CORRIGAN, J. —
Plaintiff's lawsuit was dismissed for failure to comply with Code of Civil Procedure
In computing the five-year time frame, the court must exclude any period when the "[p]rosecution or trial of the action was stayed or enjoined." (§ 583.340, subd. (b); hereafter section 583.340(b).) The court must also exclude any time when it was "impossible, impracticable, or futile" to bring the case to trial. (§ 583.340, subd. (c); hereafter section 583.340(c).) The trial court held that neither of those tolling provisions saved this case from dismissal. The Court of Appeal affirmed the dismissal as to all but one defendant. We affirm the Court of Appeal's judgment. As explained in greater detail below, the statutory framework and our own case law recognize that a stay can be either partial or complete. A complete stay will operate to automatically toll the five-year period. A partial stay will not do so unless it results in a circumstance of impossibility, impracticability, or futility. We conclude that the court's order did not effect a complete stay of the prosecution of the action. Nor did the order create a circumstance of impracticability because plaintiff agreed to it, remained in control of the circumstances, and made meaningful progress towards resolving the case during the stay period. Accordingly, the period of the "mediation stay" did not toll the five-year period.
Fannie Marie Gaines and her husband, Milton, owned a home in Los Angeles with an appraised value of $1.25 million. They held over $500,000 in equity in the property. A $554,000 loan with Countrywide Home Loans,
Milton died before the suit was filed. Mrs. Gaines filed a complaint on November 13, 2006, alleging negligence, fraud, intentional infliction of emotional distress, and failure to follow home equity sales contract requirements contained in the Civil Code. She sought rescission and cancellation of the deed transferring ownership of the property.
Once begun, the suit followed an involved procedural journey. Amended complaints and answers were filed and defendants substituted. In November 2009 Mrs. Gaines died and her son, Milton Howard Gaines, was substituted as successor in interest.
On May 19, 2012, Fidelity National Title Insurance Company (Fidelity) moved to dismiss for failure to bring the action to trial within the five-year time frame required by section 583.310. When the motion was filed, the case had been pending for approximately five and a half years. A trial date was scheduled for August 6, 2012. At no time did Gaines move to advance the trial date.
In opposition to the motion, Gaines claimed the five-year period had been tolled several times. In computing the period of pendency, the trial court excluded two months for the delay resulting from Mrs. Gaines's death, and 125 days during which plaintiff sought relief from Lehman's bankruptcy stay. Those rulings are not disputed here. However, the court did not exclude the time during which the court had vacated the trial date and ordered a 120-day
The facts relevant to the question before us are undisputed. In April 2008 Gaines applied for an order to vacate a September 2008 trial date, which was scheduled to occur less than two years into the pendency of the litigation. The application stated that all parties had agreed to vacate the trial date, to stay the action for 120 days, and to participate in mediation. The parties agreed that responses to pending discovery requests would not be stayed. Consistent with this agreement, the trial court's April 3, 2008 order (1) "struck" the current trial date of September 22, 2008; (2) "stayed [the case] for a period of 120 days except that [the] parties are to respond to all previously served and outstanding written discovery"; (3) set a post-mediation and trial-setting conference on July 16, 2008; and (4) directed "all parties ... to participate in good faith in a mediation of all claims in this case within the next 90 days." The ensuing mediation conducted on May 30, 2008, was not successful except that Gaines moved to dismiss one defendant on June 9, 2008, in exchange for the reconveyance of its $150,000 interest in the property.
At a November 6, 2008 status conference, the mediation stay was lifted and an August 29, 2009 trial date was set. The original stay was ordered to last 120 days, but was actually lifted after 217 days. The longer period was occasioned, in part, by judicial reassignments. We analyze the legal question here in terms of the 217-day period between granting and lifting the mediation stay.
The trial court concluded that section 583.340(b) did not apply to this period because there was not a complete stay of the prosecution as required under that exception. It further concluded that the mediation stay did not create a circumstance of impossibility, impracticability, or futility under section 583.340(c). The stay was requested by plaintiff and was not a circumstance beyond plaintiff's control. It was to last only 120 days and did not affect previously served and outstanding written discovery. Further, plaintiff did not demonstrate diligence during the period in question.
The Court of Appeal affirmed the trial court's dismissal as to all defendants but Lehman.
