the trial settled rather duty, principle plaintiff’s Novato, (See track dates. Cannon v. City supra, of critical keep of“ 216, 222.) ‘The is upon As the Cannon court declared: burden Cal.App.3d the thе necessity setting to call to attention of the court the for plaintiff ” (Cannon, trial for a time within the fixed period by [section 583].’ v. Bondesen at Steinbauer p. quoting of P.2d This rule is well founded: the burden Cal.App. relevant fall on because plaintiffs, track of the dates should keeping properly interest, under it is who have the and the section they statutory duty to their 1141.20 cannot be construed timely prosecute to cases. Section relieve this plaintiffs of burden. being of is plaintiffs
The evident section 1141.20 to prevent purpose it the arbitration having undergone accomplishes penalized process; trial on the to their position by returning plaintiffs pre-arbitration purpose 1141.17, however, can be of time that calendar. Section restricts the amount To as the an action arbitration. tolled result of automatically submitting statutes, we of Moran reading adopted reconcile these endorse the narrow as the tolled the Courts оf as cited above: an action is automatically Appeal, of submission if it falls within the terms set only result to arbitration forth is, within the months of 1141.17—that last six only court, however, de The until a trial novo is trial only requested. period, to calendar or recalendar the for trial under still has case duty task, court, But it is the rather that of the 1141.20. than to keep dates, to inform Once track the court of these. has pertinent court, or de after a trial novo shortly informed during request, date, then has the schedule the court case “insofar duty shall so that the trial given place same the active list as possible, arbitration,” Thus, or to (§ 1141.20.) it had receive civil if prior priority. to arbitration to receive a trial date prior eligible within *11 statute, Moran, case in as was the then the five-year plaintiff is entitled to such receive a trial date a If upon timely request. the trial postarbitration court fails to calendar or correctly recalendar the сase after been having notified, will then the action tolled properly only be to 1141.20 the date trial de novo until the date of the new request trial. This tolling will result not from “submission to arbitration” under 1141.17, but from the court’s in failure the to postarbitration period its fulfill under duty section 1141.20. course,
Of a who plaintiff benefits from such tolling five-year statute pursuant to section 1141.20 still to may subject a discretionary dismissal, if the plaintiff would have been to such subject dismissal before (See arbitration. Sisler v. Superior (1988) Court 205 868- Cal.App.3d 869 Cal.Rptr. Although [252 section 1141.20 seeks to ensure that a diligent plaintiff calendar, will his or obtain her pre-arbitration the place it not does guarantee a date trial within five-year the if period dilatory a would not plaintiff have been eligible for a trial date to timely prior entering arbitration. case,
In the present did not inform the court of trial the impending deadline, or five-year make any effort to have trial date set immediately following Henсe, defendant’s for a trial de request novo. the statute continued to run between time the trial was made and the time request six some months later when plaintiff made a to motion set case for trial.
