Opinion
C058712
2-25-2009
ANGELICA GARNER, Plaintiff and Appellant, v. MOHAMMED SHAREEF, Defendant and Respondent.
Not to be Published
Plaintiff Angelica Garner appeals from a judgment of dismissal after the trial court dismissed her personal injury action for failure to bring it to trial within five years. (Code Civ. Proc., § 583.310.) She contends the trial court erred in declining to toll the five-year period (1) for 179 days, while it was impossible to bring the suit to trial within five years because a courtroom was unavailable; and (2) for 239 days, due to the "mandatory" application of the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appen. § 521 et seq.) Except for one 34-day trial continuance, which may be regarded as having been granted pursuant to the SCRA, the trial court did not err. We shall affirm the judgment.
Undesignated statutory references are to the Code of Civil Procedure.
PROCEDURAL BACKGROUND
This action arises from a September 2001 car accident. Plaintiff filed this action for personal injury and property damage on October 19, 2001.
A. 2002-2003: Discovery, Arbitration and Stipulated Trial Continuance
Defendant answered in July 2002 and began discovery the following month. All did not go smoothly: By December 2002, defendant had filed a motion to continue an arbitration scheduled for January 2003 because plaintiff continued to disobey court orders to comply with defendants discovery requests. The continued arbitration occurred in February 2003; plaintiff rejected the arbitration award and requested trial de novo.
The matter was set first for trial on December 1, 2003. Before trial, defendants counsel wrote to plaintiffs counsel that defendant, a member of the Army National Guard, had been ordered to report for duty in Iraq. He proposed that the trial proceed as scheduled, but that the jury be advised to attribute defendants absence from the proceedings to his military duty. Plaintiffs counsel refused defendants proposed disclosure to the jury, and noted that a scheduling conflict among plaintiffs counsel would otherwise necessitate continuing the December 1, 2003 trial date. The courts minute order of December 1, 2003, states that "[b]y agreement of counsel, the trial was continued to 6/15/04."
B. 2004: Defendants Motion for Continuance and Courtroom Unavailability
In February 2004, defendant filed a motion to continue the trial from June 15, 2004, to "the middle of July" on the grounds that "the United States Army has extended the deployment of his Army National Guard Service Unit in Iraq," and the continuance is justified (among other reasons) pursuant to California Rules of Court, former rule 375(a) (now rule 3.1332(c)) and "to the [former] Soldiers and Sailors Civil Relief Act of 1940, as amended [by title] 50 [United States Code Appendix section] 501[, now the Servicemembers Civil Relief Act]." Alternatively, defendant sought to be allowed to "advise the jury that defendant is not present for the trial as he is currently stationed in Iraq." Defendants motion was supported by a declaration by his attorney that defendants mother had advised counsel his assignment in Iraq had been extended.
On March 9, 2004, the court granted defendants request and placed the matter on the courts trial setting calendar for July 19, 2004, stating: "The court finds good cause for a continuance in that defendants deployment with the Army National Guard in Iraq has been extended through at least mid-July. [¶] In accordance with the [SCRA,] no fee is required for this continuance."
The matter was set for trial assignment on October 20, 2004. "There being no courts available," trial of the matter was "re-set" to March 14, 2005.
C. 2005: Case Is Dismissed and Reinstated
The record indicates that a "[p]ortion" of plaintiffs claim was settled in October 2004. In November 2004, the court issued an order to show cause why the case should not be dismissed and, on January 6, 2005, the case was actually dismissed. It was reinstated on March 3, 2005, and the matter was referred back to arbitration in April 2005.
D. 2006: Second Arbitration
The case proceeded to arbitration for the second time on August 23, 2006. The arbitrator issued his award on October 24, 2006; plaintiff rejected it and requested trial de novo on November 20, 2006.
E. 2007: Motion to Dismiss
A trial setting conference was scheduled for April 16, 2007, at which time trial was set to begin August 7, 2007, with a July 16, 2007 settlement conference. On August 7, the case was preassigned to Judge Jones, and the parties met with him on September 7, 2007, at which time the case was set for trial on November 5, 2007.
While the November trial date was pending, defendant filed this motion to dismiss the action for plaintiffs failure to prosecute. (§ 583.310 [requiring that an action "be brought to trial within five years" after it is commenced].) Moreover, because plaintiff "failed to exercise reasonable diligence at all stages of the litigation," defendant argued, she is not entitled to any tolling of the five-year statute otherwise available for periods when it may have been impossible, impracticable or futile to bring the action to trial.
Plaintiff opposed the motion, arguing that the five-year statute had not run because it was tolled for 216 days due to the 2006 arbitration; for 179 days while there was a lack of available courtrooms; and for 239 days due to "mandatory application of the [SCRA]."