The statutes governing dismissal for delay in prosecution were revised in 1984. (Stats. 1984, ch. 1705, § 5, pp. 6176-6180.) The legislative history makes clear that the revision was prepared by the California Law Revision Commission. The Legislature and commission intended largely to codify, not supplant, the quasi-common law developments in this area that had evolved over the preceding decades. (See Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1366 (1983-1984 Reg. Sess.) as amended July 3, 1984, p. 3 ["`The major purpose of the bill is to clarify ambiguities in the law, to bring the statutes into conformity with case law interpreting them, and to reconcile discrepancies in statutes and cases.'"]; Revised Recommendation Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com. Rep. (1984) p. 916 ["The statutes should accurately state the law. The proposed law codifies the significant case law rules governing dismissal for lack of prosecution...."].) Accordingly, in addition to the statutory language, a substantial body of case law guides our analysis.
Section 1775.7 provides for automatic tolling when mediation is conducted late in the pendency period. (Cf. Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 434 [41 Cal.Rptr.2d 362, 895 P.2d 469] (Howard) [discussing parallel provisions of § 1141.17 governing court-ordered arbitration].) "[T]he five-year statute will only stop running for [mediations] beginning or continuing into the last six months of the five-year period, and then only from the four-year six-month date after filing the action until the date a trial de novo is requested." (Howard, at p. 434.) This mediation, which occurred in the second year of litigation, does not qualify for tolling under section 1775.7. Gaines does not contend otherwise.
The order in this case did not simply direct the parties to mediate. It also struck the scheduled trial date of September 22, 2008, and "stayed [the case] for a period of 120 days except that [the] parties are to respond to all previously served and outstanding written discovery" and "are directed to participate in good faith in a mediation of all claims in this case within the next 90 days." Gaines argues these conditions triggered the exception codified in section 583.340(b) that requires the court to exclude the time during which "[p]rosecution or trial of the action was stayed or enjoined."
Applying our holding in Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 725 [122 Cal.Rptr.3d 331, 248 P.3d 1185] (Bruns), the trial court and Court of Appeal concluded that this stay did not qualify for tolling under section 583.340(b) because it was not a complete stay of all the proceedings in the action. We asked the parties for supplemental briefing on whether the order striking the existing trial date constituted a stay of the "trial of the action" under that section. (Ibid.) We conclude that neither condition was satisfied here.
The label the trial court uses is not dispositive of the inquiry. (Holland v. Dave Altman's R. V. Center (1990) 222 Cal.App.3d 477, 482 [271 Cal.Rptr. 706] (Holland).) What matters is whether the order is functionally in the nature of a stay, which implicates the legislative purposes behind tolling the five-year period, or whether it is functionally in the nature of a continuance, which does not. Accordingly, we do not read too much into the trial court's declaration that the trial date is being "struck," as opposed to "continued" or "stayed." We review the question de novo because it does not hinge on the resolution of factual questions concerning credibility of extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839] (Parsons).)
The appellate court concluded that, notwithstanding the use of the term "`continue,'" the order amounted to a stay of the trial under section 583.340(b). (Holland, supra, 222 Cal.App.3d at p. 482.) The court reasoned that "it is plain ... the court did not intend to postpone trial to any known
By contrast, stipulated continuances that are not tied to any matter outside the parties' control more logically fall under section 583.330. That section provides that the parties may extend the five-year period during which an action must be brought to trial by written stipulation or oral agreement made in open court. (§ 583.330, subds. (a), (b).) The reason for the requirement was given as follows: "The provision [of former section 583] that a written stipulation be entered into was intended to preclude all disputes, with their attendant charges and countercharges of overreaching and unethical conduct, by a requirement that clear and uncontrovertible evidence be presented to the court that the statutory time was deliberately intended to be extended by both parties." (Miller & Lux, supra, 192 Cal. at p. 340 [discussing former § 583]; accord, Taylor v. Shultz (1978) 78 Cal.App.3d 192, 196 [144 Cal.Rptr. 114].) There was no written stipulation or oral agreement here.
We conclude that this order striking the trial date at the parties' request should be construed as a continuance of the trial of the action rather than a stay. The trial was not continued indefinitely. Instead, the date was struck pending two defined contingencies: a definite 90-day period for mediation to occur and a 120-day stay of the proceedings. Neither of the contingencies was extrinsic to the litigation. Both were agreed to by the parties and totally within their control. Neither necessitated a stay of the trial, which was over five months distant. Plaintiff represented that "good cause exist[ed] for granting the parties' request for a continuance of the current trial date" because newly named defendant, Aurora, had not formally appeared or conducted discovery, and defendant Countrywide anticipated filing a motion for summary judgment. (See Cal. Rules of Court, rule 3.1332(c) [grounds for
This order provided that the "case is stayed for a period of 120 days." Nonetheless, it contemplated that the case would move forward during the relevant period in two respects: The parties were ordered to respond to previously served and outstanding discovery and to participate in mediation in an effort to settle the lawsuit. The trial court found this stay was only a partial one that did not qualify for automatic tolling under section 583.340(b). We review the question de novo because it does not hinge on the resolution of factual questions concerning credibility of extrinsic evidence. (Parsons, supra, 62 Cal.2d at p. 865.) As with the stay of trial exception discussed above, the label used in the trial court's order is not dispositive. (Holland, supra, 222 Cal.App.3d at p. 482.)
