Singelyn v. Superior Court

California Court of Appeal Oct 21, 1976 No. Civ. 48875Published

Before: Hastings

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Holding. The court held that the five-year statute of limitations for bringing an action to trial is mandatory and that a plaintiff's illness or a court's inadvertent scheduling of a trial date beyond that period does not toll the statute.

Issues

Whether a plaintiff's illness constitutes impossibility or impracticability sufficient to toll the five-year statute of limitations under Code of Civil Procedure section 583, subdivision (b).
Whether a court's inadvertent selection of a trial date beyond the five-year period tolls the statute.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“It is the plaintiff’s duty to keep track of the pertinent dates which are crucial to maintenance of his lawsuit, and to see that the action is brought to trial within the five-year period.”

“No case, to our knowledge, has ever held that inadvertence on the part of the court in selecting a trial date constitutes the type of impracticability, impossibility or futility which tolls the five-year statute.”

[974]

Opinion

HASTINGS, J.

Petitioners are defendants in a pending medical malpractice action filed by real party in interest in respondent court on June 7, 1971. Trial in said action was originally set for October 1, 1975. In September 1975, counsel for real party received word from real party’s wife that real party was hospitalized with cancer in Florida where he then resided and would be unavailable for the scheduled trial. Counsel for real party thereupon requested and obtained a continuance and trial was reset for Januaiy 22, 1976. In December 1975 counsel for real party requested a further continuance. The trial date was vacated and a trial setting conference was scheduled for February 4, 1976, at which time respondent court, without objection by either side, assigned a trial date of June 8, 1976. On the latter date, petitioners moved for dismissal for failure to prosecute pursuant to section 583, subdivision (b) of the Code of Civil Procedure. Respondent denied petitioners’ motion and the within petition followed. We granted an alternative writ and set the matter for hearing.

Petitioners assert that the five-year statutory period for bringing the action to trial expired June 7, 1976; that they did nothing to waive their right to assert the statute; that the operation of the statute was not tolled; and that respondent therefore had a mandatory duty to grant their motion under section 583, subdivision (b) of the Code of Civil Procedure.

Real party concedes that petitioners neither stipulated to an extension of the five-year period nor waived their rights under the statute, except for their having participated in the trial setting conference. Petitioners’ presence at the trial setting conference did not constitute a barrier to their seeking dismissal under section 583, subdivision (b).

(Wright

Groom Trucking Co.,

206 Cal.App.2d 485, 493-494 [24 Cal.Rptr. 80].)

Real party asserts that his illness rendered it impossible or impracticable for him to bring the matter to trial within the five-year period. We know of no case in which the illness of a plaintiff has been held to toll the statute, or in which it has even been a factor considered in

Singelyn v. Superior Court

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HASTINGS, J.

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