Wale v. Rodriguez

California Court of Appeal Nov 28, 1988 No. B030710Published

Before: Roth

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Holding. The court held that an action must be dismissed if not brought to trial within five years, and a plaintiff's failure to inform the court of an impending deadline or to move to specially set a trial date precludes a claim of impossibility or impracticability.

Issues

Whether the trial court properly dismissed an action for failure to bring the case to trial within five years pursuant to Code of Civil Procedure section 583.310.
Whether a plaintiff's failure to inform the court of an impending five-year deadline excuses compliance with the statute.
Whether a defendant's failure to attend a trial setting conference constitutes a waiver of the five-year statute.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If the action is not brought to trial within five years, the court has a mandatory duty to dismiss the action.”

“The plaintiff has a duty to call the chronology of his case to the court’s attention.”

“Negligently keeping the date a secret from the court cannot excuse compliance.”

Opinion

ROTH, P. J.

David Wale appeals from the dismissal of his action for failure to bring the case to trial within five years. We affirm.

Appellant filed his complaint against respondents alleging false arrest, malicious prosecution, false imprisonment and negligence on June 10, 1982. Respondents answered in July 1982. Appellant filed his at-issue memoran

[131]

dum on August 2, 1982. Discovery ensued. On July 10, 1986, a trial setting conference was held. The court set the trial for October 15, 1986. Appellant was prepared to go to trial on that date.

On August 8, 1986, respondents moved to change venue from the Central District to the North Central District, on the grounds that the alleged injuries and damages occurred within the North Central District, and that the transfer would promote justice in that it would be more convenient for the witnesses. The trial court granted the motion on August 29, 1986, vacating the October 15 trial date.

On October 31, 1986, the court in the North Central District scheduled a trial setting conference for March 19, 1987. The mandatory settlement conference was scheduled for June 24, 1987. At the trial setting conference the court set the trial for August 17, 1987. Appellant requested a trial date in May, but the clerk stated that no earlier date was available. Appellant did nothing further to obtain an earlier trial date.

At the June 24, 1987, mandatory settlement conference the court suspended the proceedings on the ground that the five-year statute had run on June 10, 1987, leaving the court bereft of jurisdiction.

Respondents moved to dismiss on July 30, 1987. The motion was heard on September 11, 1987, at which time the following was said:

Mr. Botney [Appellant’s counsel]: “We got a trial date that was obviously beyond the five-year statutory period. I pointed out to the clerk, I did not say to the clerk, Your Honor, I have to be candid about it, that the five-year statue [y/c] had passed. I did say that I set it forth in my declaration, Your Honor, that this is an old case and that I would like to have the earliest possible date.

Wale v. Rodriguez

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ROTH, P. J.

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