Cases hold that a stay of proceedings pending the outcome of contractual arbitration tolls the five-year period under section 583.340(b). (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1801 [13 Cal.Rptr.2d 678] (Brock); see Marcus v. Superior Court (1977) 75 Cal.App.3d 204, 212-213 [141 Cal.Rptr. 890] (Marcus); see generally §§ 1281.2, 1281.4.)
Those cases are distinguishable. Contractual arbitration and mediation are different. Contractual arbitration is a remedy distinct from an action at law. Its assertion constitutes a plea in abatement to the civil suit. (Brock, supra, 10 Cal.App.4th at pp. 1793, 1795-1796.) A party seeking to enforce contractual arbitration is statutorily entitled to a stay of pending legal actions. (§ 1281.4.) "Once a court grants [a] petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration" to determine, upon conclusion of the arbitration proceedings, whether an award on the merits requires dismissal of the legal action. (Brock, at p. 1796.) This is so, in part, because the whole point of contractual arbitration is to obviate the need for an action at law. The court in Brock found the distinction between an action at law and a contractual arbitration proceeding critical in deciding that a stay pending contractual arbitration tolled the five-year period under section 583.340(b). (Brock, at pp. 1792-1793, 1796.)
Our construction of section 583.340(b) should encourage, rather than deter, agreements to partial stays and to continuances of the trial within the five-year period as the parties deem necessary. (See § 583.130.) Plaintiffs who desire tolling for the relevant period can achieve it by obtaining the defendants' written stipulation or express oral agreement in court. (§ 583.330.) Conversely, the defendants will have the predictability of knowing that, absent such agreement, a stipulated continuance of the trial date or a partial stay of the proceedings will not later be construed to automatically toll the statute.
Gaines argues that defendants, having agreed to the 120-day partial stay, are estopped from claiming that the five-year statute was not tolled for that period. (See § 583.140.) The argument fails.
Substantial evidence supports the trial court's rejection of Gaines's estoppel argument. (Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1423 [107 Cal.Rptr.3d 5] (Jordan); International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 354 [75 Cal.Rptr.2d 178]; In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850 [21 Cal.Rptr.2d 642].) The parties' communications regarding the stay explicitly set forth their expectations. Nowhere did those communications reflect an understanding that the five-year statute would be tolled.
A letter drafted by Aurora and signed by Gaines's counsel memorialized the agreement between them. The letter stated the parties' agreement that Aurora would not be required to enter an appearance or answer the fourth amended complaint for 120 days and that Gaines would not file a request for default judgment during that period. The letter also set forth several agreements designed "to preserve the status quo as between themselves concerning the $865,000 Loan and the Longwood Property," specifically: "(3) Aurora Loan agrees to take no further steps during the Stay to foreclose the $865,000 Loan against the Longwood Property; (4) Aurora Loan agrees to toll as of February 26, 2008 the `running' of the three month period provided for in Civil Code section 2924[, subdivision] (a)(2); (5) Aurora Loan agrees not to post or record or publish a notice of sale as provided for by Civil Code sections 2924[, subdivisions] (a)(3) and [(f)] during the Stay; (6) Aurora Loan and Gaines shall execute a stipulation to toll the recordation of a Notice of Trustee's Sale during the Stay, which stipulation may be filed with the Los Angeles Superior Court for entry by the court...." Although the letter specifically mentioned the tolling effect of these latter agreements, nowhere does it mention tolling of the five-year period for trial.
A letter from Gaines's counsel to the remaining defendants set forth terms consistent with those ultimately adopted in the order. Specifically, it referred to staying the litigation "except for the matters set forth below," which included that the parties were to respond to all previously served and outstanding written discovery and participate in a global mediation of all claims. Again, there was no reference to tolling the five-year dismissal statute.
