Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV27875
RAYE, Acting P. J.Petitioner Richard E. Wilmshurst appeals from a judgment of dismissal of his petition for writ of mandate after he failed to bring it to trial within five years as mandated by statute. (Code Civ. Proc., § 583.310.) Wilmshurst contends the trial court should have completely tolled the five-year period because he suffers from stroke-related memory problems and it was impossible for him to bring the suit to trial.
Undesignated statutory references are to the Code of Civil Procedure.
Wilmshurst has not shown the trial court abused its discretion in finding he failed to establish a circumstance of impossibility necessary to toll the five-year period. We shall affirm the judgment.
PROCEDURAL BACKGROUND
The Petition, its Dismissal, and Reinstatement
Wilmshurst filed this pro se petition for writ of administrative mandamus and damages on September 21, 2001, against respondents Central Valley Regional Water Quality Control Board and the State Water Resources Control Board. He sought to stay and set aside an administrative civil penalty order requiring him to pay $25,000 and remove underground petroleum storage tanks on his property.
The trial court dismissed the petition because Wilmshurst failed to include a proof of service with his filing.
Wilmshurst appealed the dismissal, and this court reversed the trial court in an unpublished opinion on July 24, 2003. (Wilmshurst v. Central Valley Regional Water Quality Control Bd. (July 24, 2003, C039727) [nonpub. opn.].) After the remittitur issued, the trial court on September 30, 2003, set aside (1) its order denying the motion for reconsideration; (2) set aside its order dismissing the petition; and (3) granted the motion for reconsideration, thereby ordering the petition reinstated.
Wilmshurst took no further action on the petition until a motion to dismiss was filed on October 16, 2008.
The Motion to Dismiss
On October 16, 2008, respondent Central Valley Regional Water Quality Control Board (the Regional Board) filed a motion to dismiss the petition for lack of prosecution because petitioner took no action in the case for the more than five years since its reinstatement. (§ 583.310 [requiring that an action “be brought to trial within five years” after it is commenced].) Alternatively, the Regional Board urged the trial court to exercise its discretion to dismiss the action for Wilmshurst’s failure to advance the matter to trial within two years following the filing of a remittitur. (§ 583.420, subd. (a)(3)(C).)
Initially filed on October 10, 2008, the motion to dismiss was refiled on October 16.
Wilmshurst conceded “[t]here has been no action on this case since 2003, ” but argued the five-year period should be tolled because it had been impossible to bring the action to trial in the intervening five years after he suffered “a severe stroke in 1997” and “does not remember the litigation” of this matter that occurred between 2001 and 2003. He analogized his circumstances to a case in which tolling was allowed following the illness of the plaintiff’s counsel.
In his accompanying declaration, Wilmshurst averred he suffered a severe stroke on May 28, 2008, and had suffered “several mini-strokes” during the preceding 11 years, any one of which “may wipe out my memory for a period of time”: “I did not remember any of the details of the Water Board action in the Calaveras Superior Court or the Court of Appeal, Third District or that the case was not final. In fact until the Motion to Dismiss was filed by [respondents’ counsel]; this was the first time my memory was jogged about the case for at least five years. [¶]... The fact of the litigation was mentioned in a settlement conference with the Toxic Waste people in Sacramento, however, I assumed the case was final and I had prevailed. [¶]... [¶]... In the Water Board litigation I forgot all the details after the hearing before the Toxic Waste Board in Sacramento. [¶]... It was my understanding that the people with Toxic Waste were unhappy because I was successful with the Water Board litigation that I believed to be over at that time.”
The Regional Board replied that Wilmshurst has not shown, and cannot show, he was disabled by the 1997 stroke; it did not prevent him from filing the instant action, challenging the trial court’s dismissal, appealing to this court, arguing in this court, and prevailing in this court. Nor, it argued, can he show he was disabled from participating in litigation in 2003, 2004, 2005, 2006, 2007, or the first few months of 2008, since he was able, during those years, to pursue other litigation pro se, including actions in federal court and before the Ninth Circuit Court of Appeals.
Following a hearing, the court granted the motion to dismiss.
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 (a) the jurisdiction of the court is suspended, (b) the action has been stayed or enjoined, or (c) bringing the action to trial is impossible, impracticable, or futile. (§ 583.340.) “‘“[T]he purpose of the [five-year] statute is ‘to prevent avoidable delay for too long a period.’”’ [Citation.]” (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).)
Courts often refer to these three conditions of section 583.340, subdivision (c) collectively as “the impossibility exception.” (See Hughes v. Kimble (1992) 5 Cal.App.4th 59, 66 (Hughes); Perez v. Grajales (2008) 169 Cal.App.4th 580, 589, fn. 8 (Perez).)
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, supra, 5 Cal.App.4th at p. 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 during any period of time is a fact-specific inquiry conducted by the trial court, and we do not disturb its decision on appeal absent an abuse of discretion. (Perez, supra, 169 Cal.App.4th at pp. 590-591; 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).)