Plaintiff to attempts distinguish case from the present Courts cases cited Appeal First, above on two grounds. as plaintiff correctly points out, cases, in most of those it was the plaintiff who a trial de requested novo. (See, Levine, e.g., Messih 454, 456; v. supra, 228 v. Marchuk Cal.App.3d Co., Ralphs Grocery 1273, 1275-1276; 226 supra, Cal.App.3d v. Dresser FMC Corp., supra, 1495; Serrano v. Bindi, 221 Cal.App.3d supra, Moran, case, made the the defendant as in 1029.) In this Cal.App.3d for a A defendant’s request not distinction is significant. But this request. (a), in no shifts way under section de novo trial defendant, and it to from plaintiff advancing litigation timely burden of of critical dates. to track keep responsibility remains still above cases cited Second, the Court of Appeal many contends the case for calendared erroneously the court in which been those have either in those cases was the plaintiff had elapsed; the five-year period after attention. error to the court’s bring error or failed for that responsible 1407, 1490 Hayes Cal.App.3d Taylor (See, v. e.g., 84, 87; Mercury, supra, Lincoln Cal.App.3d Tri-City 613]; Sizemore case, trial court 5.) In this v. Bingham, Hill this, too, distinction without is a But the case altogether. to recalendar failed said, timely has the duty as we have A plaintiff, a difference. its the court has fulfilled whether or not remains force duty That trial date. Plaintiff’s failure perform the case. to recalendar own sua sponte duty running. statute leaves the duty *12 between the was not tolled action conclude that present
We therefore motion to specially de novo request plaintiff’s defendant’s trial time of 1141.20, grant was under obliged, trial court Whether set. which we address set is a separate question, motion to specially plaintiff’s IV of this opinion.3 part applied rule should not be of the Moran that our modification also claims 3Plaintiff general is that a decision of this disagree. The rule not to her. We retroactively, and therefore in its retrospective is construing a noncriminal statute former decision narrowing a court public policy, as retroactivity precluded a matter of fairness and is as except when operation, (Moradi-Shalal v. Fireman’s Fund decision. justifiably rely previous on the parties when the 58].) In this case P.2d Companies 46 Cal.3d
Ins. Moran tolling” language of the justifiable reliance on the “automatic claim cannot occurred, Appeal the Courts relevant facts in this case because the time the decision narrowly to interpreted agreement decision should be that the Moran were unanimous 454, 458, Levine, and cases (See diligence. Messih v. require plaintiff’s therein.) very least called Appeal’s interpretation of Moran at the The Courts of cited claim of reliance question. into Plaintiff’s tolling” lаnguage “automatic of that decision reading of Moran was Appeal’s by the fact that the Courts of narrow further undermined stated, effect after that went into on amendments to section 1141.17 part, based in as we have tolling” uncertainty “automatic light of Moran’s the Moran decision was filed. In of the Plaintiff’s attorney to make that effort. holding, reasonably prudent would have failed no decision, exempt from and should justifiably contention that she relied on our Moran today, rule announced is therefore without basis. 583.340, (c) Subdivision III. Statute Under Section Tolling of case, that, without the aid of the Moran claims even Plaintiff set had not at the time the motion to yet specially statute five-year expired made, erred in the case on and that the trial court dismissing mandatory was contends that the statute governing tolling grounds. Specifically, plaintiff 1141.17, not in this case is as defendant five-year period contends, 583.340, but section which that “In the time provides cоmputing article, within which an action must be to trial to this there brought pursuant shall be excluded the time which conditions during any following (c) existed: ... action trial . . . was Bringing impossible, [¶] [¶] that, or futile.” Plaintiff from the date that the arbitra argues impracticable, (30 tion award became final on after the arbitra September days 31, 1991, rendered) tor’s decision was until December when defendant paid the sanctions on the motion to set aside the default and defendant’s request effect, for a trial de novo went into it was or “impossible, impracticable, trial, futile” to the case to and therefore the bring statute should be case, tolled for that entire If that were the then one-hundred-one-day period. 