Finally, Gaines's application in support of the order represented that the parties mutually agreed to the 120-day stay as a means to defer certain filing deadlines under the "Fast Track" system,
Gaines relies on Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431 [96 Cal.Rptr. 571, 487 P.2d 1211] and Woley v. Turkus (1958) 51 Cal.2d 402 [334 P.2d 12], but those cases are distinguishable. In Tresway, the plaintiff served a summons on the defendant within three years of filing the complaint. The defendant requested an extension of time beyond the three-year period to answer. Rather than answer, the defendant moved to quash service of summons and to dismiss for nontimely service under former section 581a. (Tresway, at p. 434.) Tresway held the defendant was estopped from invoking the dismissal statute because its request for an extension had "effectively prevented plaintiff from discovering the defect in service until after the statutory period had run." (Id. at p. 433; see id. at pp. 441-442.) In Woley, the plaintiff, in the fifth year of litigation, filed a motion to advance the case for trial, citing former section 583. (Woley, at p. 404.) The defendant requested a continuance and the parties entered a stipulation to continue the plaintiff's motion for summary judgment and the trial "`beyond [the] five year period....'" (Id. at p. 405.) The defendant subsequently moved to dismiss the action based on the plaintiff's failure to bring the case to trial within five years. The court found the defendant's continuance request, which expressly acknowledged the five-year deadline, estopped it from subsequently seeking dismissal for failure to prosecute. (Id. at pp. 407-409.) Here, by contrast, the stay in question ended well before the five-year period expired. Nor was there
"The question of impossibility, impracticability, or futility is best resolved by the trial court, which `is in the most advantageous position to evaluate these diverse factual matters in the first instance.' [Citation.] The plaintiff bears the burden of proving that the circumstances warrant application of the ... exception. [Citation.] ... The trial court has discretion to determine whether that exception applies, and its decision will be upheld unless the plaintiff has proved that the trial court abused its discretion. [Citations.]" (Bruns, supra, 51 Cal.4th at p. 731.) Under that standard, "[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579], fns. omitted.)
But what is meant by establishing a condition of impossibility, impracticability, or futility in the first instance? The question depends on both the timing and nature of the interference. It is well established that "`"[e]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation." [Citation.]'" (Bruns, supra, 51 Cal.4th at p. 731, quoting Sierra Nevada, supra, 217 Cal.App.3d at p. 472.) "`Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions.'" (Bruns, at p. 731, quoting Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532 [255 Cal.Rptr. 781]; see Bruns, at p. 732; accord, Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 548 [105 Cal.Rptr. 339, 503 P.2d 1347]; J. C. Penney, supra, 52 Cal.2d at p. 670.) This rule reflects the Legislature's understanding that a reasonably diligent plaintiff should be able to bring the case to trial within the relatively lengthy period of five years notwithstanding such ordinary delays. (See § 583.130 ["a plaintiff shall proceed with reasonable diligence in the prosecution of an action..."].) To hold otherwise would allow plaintiffs to litigate piecemeal every period, no matter how short, in which it was literally impracticable to try the case, thus rendering the statute "utterly indeterminate, subjective, and unadministerable." (Sierra Nevada, at p. 472.)
On this record, the trial court was within its discretion to conclude that the time attributable to the partial stay did not qualify for tolling under section 583.340(c). The parties participated in mediation during that time, which was a meaningful attempt to move the litigation forward to resolution. Shortly after the mediation and during the stay period, Gaines reached a settlement with United Mortgage Company and filed a request to dismiss that defendant. Other named defendants were relieved of certain filing deadlines, but not for an inordinately long period. And nothing prevented Gaines from conducting her own trial preparation during this time. Indeed, Gaines announced ready for trial against all named defendants in August 2009, three years into the litigation. Nothing about these circumstances elevated an ordinary delay agreed to by the parties into an extraordinary one.
The trial court was within its discretion to conclude that the circumstances of the partial stay were not beyond Gaines's control. Gaines voluntarily agreed to mediation upon the belief that it would "possib[ly] ... resolv[e] all of th[e] case or at least major portions of it[,] ... thereby simplifying and shortening the trial of any unresolved issues." Gaines also agreed to the partial stay with full understanding that it would relieve defendants of certain filing deadlines during the specified period. Gaines represented to the court that the partial stay would benefit all parties by saving attorneys' fees and costs during the mediation period.
Gaines further argues that the trial court abused its discretion by failing to exclude the 97 days between the date the partial stay was supposed to expire and the date it was actually lifted, during which time there was a series of judicial assignments. Assuming, without deciding, that the stay did not terminate automatically, we reject plaintiff's argument with one minor exception.