The trial court determined the five-year statutory period for bringing the action to trial had expired on July 19, 2007, and ordered the case dismissed. In so doing, it allowed only one of the three tolling periods urged by plaintiff: It agreed that the action was tolled for 215 days due to the 2006 arbitration, noting that the five-year period is also properly tolled for 58 days while the case was dismissed in 2005.
But the court rejected "[p]laintiffs contention that the statute was tolled for 179 days due to unavailability of courtrooms" because "[t]he lack of a courtroom in 2004 did not make it impossible or impracticable to bring the case to trial in a timely manner." Moreover, plaintiff did not inform the court in August 2007 that the statute would shortly expire.
It likewise rejected plaintiffs assertion that the five-year statute was tolled "for 239 days because of defendants military service . . . . [¶] It is certainly true that defendants military service might well have entitled him to a stay if he was able to show his ability to defend the action was materially affected by reason of his active service. (50 U.S.C App[en]. [§] 521.) However, defendant did not request such a stay. In fact, the record shows that defendant was represented by counsel and was willing to proceed with the trial in his absence. The fact that the trial was continued at plaintiffs insistence does not compel a conclusion that the period of time is tolled for purposes of the running of the [five]-year statute."
Finally, the court noted "for the record that the record is replete with instances of plaintiffs dilatory conduct. Although not requested, discretionary dismissal would also be warranted under . . . section 583.410."
DISCUSSION
I. Applicable Statutes and Standard of Review
Section 583.310 provides that an "action shall be brought to trial within five years after the action is commenced against the defendant."
The five-year period may be extended by written stipulation or oral agreement made in open court. (§ 583.330.) Also, the five-year period is tolled while (1) the jurisdiction of the court is suspended, (2) the action has been stayed or enjoined, or (3) bringing the action to trial is impossible, impracticable, or futile. (§ 583.340.) "`"The purpose of the [five-year] statute is `to prevent avoidable delay for too long a period."" (Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328 (Tamburina).) If the action is not brought to trial in the time prescribed by statute, it "shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties." (§ 583.360, subd. (a).)
Dismissal for failure to bring an action to trial within five years is described as mandatory and often is contrasted with the discretionary dismissals for shorter delays set forth in sections 583.410 and 583.420. (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 358, pp. 808-809; see Hughes v. Kimble (1992) 5 Cal.App.4th 59, 65, fn. 5 [describing the mandatory and discretionary provisions of the prior statutory scheme, former § 583].)
The mandatory nature of dismissal under section 583.310 is clear from the statute itself. First, subdivision (b) of section 583.360 provides: "The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." Second, both section 583.310 and subdivision (a) of section 583.360 use the word "shall," which generally is regarded as mandatory. (E.g., Pacific Law Group: USA v. Gibson (1992) 6 Cal.App.4th 577, 580 [phrase "court shall confirm" in section 1286 interpreted to mean confirmation was mandatory].)
However, notwithstanding the mandatory language in the statute, the determination of whether the prosecution of an action was indeed impossible, impracticable, or futile during any period of time, and hence, the determination of whether the impossibility exception to the five-year statute applies, is a matter within the trial courts discretion. Such determination will not be disturbed on appeal absent an abuse of discretion. (De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 371 (De Santiago); Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271 (Sanchez).) In contrast, the statutes application to undisputed facts we review de novo. (Tamburina, supra, 147 Cal.App.4th at p. 328.)
II. The Trial Court Acted Within Its Discretion in Declining to Find Tolling of 178 Days Due to Courtroom Unavailability
Plaintiff argues on appeal the five-year statute was tolled for a total of 178 days while there was no courtroom in which to try her case: a total of 146 days from October 20, 2004, through March 14, 2005, and 32 days from August 7, 2007, through September 7, 2007. This portion of plaintiffs tolling argument rests on "impossibility" or "impracticability" pursuant to section 583.340, subdivision (c).
Plaintiff argued below that courtroom unavailability on these same dates entitled her to 179 days of tolling. Neither calculation is correct. The two time frames during which plaintiff claims no courtroom was available total 176 days.
Not every period of time during which it is impossible or impracticable for a plaintiff to bring the case to trial actually tolls the running of the five-year period. (Tamburina, supra, 147 Cal.App.4th at p. 329; Sanchez, supra, 109 Cal.App.4th at p. 1270.)
Rather, a plaintiff seeking to invoke the tolling provision of section 583.340 for impossibility or impracticability bears the burden of showing "(1) a circumstance of impracticability; (2) a causal connection between that circumstance and the plaintiffs failure to move the case to trial; and (3) that the plaintiff was reasonably diligent in moving the case to trial." (De Santiago, supra, 155 Cal.App.4th at p. 372, quoting Tamburina, supra, 147 Cal.App.4th at pp. 328-329, 333, 336; see also Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 432 [discussing prior case in which court found party "to have been reasonably diligent, and therefore within the `impossible, impracticable, or futile exception"].)