7, 1992, not, the motion to set filed on was made as the trial July it, contends, court calculated and as defendant now after the expiration statute, but in fact forty-four days that date. before Defendant takes issue with calculations and her supporting that, Defendant’s legal arguments. from the argument begins principle above, noted section 1141.17 the sole means for the automatic provides of a statute tolling resulting “submission of an action to arbitration.” Under section (a), such will commence if tolling only the action “is or remains submitted to arbitration to this chapter *13 more than four and six years months after the has filed the action.” plaintiff that, Defendant then contends since the six-month after four-year period 12, 1991, did not filing commence until November no of the statute tolling occurred before that date. Defendant concedes that the tolling period contin- 31, 1991, ued until December Thus, when the sanctions were the paid. which, tolling period lasted for only 49 when days, added on to the original 12, 1992, date May for the of the expiration 5-year period, brings 30, date to June expiration 1992. Plaintiff’s motion to set the case 7, 1992, for made, trial on was July therefore after by defendant’s reckoning, date had tolling and the trial court had no expired, choice but to it. deny however, We disagree, that section 1141.17 controls. As noted in II of part section opinion, 1141.17 actions that are only governs tolled result of arbitration,” “submission of an action to and does not govern
438 “remained caused other means. The action tolling by present postarbitration for a trial de until the 30-day period requesting to arbitration submitted” time, 1141.20, 1141.17, (a).) After that (b), subd. subd. (§§ novo had run. claims, which, it she into a period during entered postarbitration plaintiff of section or futile” within the meaning was “impossible, impracticable, 583.340, the action. This (c), impossibility for her to prosecute subdivision arbitration, the action to as defendant of the submission of not because arose contends, of the namely state litigation, but because postarbitration due to a We that a agree tolling postarbitration own default. defendant’s is controlled not by or futility of impossibility, impracticability condition 1141.17, but by (c).4 we that the agree for the of plaintiff’s argument, As specifics 22, 1991, 31, until December 1991. tolled from September statute was or futile” whether it was “impossible, impracticable, The determination time fact generally specific, a case to trial within a given period to bring in the action on the obstacles faced prosecuting depending those and the exercise reasonable diligence overcoming plaintiff’s (1992) 5 (See Cal.Rptr.2d obstacles. v. Kimble Hughes Cal.App.4th [6 Nonetheless, in which it can be said 616].) there are some circumstances a default Such is the case when that the invariably exception applies. almost effectively bringing has been entered in favor plaintiff, judgment 68; (1975) (Id. v. Collier Maguire to a standstill. at p. litigation 510]; Ford v. Court Superior Cal.App.3d Cal.Rptr. [122 entered A was judgment 1, 1991, failure to on October after defendant’s on behalf case in a limbo during period a trial de novo. The remained statutory default, to vacate the until defеndant succeeded which defendant attempted The statute must in that endeavor December 1991. between considered tolled those dates. On must also be excluded.
The week prior entry judgment 22, 1991, de novo had a trial the 30-day requesting September period ensure that the court There was left for to do but to nothing expired. This the court did award as a on her behalf. entered the arbitrator’s judgment courts have held that week later. In the context of a default judgment, one *14 to arbitration after the concurring opinion 4The asserts that an action “remains submitted” and the award has been made final under arbitration has concluded arbitration position. Nothing language supports or 1141.20 1141.20. in the of either section 1141.17 Moreover, concurring opinion’s 1141.17 rewards defendant the construction of section This wholly negligence. former’s penalizes plaintiff delay for a attributable to the with section subdivision by result is neither dictated section 1141.17 nor cоnsistent (c).
439 reasonable of time between the defendant’s default and the period of entry the default should be also excluded from the judgment calculation of the Kimble, 69; v. 5 five-year period. (Hughes supra, at Maguire Cal.App.4th p. Collier, 313; v. (1971) 49 at v. Cal.App.3d Vanyek Heard 18 p. 467, case, 750].) In this the one Cal.App.3d Cal.Rptr. week between [95 the finalization of the arbitrator’s award and the was an entry judgment (Cf. Kimble, reasonable indubitably Hughes period. supra, Cal.App.4th at of three between default and p. [gap years unreasonable and judgment statute].) does not toll We five-year therefore find that the statute five-year 22, was tolled as of 1991. September concedes,
As defendant now the date on which the tolling period ended 27, was neither November the default day was judgment conditionally vacated, 4, 1991, nor December the date on which the defendant a requested novo, trial de 31, 1991, but rather December $2,000 when defendant paid sanction that was the condition of Thus, vacating judgment.5 the five- statute year was tolled for 101 days. 12, 1992, this on to Adding the May date on which the statute five-year was to have originally supposed expired, the new 21, Therefore, date was August 1992. when the motion to 7, specially 1992, set was filed on July statute had not expired, and in fact there were forty-four days remaining the five-year period.
We thus conclude that the trial court erred in the case on dismissing mandatory under grounds section 583.310.