By its own terms, the partial stay was to last 120 days (i.e., from Apr. 3, 2008, to Aug. 1, 2008). At the trial-setting conference on July 16, 2008, the parties appeared before Judge Kalin, sitting temporarily for Judge Lee, who was out of the country. Judge Kalin indicated that the case would be reassigned. On September 4, 2008, the case was reassigned to Judge Barbara Meyers, but she was peremptorily challenged on September 12, 2008. (§ 170.6.) On October 2, 2008, the case was reassigned to Judge Rex Heeseman, and a status conference was set for November 6, 2008. On November 6, 2008, Judge Heeseman lifted the stay.
While this conclusion brings an end to plaintiff's suit, that is what the five-year statute is designed to do. The five-year rule is mandatory and dismissal for noncompliance is required. (§ 583.360, subd. (b).) The dissent protests that today's result "reward[s] plaintiff for working cooperatively with an opposing party by depriving her of her day in court." (Dis. opn. of Kruger, J., post, at p. 1105.) While attempts to work cooperatively are to be lauded, they do not absolve litigants from the obligation to prosecute claims within the statutory guidelines. Established case law advised Gaines to seek an express stipulation from the parties that the agreed-upon postponements would extend the five-year period. (J. C. Penney, supra, 52 Cal.2d at p. 669.) Gaines did not do so. Our holding affords due deference to the trial court's unique ability to determine, based on all of the facts before it, that Gaines did not demonstrate a circumstance of impossibility, impracticability, or futility arising from this period. (Bruns, supra, 51 Cal.4th at p. 731.)
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., and Cuéllar, J., concurred.
KRUGER, J., Dissenting. —
Under the Code of Civil Procedure, the five-year limit for bringing an action to trial is tolled during periods when "[p]rosecution or trial of the action was stayed or enjoined" or "[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile." (Code Civ. Proc., § 583.340, subds. (b), (c) (hereafter section 583.340(b) and section 583.340(c)); see id., § 583.310.) Plaintiff in this case agreed with one of the defendants to seek a stay of the trial court proceedings in order to permit defendant to retain counsel and prepare and file its responsive pleading, as well as to permit the parties to attempt to settle their dispute out of court. The trial court gave its approval, striking an existing trial date and ordering that the action be stayed for a period of 120 days. The court today concludes that the 120-day period during which the action was stayed qualifies neither as a period when "[p]rosecution or trial of the action was stayed" (§ 583.340(b)) nor as a period when "[b]ringing the action to trial" was "impracticable" (§ 583.340(c)). The result is to reward plaintiff for working cooperatively with an opposing party by depriving her of her day in court. Because that
The facts relevant to the question before us are, as the majority says (maj. opn., ante, at p. 1089), not in dispute. The history of the stay at issue in this case, however, warrants some elaboration.
In November 2006, plaintiff Fannie Marie Gaines filed a complaint against defendants A.J. Roof, Josh Tornberg, and several others, including Countrywide Home Loans, Inc. (Countrywide), and Fidelity National Title Insurance Company (Fidelity). The complaint alleged that she and her husband had been deceived into selling their home to Tornberg under threat of foreclosure. The complaint sought rescission and cancellation of the deed transferring ownership of the property. Due to various complications, however, the parties were unable to clearly identify the entity that held the title to the property pursuant to a loan taken out by Tornberg. After an extended dispute on this subject, Gaines determined that the holder of the title was Aurora Loan Services, LLC (Aurora). In January 2008, she amended her complaint to name Aurora as a defendant.
In March 2008, with its responsive pleading already overdue, Aurora entered into a written agreement with Gaines to stay the case. The agreement, dated March 20, 2008, recited that Aurora "needs additional time to retain California counsel to represent its interests in this action and to prepare and file its responsive pleading," and that "Gaines and Aurora Loan enter into this letter agreement to preserve the status quo ... and to afford them time to explore resolution of this case...." The parties agreed, among other things, "that (1) Aurora Loan shall not be required to enter an appearance, and/or answer ... for 120 days from the date of this letter (`Stay'); (2) Gaines shall not file a request for default judgment ... during the Stay; (3) Aurora Loan agrees to take no further steps during the Stay to foreclose the $865,000 Loan ...; (7) Gaines' counsel will take the necessary steps to petition the Los Angeles Superior Court and request that the Court formally approve the Stay; and (8) ... Gaines' counsel agrees to coordinate with all party defendants an in person, non-binding mediation to occur before expiration of the Stay to confidentially discuss if a global resolution can be reached between all parties...."
