Him v. Superior Court

California Court of Appeal Aug 6, 1986 No. B021781Published

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Holding. The court held that an attorney's serious illness can constitute an 'impracticable' circumstance justifying the tolling of the five-year statute for bringing a case to trial, and that the trial court correctly applied the reasonable diligence standard. Furthermore, the court clarified that under Code of Civil Procedure section 583.350, the petitioner was entitled to a six-month extension from the end of the tolling period to bring the action to trial.

Issues

Whether an attorney's serious illness can justify tolling the five-year statute for bringing a case to trial under the impracticability exception.
Whether the trial court abused its discretion in finding the petitioner exercised reasonable diligence.
Whether the trial court erred in its calculation of the time remaining to bring the action to trial under section 583.350.

Disposition. remanded

Quotations verified verbatim against the opinion

“real party has failed to meet the burden of showing that the respondent abused its discretion in determining the five-year statute was tolled for counsel’s illness.”

Opinion

THE COURT.

In this writ proceeding petitioner challenges the respondent’s denial of his motion to specially set the case for trial (Cal. Rules of Court, rule 375(b)) to avoid the running of the five-year period specified in section 583.310 of the Code of Civil Procedure.

For reasons to follow, we have concluded petitioner is entitled to relief.

[37]

Procedural Background

On April 7, 1981, petitioner filed his complaint seeking damages against real party for personal injuries sustained in an automobile collision. Absent circumstances which would toll the statute, the mandatory period within which to bring the matter to trial would therefore have expired on April 7, 1986.

An answer was filed in April 1982. Petitioner’s at-issue memorandum was filed in November 1982. In October 1984 petitioner served interrogatories. Real party requested and obtained an open extension of time to respond. Answers to the interrogatories have not been served. Settlement negotiations took place during 1985.

On February 18, 1986, petitioner’s counsel was hospitalized after suffering severe chest pains. His condition was diagnosed as crescendo angina, the forerunner of a heart seizure. A surgical procedure (angioplasty) was promptly performed, and following a brief hospital stay counsel was discharged to convalesce at home. By late March he was able to work in his office two hours per day, and by May he was spending approximately four hours per day at the office.

In late April petitioner’s counsel realized the five-year period had expired and immediately telephoned the office of real party’s attorney (Burman), confident of obtaining a written stipulation to extend time in view of the theretofore “extremely cooperative” relationship between counsel. To his dismay however, petitioner’s counsel was told Burman was no longer with the firm representing real party and there would be no agreement to waive the five-year statute.

On May 8, 1986, real party moved to dismiss for failure to bring the action to trial within five years from its commencement. Petitioner argued against dismissal on grounds the previous concord between counsel lulled his attorney into a false sense of security, supporting an implied finding that it was impracticable to get the case to trial within the five-year period. (§ 583.340, subd. (c).)

Him v. Superior Court

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THE COURT.

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