IV. Did the Trial Court Abuse Its Discretion to Set the Specially Case for 36,
Trial Under Section (e)? Subdivision The trial court also held that plaintiff’s motion to set under (e) should be denied on under discretionary grounds 5The error committed the trial court in calculating the tolling period differs from the one urged by now defendant. The trial court conceded that period from the October 1 until November judgment vacated, when the default tolled, conditionally was was but did not period count the November 27 until Decembеr the date on which the sanctions were paid, because setting “we can’t make the aside upon payment [of conditional default] money.” concedes, As defendant now the trial regard. court erred in this Section 473 court, discretion, authorizes a in its party judgment “upon relieve a any to a default terms may just.” This includes conditioning the setting on the payment by aside of the default defaulting party of (Jade reasonable sanctions. Viguri K. v. Thus, until the judgment sanctions default paid, were was still in effect and neither the vacation of the default nor trial de novo defendant’s was operative. *15 (a) section “The court of that latter states: may 583.410.6 Subdivision for in to this dismiss an action delay prosecution pursuant
in its discretion defendant if to do so own motion or on motion of the appears article on its circumstances of the case.” Section court under the to the appropriate 583.420, (a)(2)(A) makes clear that an action be to subdivision may subject if to three brought dismissal it has not been trial within only discretionary that the trial court did not abuse its The Court held Appeal years. in the case before the dismissing days expiration 5-year discretion deadline. case,
Before dismissal of this we first addressing discretionary review the basic that are to a trial court’s discretion in guide principles whether to a motion to set an arbitra determining grant following specially tion and trial de novo We with the declaration of request. begin legislative found in section 583.130: “It is the of the state that a policy policy shall with reasonable in the of an action but proceed diligence prosecution that all shall the action to or cooperate trial other parties bringing as otherwise statute or rule of court disposition. Except provided by statute, ... trial or other adopted pursuant policy favoring disposi tion of an action on the merits over the generаlly preferred policy [is] dismissal for failure to with reasonable requires proceed diligence of an action in of this prosecution construing provisions chapter.” merits, In of this for on the the decision spite preference disposition whether to a motion to for grant set case trial remains within the specially 36, (e), sound discretion of the court. Section subdivision which governs set, motions to that “the court in its discretion preferentially provides may a motion grant served with the memorandum to set or preference at-issue memorandum and of cause which satis- accompanied by showing fies the court that the interests of will be served this justice by granting A is not entitled to a preference.” automatically preferential because a setting merely failure to set would lead to an specially expiration Sears, (Salas (1986) statute. Roebuck & Co. Cal.3d 342 Rather, (Salas).) Cal.Rptr. P.2d he or she must generally [228 590] make “some of excusable in order to receive the showing delay” preferential part 6In opinion discretionary deny we consider both the trial court’s decision (e), preferentially the motion to set under subdivision to avoid statute, discretionary grounds dismissal and its decision to dismiss the case on under section (a). (see applies types Since the same standard to both of decisions Liquor Wilson v. Sunshine Meat & Co. 34 Cal.3d 560-561 9]), they purposes merely P.2d can be present considered for two sides of the same discretionary determination. We will therefore refer to a denial of a motion to set discretionarily interchangeably. and a move to dismiss *16 349.) shown, (Id. trial date. at Once a threshold of excusable p. delay however, motion, trial court still retains the discretion to the but that deny discretion “is not unfettered: must consider the ‘total wholly [the court] ” 349; (Salas, 42 Cal.3d at Cordova v. Vans Co. picture.’ supra, p. Grocery The factors to taken into acсount in this “total are the ones assessing picture” essentially when a court is a motion for prescribed a considering discretionary dismissal Court, 373(e).7 (See under California Rules of rule Wilson v. Sunshine Meat Co., & Liquor 560-561.) Cal.3d at We have supra, pp. particularly calendar, “the condition of the court emphasized tiff, conduct dilatory by plain- date, to of prejudice defendant an accelerated trial and the likelihood of eventual dismissal if the (Salas, trial date is denied.” mandatory early supra, 349.) 42 Cal.3d at p.