In a letter dated March 31, 2008, all parties confirmed their agreement that "1. The Court strike the current September 22, 2008 Trial Date, set this case for a Trial Setting Conference on or after July 16, 2008 and enter its order
On April 3, 2008, Gaines filed an "Ex Parte Application for Order (a) Striking Existing Trial, Final Status Conference and Post Mediation Conference Dates, (b) Staying Case for 120 Days, (c) Setting a Future Trial Setting Conference Date and (d) Directing All Parties to Participate in Good Faith in a Mediation of All Claims Within the Next 90 Days." The motion asked for an order "(a) striking the current Trial Date ... (b) staying this action for 120 days, except for responding to previously served and outstanding written discovery, (c) setting a Trial Setting Conference date on or after July 16, 2008, and (d) directing all parties ... to participate in good faith in a mediation of all claims...."
The motion stated that "Aurora Loan wants to explore settlement prior to making an appearance ... [and] an order striking the current trial date and staying this action for 120 days is needed to accomplish these goals...." The memorandum of points and authorities in support of the request for a stay adds that "Defendant Countrywide Home Loans, Inc. (`Countrywide') is willing to participate in this mediation only if it does not prejudice its rights to prosecute a summary judgment ... and as such there is a need to strike the current trial date and to stay this litigation for a period of time."
On that same day, April 3, 2008, the superior court issued the following order: "(A) The current Trial Date of September 22, 2008, the current Final Status Conference Date of September 12, 2008, and the current Post Mediation Conference Date of August 19, 2008 and Discovery Cut-Off Date are struck; [¶] (B) This case is stayed for a period of 120 days except that parties are to respond to all previously served and outstanding written discovery; [¶] (C) This case is set for a Post Mediation and Trial Setting Conference on July 16, 2008, at 8:30 a.m. in Department 33; and [¶] (D) All parties are directed to participate in good faith in a mediation of all claims in this case within the next 90 days."
In Code of Civil Procedure section 583.340, the Legislature instructed that, in computing "the time within which an action must be brought," courts must exclude certain periods of time, including "the time during which" "[p]rosecution or trial of the action was stayed or enjoined" (§ 583.340(b)) and during which "[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile" (§ 583.340(c)). "[T]he evident purpose" of this provision is, as one court has observed, "to exclude from the mandatory dismissal provision time periods during which the case could not be brought to trial. The absence of trial court jurisdiction to try it ... is one reason; a court order barring the trial (by a stay or injunction) is another." (Holland v. Dave Altman's R. V. Center (1990) 222 Cal.App.3d 477, 482 [271 Cal.Rptr. 706] (Holland).) In construing this provision, the Legislature has instructed that we are generally to prefer "the policy favoring trial or other disposition of an action on the merits" over "the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action." (Code Civ. Proc., § 583.130 (hereafter section 583.130).)
The threshold question in this case is whether all or part of the period following the trial court's order entering the stay should be excluded from the five-year time frame as a period during which "[p]rosecution or trial of the action was stayed or enjoined." (§ 583.340(b).) Giving this language its "usual and ordinary meaning," as we generally must do (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501 [247 Cal.Rptr. 362, 754 P.2d 708]), I would think that the answer to that question is yes: The period during which the trial court stayed the action counts as a period during which the prosecution (if not also the trial) of the action was stayed.
In reaching its contrary conclusion, the majority begins not with the plain language of the statute, but with our decision in Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717 [122 Cal.Rptr.3d 331, 248 P.3d 1185] (Bruns). Bruns concerned "whether a stay of the `prosecution' of the action under section 583.340(b) includes a stay of specific proceedings, such as a stay of discovery, while other aspects of the action may go forward." (Bruns, supra, 51 Cal.4th at pp. 721-722.) Bruns answered that question in the
As the court read the statute in Bruns, then, a "partial" stay that does not halt "all the proceedings in an action" will toll the five-year clock only if it is the sort of stay that — like a "complete" stay — makes it "impossible, impracticable, or futile" to bring the action to trial under section 583.340(c). The question thus becomes whether the stay at issue here was that sort of stay.
The stay at issue was not simply a stay of discovery or other "specific proceedings," as in Bruns. It was just about the opposite: The trial court's order struck a scheduled trial date and put a temporary halt to all judicial proceedings with respect to all parties, with the minor exception of the exchange of responses to previously served and outstanding written discovery. (The record does not reveal whether any outstanding discovery responses were in fact exchanged.) Labels, of course, cannot be dispositive. But given the comprehensive scope of the order, it is not surprising that the trial court referred to "the case" — not merely certain "proceedings" — as having been stayed. As Justice Rubin wrote in his dissenting opinion in the Court of Appeal, if this was a "partial" stay under Bruns, "it was barely so."
