Discover Bank vs. Rosalba Navarro

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: *** The Court finds in its file no proof of service demonstrating moving defendant’s service of the Notice of Disclosure issued on 4/2/2025, despite being directed to serve all other parties with the Notice of Disclosure “forthwith.” Moving defendant is directed to serve the Notice of Disclosure on all other parties forthwith and to file proof of service within five (5) court days. ***

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and

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the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing in person, by Zoom or by telephone.

Moving counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

Defendant Navarro’s motion to dismiss plaintiff’s complaint “pursuant to California Code of Civil Procedure §§583.320 through 583.250 [sic]” is ruled upon as follows.

Factual Background

This is a collection action which was commenced by plaintiff on 3/17/2020. It does not appear that this action has ever been set for trial.

Moving Papers. According to defendant, this action must be dismissed because plaintiff failed to bring it to trial within five (5) years of filing the complaint on 3/17/2020. Defendant further asserts that the Court should exercise its discretionary authority to dismiss this action due to plaintiff’s failure to bring it to trial within three (3) years of its commencement.

Opposition. The Court finds that plaintiff did not file any opposition to the present motion.

Discussion

Mandatory Dismissal. As noted above, defendant first contends the five-year period to bring this action to trial ended on 3/17/2025 and thus, this action must be dismissed. For the reasons set forth below, the motion to dismiss based on plaintiff’s failure to bring this matter to trial within five years shall be denied at this time.

Code of Civil Procedure §583.310 provides in its entirety:

“An action shall be brought to trial within five years after the action is commenced against the defendant.”

Based on this plain language, plaintiff was initially required to bring this action to trial on or before 3/17/2025 but defendant has overlooked the application of the Judicial Council’s Emergency Rule 10, which automatically extended the five-year limitations period to commence trial by an additional six months. Thus, solely by applying Emergency Rule 10, plaintiff would still have at least until 9/17/2025 to bring this matter to trial. But as indicated below, additional time should be excluded thereby extending the time to bring the matter to trial.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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Additionally, Code of Civil Procedure §583.340 provides in its entirety:

In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) The jurisdiction of the court to try the action was suspended. (b) Prosecution or trial of the action was stayed or enjoined. (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.

An exclusion of time pursuant to §583.340(c) is not automatically available to all cases but rather, “[d]etermining whether the subdivision (c) exception applies requires a factsensitive 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.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.) Moreover, 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 court’s discretion.” (Sanchez v.

City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271.) “What is impossible, impracticable or futile must be determined in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves.” (Moran v. Superior Court (1983) 35 Cal.3d 229, 238.) “‘[I]mpracticability and futility’ involve a determination of ‘ “excessive and unreasonable difficulty or expense,” ’ in light of all the circumstances of the particular case.” (Bruns v.

E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731 [quoting Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 554].)

Defendant’s contention in the case at bar that this action must now be dismissed on account of plaintiff’s failure to commence trial on or before 3/17/2025 also fails to account for the fact that due to the COVID-19 pandemic, the Sacramento Superior Court suspended all civil trials from 3/17/2020 through 1/4/2021, amounting to an additional 109 days beyond the six-month period encompassed in Emergency Rule 10. Because of the Sacramento Superior Court’s suspension of all civil trials though 1/4/2021, this Court has consistently found and likewise finds here that it was “impossible” for plaintiff to have brought the present action to trial during these 109 days and thus, these 109 days must according to §583.340 be “excluded” from the computation of the deadline within which plaintiff was to bring this action to trial.

This, in effect, provides plaintiff with an additional 109 days above and beyond the five-yearplus-six-months’ deadline referenced above (i.e., 9/17/2025) and consequently, plaintiff still has until at least the end of December 2025 to commence trial without running afoul of §583.310. Although not cited by defendant, the First District Court of Appeal in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240 found no abuse of discretion in the Sonoma County Superior Court’s determination that its courtroom closure and continuance related to COVID-19 did not qualify under Code of Civil Procedure §583.340(c) because the plaintiffs were not ready for trial during the relevant period. Nonetheless, Oswald does not impact the Sacramento Superior Court’s discretion in determining the significance of its own emergency orders and directives during its suspension of all civil jury trials for purposes of §583.340(c).

For these reasons, dismissal based upon the mandatory provisions of Code of Civil Procedure §583.310 shall be denied.

Discretionary Dismissal. Defendant also seeks dismissal of this action based on the discretionary provisions of Code of Civil Procedure §583.420, which provides in pertinent part:

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: (1) Service is not made within two years after the action is commenced against the defendant. (2) The action is not brought to trial within the following times: (A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B). (B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

CRC Rule 3.1342(e) states that in ruling on a motion to dismiss pursuant to Code of Civil Procedure §§583.410-583.430, the trial court “must consider all matters relevant to a proper determination of the motion, including:

(1) The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; (2) The diligence in seeking to effect service of process; (3) The extent to which the parties engaged in any settlement negotiations or discussions; (4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; (5) The nature and complexity of the case; (6) The law applicable to the case, including the pendency of other litigation under a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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common set of facts or determinative of the legal or factual issues in the case; (7) The nature of any extensions of time or other delay attributable to either party; (8) The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial; (9) Whether the interests of justice are best served by dismissal or trial of the case; and (10) Any other fact or circumstance relevant to a fair determination of the issue.”

For unknown reasons, the moving papers not only fail to cite any of these factors which “must” be considered by the Court before dismissing any action pursuant to the discretionary provisions of Code of Civil Procedure §583.420 but also fail to include any meaningful discussion of even one of these factors. Consequently, this Court is on the present record not persuaded that the “interests of justice” will under the circumstances here be “best served” by dismissing this action at this time. This is particularly true since this appears to be a straightforward collection action arising from defendant’s use of a credit card and her subsequent failure to pay the amounts due pursuant to the applicable terms and conditions.

Accordingly, this Court declines at this time to exercise its discretion under Code of Civil Procedure §583.420(a)(2)(A) and CRC Rule 3.1342 in favor of dismissing this action.

Disposition

For the reasons explained above, defendant’s motion to dismiss is DENIED in its entirety.

This ruling is without prejudice to defendant’s right to bring another motion to dismiss at a later and appropriate time.

Defendant to provide notice of this ruling and file proof of service of same within five (5) court days.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)