When, here, as a makes a motion to set after trial the specially court has failed to recalendar the case in the court the postarbitration period, is confronted with a situation somewhat distinct from the typical above, motion. As preference discussed the trial court the alone has “[s]ince calendar, to order power a matter its trial placed upon section 1141.20 the imposes duty uрon court sua to sponte recalendar the trial ‘in the same ” it ... had to place (Moran, arbitration.’ prior 35 Cal.3d at p. omitted.) fn. The modification of the Moran rule in II of this part opinion does not alter the existence of the trial court’s statutorily sua imposed sponte but rather duty, that the existence recognizes of such does not duty result in the automatic of the tolling statute. A to motion set in this characterized, therefore, context can be as a belated attempt by plaintiff the court compel case, to fulfill its to recalendar the rather than duty simply plaintiff’s the attempt regain time she has lost her own by Thus, procrastination. the for preference of an action on the disposition merits in section incorporated 583.130 is reinforced in this situation by 373(e) 7Rule provides: ruling “In discretionarity the motion the court [to shall dismiss] motion, consider all proper matters relevant to a including determination of the the сourt’s file in the case and the affidavits and supporting by declarations data submitted parties and, applicable, where availability moving party of the parties and other essential for service of process; diligence seeking in process; effect service of the extent to which parties engaged any discussions; negotiations settlement or the diligence parties pursuing discovery pretrial proceedings, or other including any extraordinary sought relief by party; case; either case, nature and complexity applicable the law to the including pendency litigation of other under a common set of facts or determinative of the legal case; or factual issues in the the nature any extensions of time or delay other party; attributable to either the condition of the availability court’s calendar and the of an earlier trial; trial date if the ready matter was for justice whether the interests of are best case; served by dismissal or trial of the any other fact or circumstance relevant to a fair determination guided issue. The court policies shall be set forth in section 583.130 of the Code of Civil Procedure.” not be section 1141.20’s mandate plaintiffs penalized undergoing arbitration. *17 terms, in whereas the chief concern behind
Put figurative policy 36, (e) a in is to “a ‘cut’ prevent dilatory plaintiff taking line, other who had been their causes” parties diligently pursuing displacing (1990) Ins. Co. 225 1046 Century v. 20th (Nye Cal.App.3d [275 319]), the concern of section 1141.20 is to who allow plaintiffs Cal.Rptr. in arbitration to their in line for trial have engaged keep place eligibility. When, here, (Moran, 241-242.) 35 Cal.3d at the case is not supra, pp. returned to the civil active list and calendared for trial because of the court’s 1141.20, to with section that failure the fact a motion to set comply specially now seeks to that error should in favor. rectify weigh plaintiff’s
Nonetheless, the trial court still retains discretion tо a motion to deny set made a who has failed to a by timely specially plaintiff promptly trial date in the A who waits an unreasonably postarbitration period. time in to correct the to the case court’s failure recalendar long acting may be unable to claim “excusable and therefore be delay” may subject (See (1984) dismissal. Karubian v. Nat. Bank 152 Security Pacific 295].) 139 Cal.App.3d Cal.Rptr. [199
The court also have reason for a motion when it may denying plaintiff’s determines that the accelerated trial date is to the defend actually prejudicial 583.410, ant. One of the behind in section “ addition purposes encouraging diligence is to plaintiff, ‘promote justice by preventing surprises the revival of claims that have been allowed to slumber until through lost, faded, evidence has been memories have and witnesses have disap ” (Corlett (1980) v. Gordon peared.’ Cal.App.3d [165 courts should not that a Cal.Rptr. Although delay presume prоse cution is to a defendant Los (City Angeles Gleneagle Dev. prejudicial 212]), Co. a of actual showing can be a or critical factor in a motion to dismiss prejudice denying granting (Corlett, 1016). a motion to set at specially p.