Were we writing on a blank slate, I would consider that 120-day stay to be a stay of the prosecution of the action that is excluded from the computation of the period for trial under section 583.340(b). But even if a stay is not a "stay" under section 583.340(b) if it allows the court proceedings to continue in any respect, no matter how trivial, the time for bringing the case to trial
If there were any doubt on the subject, it ought to be dispelled by the rule of construction prescribed in section 583.130. That provision tells us that, although it is a "policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action ... the policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter." (Ibid.)
In Bruns, we explained that our restrictive interpretation of the term "stay" in section 583.340(b) is consistent with this policy favoring trial because, even if the bright-line exclusion of subdivision (b) is unavailable, a plaintiff may always turn to "the more flexible subdivision (c) of the provision, which permits trial on the merits when appropriate in situations not governed by subdivision (b)." (Bruns, supra, 51 Cal.4th at p. 729.) If Bruns is to be taken at its word, then a stay that just misses the mark under subdivision (b) ought to pass with flying colors under section 583.340(c). The alternative — to give a restrictive reading to both prongs of the computation statute — would hardly comport with either the Legislature's apparent intent in enacting the exclusion for stay periods in section 583.340(b) or its instruction to err on the side of interpreting the statute to allow a plaintiff her day in court.
The majority gives three reasons in support of its conclusion that the stay period at issue in this case properly counted against plaintiff's five-year time limit. First, the majority emphasizes that the stay order contemplated that the parties would use the 120-day period to, among other things, attempt to resolve their dispute out of court, and, toward that end, directed them to
In my view, this argument rests on a flawed premise. Mediation is indeed a means by which parties might settle a lawsuit, as are more informal settlement discussions. But while mediation, like other settlement discussions, may obviate the need for continued pursuit of litigation, it is not part of the litigation itself. Mediation is, rather, "`an alternative to litigation ... [that] provides a simple, quick, and economical means of resolving disputes.'" (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 578 [80 Cal.Rptr.3d 83, 187 P.3d 934], italics added; see also Code Civ. Proc., § 1775, subd. (d) [describing mediation as an "alternative[] to trial"]; Cassel v. Superior Court (2011) 51 Cal.4th 113, 132-133 [119 Cal.Rptr.3d 437, 244 P.3d 1080] [noting that mediation can resolve "disputes by means short of litigation" and describing mediation as an "alternative means of resolution"].)
In any event, if the prospect that the parties would use the stay period to attempt to settle their differences out of court sufficed to disqualify the stay under section 583.340, then it is hard to imagine what kind of court-ordered stay would qualify for tolling under the statute. The logical consequence of this view would be that even a stay order that halted court proceedings in every conceivable respect would not stop the five-year clock if it permitted the parties to discuss settlement out of court. I am not aware of any court that
Perhaps by its italicized reference to the court order "directing [the parties] to mediate" (maj. opn., ante, at p. 1095), the majority means to suggest that there is something special about the court's order to "participate in good faith in a mediation of all claims" that specially disqualifies the stay under section 583.340. If so, it is not clear what, precisely, that something might be. The majority asserts that by its order, the court "incorporat[ed] the procedure and rules that govern mediation into the prosecution of the case." (Maj. opn., ante, at p. 1095.) How this might have occurred, the majority does not explain.
Second, the majority reasons that the stay "did not qualify for tolling under section 583.340(c)" because, while the stay was in effect, "nothing prevented Gaines from conducting her own trial preparation during this time." (Maj. opn., ante, at p. 1102.) By this reasoning, the majority would all but read section 583.340(b) out of the statute. Under any stay order — even a "complete" stay order within the meaning of Bruns — the parties are always free to conduct their own trial preparation. True, depending on the circumstances that gave rise to the stay, trial preparation may seem, as a practical matter, inefficient or premature. But the possibility that the parties to a stayed action might make profitable use of the stay period does not render it any less a "stay," nor does it make it any more "practicable" to bring the case to trial while the stay remains in effect. To hold otherwise gives insufficient weight to the Legislature's determination that a court-ordered stay of the prosecution
Finally, the majority asserts that "`[f]or the tolling provision of section 583.340(c) to apply, there must be "a period of impossibility, impracticability or futility, over which plaintiff had no control...."'" (Maj. opn., ante, at p. 1102.) The majority concludes "that the circumstances of the partial stay were not beyond Gaines's control" because Gaines voluntarily agreed both to mediation and to the stay, and could have sought to have the stay vacated before it expired. (Maj. opn., ante, at p. 1103.)