A plaintiff seeking to invoke the tolling provision of section 583.340 for impossibility bears the burden of showing “(1) a circumstance of impracticability; (2) a causal connection between that circumstance and the plaintiff’s 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, citing 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 (Howard).) Indeed, one seeking to toll the five-year rule based on impossibility must show he 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; Sanchez, supra, 109 Cal.App.4th at p. 1270.) And some courts have described “‘“whether the plaintiff exercised reasonable diligence in prosecuting its case”’” as “‘“[t]he critical factor”’” in assessing what is impossible. (Sanchez, at p. 1270, quoting Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502, italics omitted [“‘“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”’”].)
Thus, the determination of whether the impossibility exception applies involves a fact-specific inquiry and depends “on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of reasonable diligence in overcoming those obstacles. [Citation.]” (Howard, supra, 10 Cal.4th at p. 438.)
That Wilmshurst is representing himself does not except him from these standards. Lack of legal counsel does not entitle a petitioner to special treatment (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290); a pro se litigant is held to the same restrictive rules of procedure as an attorney (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639). “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
II. The Trial Court Did Not Abuse its Discretion in Declining to Toll the Entire Five-Year Period Within Which the Action Should Have Been Brought to Trial
Wilmshurst did not dispute that he took no action on this action for more than five years. On this undisputed fact, the mandatory dismissal provisions of section 583.360 were properly applied, unless otherwise tolled.
On appeal, as he did in the trial court, Wilmshurst argues the entire five-year statutory period should be tolled: “It was impossible to bring this matter to trial before November 15, 2008, because [he] was not aware of the proceeding until the action was brought to his attention by Central Valley Regional Water Quality Control Board” when it filed the motion to dismiss.
In our view, the trial court did not abuse its discretion in rejecting this argument because Wilmshurst did not bear his burden of showing that a condition of impossibility existed, that it caused his failure to move the matter to trial, or that he was reasonably diligent in advancing the matter to trial. (See De Santiago, supra, 155 Cal.App.4th at p. 372; Tamburina, supra, 147 Cal.App.4th at pp. 328-329, 333, 336.)
First, the trial court did not abuse its discretion in making an implied finding that Wilmshurst failed to show that a condition of impossibility existed. The only evidence on this point was his conclusory declaration that he suffered one severe stroke in 1997 (four years before he filed this action) and another in May of 2008 (nearly five years after the case was reinstated by the trial court). In the interim, Wilmshurst avers, he suffered “several mini-strokes” which “may wipe out my memory for a period of time.” (Italics added.) He does not say how many of these strokes he suffered, or when he suffered them. They may all have occurred prior to 2001, when he filed this action, or they may all have occurred before September 2003, when the trial court reinstated it following remittitur; in either case, they would have had no effect on his advancing this matter to trial. Nor does Wilmshurst say whether any of these “mini-strokes” in fact “wiped out” his memory and, if so, for what period of time.
Nor does Wilmshurst establish a causal connection between the “mini-strokes” he contends plagued him between 1997 and May 28, 2008, and his failure to move the case forward. (De Santiago, supra, 155 Cal.App.4th at p. 372.) Respondent helpfully pointed out in the trial court that these “mini” events did not prevent him from prosecuting other litigation in federal court during every one of the ensuing years; the files of this court are also replete with Wilmshurst’s litigation efforts taken between 2003 and 2008, inclusive.
We take judicial notice of this court’s records including, for example, documents on file in cases that gave rise to the following opinions filed in this court: People v. Wilmshurst (2007) 146 Cal.App.4th 621 (C050103); Dept. of Transportation v. The 49er Lease (Feb. 19, 2010, C060344) [nonpub. opn.]; Forty-Niner Sierra Resources, Inc. v. Motor Vehicle Bd. (Apr. 28, 2008, C053641) [nonpub. opn.]; Jenkins v. Malmin (Apr. 13, 2006, C047051) [nonpub. opn.]; and Wilmshurst v. Lane (May 25, 2005, C044745) [nonpub. opn.].
Finally, even assuming he has shown a period of impossibility following his second “severe” stroke on May 28, 2008, he utterly failed to make any showing that he “exercise[d] reasonable diligence at all stages of the proceedings.” (Tamburina, supra, 147 Cal.App.4th at p. 334; see Sanchez, supra, 109 Cal.App.4th at p. 1270.) After the remittitur issued and the trial court issued the order that effectively reinstated his petition, Wilmshurst never even served a copy of that order on respondents, the predicate act required to start the case moving forward.
Wilmshurst’s assertion he was continuously “unaware” of this action for more than five years is belied by his own declaration admitting that he was reminded of it during a “settlement conference with the Toxic Waste people in Sacramento.” Having been reminded of this action, Wilmshurst should have checked on its status. The exercise of reasonable diligence includes a duty “to monitor the case in the trial court to ascertain whether any filing, scheduling or calendaring errors have occurred.” (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1287; see 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 379, pp. 781–782.) With the least exercise of diligence in monitoring this matter, Wilmshurst could have discovered that the five-year clock was running before it expired. Instead, Wilmshurst did absolutely nothing in this matter for more than five years. He cannot show diligence.
Under these circumstances, we find the trial court did not abuse its discretion in impliedly finding that Wilmshurst failed to establish a circumstance of impossibility necessary to toll the five-year period.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.