Moreover, a motion to set under the circumstances of this case specially be may denied inasmuch as it is supported by plaintiff’s pre-arbitration conduct of II if As of this litigation. explained opinion, part is vulnerable to a for want of dismissal discretionary prosecution before arbitration under section the arbitration then undergoing process from the under section 1141.20 does not nec- benefiting recalendaring immunize the such a motion. essarily plaintiff against sum, In a trial court use a motion to set may specially case for trial as an correct its own failure to opportunity calendar or 1141.20; recalendar the case after arbitration under section but these consid can erаtions outweighed by plaintiff’s unreasonable either delay arbitration, before or after as well as to the defendant from by prejudice an accelerated trial date.
When
reviewing discretionary dismissal or a denial of a motion to
set on
an
discretionary grounds,
court must
appellate
presume
“
the decision of the trial court is correct.
‘All intendments and presumptions
*18
are
silent,
it on
indulged
support
matters as to which the record is
and
”
error must be
(Denham
shown.’
affirmatively
(1970)
v.
2
Superior Court
557,
65,
Cal.3d
564
468
193].)
P.2d
Cal.Rptr.
[86
a lower court is
Although
to consider the
obliged
relevant factors when
on a
ruling
discretionary
dismiss,
motion to
it is not
to state in
compelled
written or oral form its
reasons for
granting
(Wilson
dismissal.
discretionary
v. Sunshine Meat &
Co.,
Liquor
supra,
In the present a review of the and the transcript trial court’s order reveals little of the trial court’s rationale for denying the motion to set. But we cannot say that the order itself is unreasonable. We note in this case that there was a of three lapse years seven months between the time of the filing and the complaint of the first filing at-issue which, memorandum—a period during for the except propounding of form interrogatories and a documents, single the case lay dormant. Nor is there evidence in any the record of active settlement or negotiations delay by (Cf. defendant. Jepsen (1950) Sherry 99 819]; 122 P.2d Forneris (1945) [220 v. Krell 69 Cal.App.2d 280, 283 P.2d 937].) [158 Although did arbitration, conduct a successful she then waited over six months—and less than two months before the expiration deadline—to to the bring court’s attention the lack of date. And the fact that defendant made no of showing prejudice not determina- tive: when a plaintiff fails to make a of showing excusable the trial delay,
court remains within its discretion in the case the lack of dismissing despite (See Blank v. Kirwan actual 39 Cal.3d prejudice. [216 short, P.2d In we cannot of Cal.Rptr. say, light plaintiff’s arbitration, both before and after that the trial court abused its discre- delay tion in the case. dismissing
V. Disposition The of the Court of dismissal of judgment Appeal sustaining action to Code Civil Procedure section 583.410 is affirmed. Lucas, J., Kennard, J., J., Arabian, J., J., C. George, Werdegar, concurred.