Some courts have described "`"whether the plaintiff exercised reasonable diligence in prosecuting its case"" as "`"[t]he critical factor"" in assessing what is impossible, impracticable or futile. (Sanchez, supra, 109 Cal.App.4th at p. 1270, quoting Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502 ["`reasonable diligence alone is not sufficient to protect a party from an involuntary dismissal; rather, reasonable diligence constitutes a guideline by which to assess the existing exceptions of impossibility, impracticability, or futility"].)
A plaintiff seeking to toll the five-year rule based on impossibility or impracticality must show she has "exercise[d] reasonable diligence at all stages of the proceedings" and the level of diligence required increases as the five-year deadline approaches. (Tamburina, supra, 147 Cal.App.4th at p. 334, italics added; Sanchez, supra, 109 Cal.App.4th at p. 1270.)
Applying these principles, the trial court was within its discretion to reject plaintiffs claim that it was impossible or impracticable for her to bring the case to trial within the five-year period because of courtroom unavailability. Although plaintiff attempts on appeal to lay at defendants feet the responsibility for some of the delay, she cannot escape the fact that she, not defendant, was responsible for moving the matter toward trial. Nor has she demonstrated here that she exercised the requisite diligence at all stages of the proceedings; to the contrary, the record shows delay in 2002 attributable to her failure to timely respond to discovery, a delay of nearly one year between April 2005 (when the case was referred to arbitration a second time) and April 2006 (when plaintiff asked that a case management conference be scheduled), and other important periods during which plaintiff appears to do have done nothing of significance to advance the case to trial.
Nor did the court err in concluding plaintiff failed to show a causal relationship between courtroom unavailability for 146 days from October 20, 2004, through March 14, 2005, and her failure to bring the case to trial before mid-2007. (See De Santiago, supra, 155 Cal.App.4th at p. 372; Sanchez, supra, 109 Cal.App.4th at p. 1272.) The failure to bring the action to trial within five years was not due to the unavailability of a courtroom during this period. In fact, the trial court properly found that, for nearly two months during the same period—January 6 to March 3, 2005—the case could not have come to trial because it had inadvertently been dismissed.
Finally, the unavailability of a courtroom for 31 days from August 7 through September 7, 2007, did not create a period of impracticability. Before the April 16, 2007 trial setting conference, or thereafter, plaintiff could have brought a motion to advance the trial date before the five-year period expired. "`"Where a plaintiff possesses the means to bring a matter to trial before the expiration of the five-year period by filing a motion to specially set the matter for trial, plaintiffs failure to bring such motion will preclude a later claim of impossibility or impracticability."" (Sanchez, supra, 109 Cal.App.4th at p. 1274.) Plaintiff never alerted the court to the fact that the five-year deadline was fast approaching.
On this record, we perceive no abuse of discretion in the trial courts rejection of plaintiffs claim of impracticability.
III. The Only Arguable Application of the SCRA Would Toll the Five-year Period No More Than 34 Days
The trial court refused plaintiffs request to toll the five-year period for 239 days while defendant was on active duty with the Army National Guard in Iraq. She contends on appeal that application of the SCRA was "mandatory" and thereby automatically operated to toll the five-year period within which the case must have proceeded to trial. She is mistaken.
"Federal law has long provided that members of the military services may obtain a stay of civil litigation when military duties materially affect their ability to participate in the proceeding. Prior to 2003, the stay and other provisions protecting the rights of servicemembers were set forth in the Soldiers and Sailors Civil Relief Act of 1940. (Former 50 U.S.C. Appen. §§ 501-591.) In 2003, that act was amended and renamed as the SCRA. (Pub.L. No. 108-189, § 1 (Dec. 19, 2003) 117 Stat. 2835, codified as amended at 50 U.S.C. Appen. §§ 501-596.) The SCRA applies to all cases that were not final on December 19, 2003. (Pub.L. No. 108-189, § 1, 117 Stat. 2835.)" (George P. v. Superior Court (2005) 127 Cal.App.4th 216, 223.)
Under the SCRA, a party to a civil proceeding who has appeared but whose ability to participate is interrupted by military obligations is entitled to a 90-day stay and may obtain additional stays as circumstances require. (50 U.S.C. Appen. § 522.) The court must stay the proceeding for not less than 90 days when requested in an application that sets forth the "manner in which current military duty requirements materially affect the servicemembers ability to appear," and includes a "letter or other communication from the servicemembers commanding officer stating that the servicemembers current military duty prevents appearance and that military leave is not authorized . . . at the time of the letter." (50 U.S.C. Appen. § 522(b)(2)(A), (B).) If these conditions for a stay are met, the court may also issue one on its own motion. (50 U.S.C. Appen. § 522(b)(1).)