In my view, this reasoning, too, is fundamentally flawed. Begin with the text: The words "over which plaintiff had no control" do not appear anywhere in Code of Civil Procedure section 583.340 — although similar language does appear in the parallel provision governing the calculation of the three-year period during which service must be made. (See Code Civ. Proc., § 583.240 (hereafter section 583.240) ["In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which ...: [¶] ... [¶] (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control." (italics added)].) As a general rule, when a legislature "`includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [it] acts intentionally and purposely in the disparate inclusion or exclusion.'" (Russello v. United States (1983) 464 U.S. 16, 23 [78 L.Ed.2d 17, 104 S.Ct. 296]; see also, e.g., People v. Trevino (2001) 26 Cal.4th 237, 242 [109 Cal.Rptr.2d 567, 27 P.3d 283] ["When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning."].) Applying that rule in Bruns, we refused to "engraft onto subdivision (b) an exception that the Legislature explicitly included in section 583.240 but did not include in section 583.340(b)." (Bruns, supra, 51 Cal.4th at p. 727.) The same result ought to obtain here.
The difference in the wording of the two provisions reflects a basic difference in their functions. The primary purpose of the dismissal statutes is to ensure that plaintiffs prosecute their cases with "reasonable diligence." (§ 583.130.) From that standpoint, there are significant differences between the timing of service and the timing of bringing a case to trial. As the California Law Review Commission comment to section 583.240 observes, that provision is designed to advance "one aspect of the policy announced in Section 583.130 — plaintiff must exercise diligence — and recognizes that service, unlike bringing to trial, is ordinarily within the control of the plaintiff." (Revised Recommendation Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com. Rep. (1984) p. 933.) In other words,
But the timing of trial, unlike the timing of service, does not rest in the plaintiff's sole discretion, and therefore may be affected by "factors not reasonably" within the plaintiff's sole control. (17 Cal. Law Revision Com. Rep., supra, at p. 936, italics added.) As the Legislature itself recognized, once the wheels of judicial process have been set in motion, bringing the case to trial requires "all parties [to] cooperate." (§ 583.130.) Here, a primary reason for the stay was to permit Aurora, which had just been added as a defendant, to retain California counsel and prepare and file its responsive pleading, as well as to accommodate Aurora's desire to explore settlement before making an appearance. And the parties did not simply agree among themselves to delay the continuation of court proceedings; they sought and received the trial court's approval. Once the court entered the stay order, the order had the same force and effect as any other stay order, including one entered over a party's objection.
It is certainly true that the decision to agree to her opposing party's request was not beyond Gaines's control in any absolute sense; she could have refused. (Of course, had she done so, there is no guarantee her objection would have carried the day; the trial court might well have granted the stay regardless.) But the decision to accommodate an opposing party does not reflect a lack of reasonable diligence. It reflects a willingness to cooperate. To fault Gaines for agreeing to seek the stay — or for failing to seek to lift the stay before its expiration — simply creates unfortunate incentives for the conduct of pretrial litigation, without meaningfully advancing the policies underlying the dismissal statute.
The majority points out that the parties could have extended the five-year time limit by means of a written stipulation or an oral agreement in open court. (Code Civ. Proc., § 583.330; maj. opn., ante, at p. 1093.) That is true, and parties who find themselves in a similar position in the future would be well advised to avail themselves of this option. It is, however, cold comfort to Gaines — who, before the court's opinion today, would have had no reason to believe that any stipulated extension would be necessary. Section 583.330 permits the parties to extend the five-year period without the consent or participation of the trial court. But section 583.340 commands courts to exclude periods during which the "[p]rosecution or trial of the action was stayed" or during which "[b]ringing the action to trial" was otherwise
The "tolling provisions of Code of Civil Procedure section 583.340 must be liberally construed consistent with the policy favoring trial on the merits." (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 693 [145 Cal.Rptr.3d 748].) The majority opinion fails to do so. It instead reaches the textually implausible conclusion that a trial court order that strikes the trial date and stays the case does not toll the five-year period under section 583.340, thereby ensuring that no court will decide the merits of plaintiff's claim. I respectfully dissent.
Liu, J., concurred.
In any event, even if Code of Civil Procedure section 1775 et seq. did apply, nothing in the statutory scheme purports to "incorporate[e] the procedure and rules that govern mediation into the prosecution of the case." (Maj. opn., ante, at p. 1095.)