BAXTER, J., I concurin the and with II Concurring. judgment part The automatic in Moran v. majority opinion. tolling recognized Superior (1983) 35 Court Cal.3d P.2d is no longer 216] I defensible. also that a has a agree to inform the responsibility court of the date on which the within which the action must five-year period *19 to trial will I brought that dismissal of this action expire. Finally, agree was proper. however,
I do not that Code of Civil agree, Procedure section 585.3401 tolled of the any part five-year within which this action should have period been to trial that fell after brought the arbitration award was filed and prior 12, 1991, to November the commencement of the last six months of that within the six months period. Only forty-nine days immediately tolled, were and those were tolled prior expiration five-year period 1141.17, Therefore, section not section 585.340. because 30, 1992, on June period a date that fell before moved to expired plaintiff set, at the time that motion was made the court had no superior discretion in the matter. Dismissal was mandatory. that,
The hold majority because could not her action to trial plaintiff bring between the date the arbitration award became final the effective date default, the order relief conditionally defendant’s motion for granting (c) that time was tolled under subdivision of section 583.340 as a period when period the action to trial. . . was “[b]ringing impossible, impractica- ble, or futile.” here, however, (c)
Subdivision of section 583.340 has no as application 1141.17, arbitration, which of actions submitted to is governs tolling statutory 1All references are to the Code of Civil Procedure. statute which the more of section
a special supplants general provisions 583.340 as to devoted arbitration-related any part five-year period the final six months of that statutory proceedings except period. Special related to a will over more particular subject govern general provisions even broad include provisions though general provision enough 1859; Code, 3534; (1991) same Civ. (§ Young Woods v. 53 Cal.3d subject. § 315, 613, 455]; (1979) 807 P.2d Tanner Cal.Rptr. People [279 328]; Cal.3d 596 P.2d Warne v. Harkness Cal.Rptr. [156 60 Cal.2d 387 P.2d Seсtion 1141.17 of arbitration-related time as to that time that permits tolling only falls within the last six months within which an action five-year period must be to trial. brought
Section “(a) 1141.17 Submission of an action to arbitration provides: to this shall not pursuant chapter of the time suspend running periods 1.5 specified Chapter 583.110) with Section . (commencing . . except in this section. provided
“(b) If an action is or remains submitted to arbitration to this more than four and six chapter months years after has filed the action, then the time on the date four beginning six months after years has filed the action and on the date on which a ending for de novo trial is filed under section 1141.20 shall not be included in computing five-year period Section 583.310.” specified Therefore, concede, as the under majority
(a), will tolling commence only if the action “is or remains submitted to arbitration to this more than four chapter and six months years after the ante, has filed the plaintiff action.” 437.) (Maj. For reasons that opn., p. however, are not concludes, the explained, majority the fact notwithstanding that the trial court relief granted from default and of permitted filing novo, postarbitration for trial request de that the case did not remain submitted to arbitration until that was filed within the request of meaning section 1141.17. The do not majority that of acknowledge regardless reason for the in the date delay on which defendant’s for trial de request effective, novo became when the order did granting become request effective, the arbitration award was no final. The matter had been longer returned to the same arbitration status other matter any submitted to Therefore, arbitration. the time between the filing the arbitration award and effective date of the order for trial de novo is for indistinguishable of section purposes 1141.17 from the time which a matter during remains submitted to arbitration in a case in which a timely is filed. The request only
time that section 1141.17 tolls is thаt within the last six months of the falling five-year period.
The result of the is majority tolling that available under section holding 583.340 for time between of an arbitration award and the for filing request trial de novo even time though that is not within the last six months of the That constitutes a of time within which to five-year period. grant bring action to trial that would not be available to a whose action was plaintiff date, filed on the same whose arbitration and who was proceeded routinely, forced into a trial de novo defendant who trial de by losing timely sought novo before the last six months of the commenced. five-year period 12, 1991
The on this impact action is illustrative. On November the action went into the last six months before the statute mandated dismissal. novo, is, Had the defendant filed a for trial de filed the timely request 21, 1991, no request by September would have part five-year period Here, been tolled. could not be filed until relief from default was request and the granted sаnctions were on December court-imposed paid 1991. Thus, literal of section 1141.17 would consider the application matter under submission to arbitration until the for trial de novo became request effective and would toll the statute from the date only months, 12, 1991, commencement of the last six November and December 31, 1991, or This is days. more than a who filed already days the action on the same date would have to a case to trial after normally bring arbitration at the same time. Thanks to the ending largess majority, however, in cases like this is not but given days, additional time within which to the action to trial—all of the time from bring 21, 1991, the date the arbitration award became final on until the September 31, 1991, for trial de novo became effective on December including time that is not within the final six-month period.
The offer no majority justification creating nonstatutory exception to the limited allowed section 1141.17.1 find none tolling by and conclude that the rule created which before the final six majority permits tolling months of the commences is to the five-year period contrary legislative *21 intent reflected in section 1141.17.