In relevant part, title 50 United States Code Appendix section 522 (as amended Dec. 19, 2003 & Dec. 10, 2004) provides:
"(a) APPLICABILITY OF SECTION.—This section applies to any civil action or proceeding in which the . . . defendant at the time of filing an application under this section—
"(1) is in military service or is within 90 days after termination of or release from military service; and
"(2) has received notice of the action or proceeding.
"(b) STAY OF PROCEEDINGS.—
"(1) AUTHORITY FOR STAY.—At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.
"(2) CONDITIONS FOR STAY.—An application for a stay under paragraph (1) shall include the following:
"(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemembers ability to appear and stating a date when the servicemember will be available to appear.
"(B) A letter or other communication from the servicemembers commanding officer stating that the servicemembers current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.
"(c) APPLICATION NOT A WAIVER OF DEFENSES.—An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).
"(d) ADDITIONAL STAY.—
"(1) APPLICATION.—A servicemember who is granted a stay of a civil action or proceeding under subsection (b) may apply for an additional stay based on continuing material affect of military duty on the servicemembers ability to appear. Such an application may be made by the servicemember at the time of the initial application under subsection (b) or when it appears that the servicemember is unavailable to prosecute or defend the action. The same information required under subsection (b)(2) shall be included in an application under this subsection.
"(2) APPOINTMENT OF COUNSEL WHEN ADDITIONAL STAY REFUSED.—If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding."
Here, the trial court rejected the notion the SCRA operated at all in this case because "defendant did not request such a stay. In fact, the record shows that defendant was represented by counsel and was willing to proceed with the trial in his absence" and "the trial was continued at plaintiffs insistence."
As to the period of December 1, 2003, to June 15, 2004, the record supports the courts conclusion. Although defense counsel informed plaintiff that defendant, a member of the Army National Guard, had been ordered to report for duty in Iraq and would not be available for the trial then scheduled to begin on December 1, 2003, he neither asked plaintiff for a continuance of the trial nor made a motion to the trial court for relief under the SCRA. Indeed, plaintiffs counsel took the position that a scheduling conflict among plaintiffs counsel required a continuance of the December 1, 2003 trial date, and the courts minute order reflects that the trial date was continued for more than six months from December 1, 2003, to June 15, 2004 "[b]y agreement of counsel."
The record shows, however, that defendant did seek to continue the trial from June 15, 2004, to "the middle of July," because "the United States Army has extended the deployment of his Army National Guard Service Unit in Iraq," and the continuance was justified by (among other reasons) "the Soldiers and Sailors Civil Relief Act of 1940, as amended [by title] 50 [United States Code Appendix section] 501."
Defendants request did not comport with the SCRA, however, in that it was not supported by a "letter or other communication from the servicemembers commanding officer stating that the servicemembers current military duty prevents appearance and that military leave is not authorized . . . at the time of the letter." (50 U.S.C. Appen. § 522(b)(2)(B).) Rather, it was supported only by a declaration from defense counsel that, according to defendants mother, his assignment in Iraq would extend beyond the June 14, 2004 trial date. Accordingly, defendants request did not meet the requirements of the SCRA, did not constitute a proper invocation of the SCRA, and could not trigger a "mandatory" application of the Act, as plaintiff argues on appeal.
Indeed, it is unclear whether the trial courts order granting defendants request for a continuance from June 15 to mid-July 2004, was based on a purported application of the SCRA. Defendant sought relief from the scheduled trial date on two grounds: California Rules of Court, former rule 375(a) (now rule 3.1332(c)), and the predecessor to the SCRA. Although the court stated it was charging no fee for the continuance, "[i]n accordance with the Soldiers[] and Sailors[] Relief Act," it found "good cause for a continuance" due to defendants deployment: "good cause" is a standard applicable to requests for a continuance of trial under California law, not under the SCRA. (Cal. Rules of Court, rule 3.1332(c)(2); see, e.g., Nye v. 20th Century Ins. Co. (1990) 225 Cal.App.3d 1041, 1045 [citing former rule 375(b)].)
Even were we to agree with plaintiff that defendant obtained a continuance of the trial date from June 15 to July 19, 2004, pursuant to the SCRA—and that the continuance granted on defendants request rendered it "impossible" to proceed with the trial, so as to toll the running of the five-year statute—the statute would toll for only an additional 34 days.
The trial court found plaintiff was required by the statutory five-year deadline to have brought this action to trial on or before July 19, 2007. Adding 34 days would extend the deadline only to August 22, 2007, well before defendant moved to dismiss the case. An additional 34 days of tolling would make no change in the outcome of defendants motion to dismiss.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
HULL, J.