Coe v. City of Los Angeles

[90]

Opinion

HASTINGS, J.

Appellants seek reversal of an order dismissing their complaint based upon violation of the five-year statute within which a matter must be brought to trial. (Code Civ. Proc., § 583.310.)

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They also contend that the trial court abused its discretion in failing to grant two ex parte applications to reset trial prior to the running of the five-year statute. Commendably, respondent concedes that the trial court abused its discretion in failing to credit appellants with trailing time when no courtroom was available and, therefore, dismissal of the matter pursuant to the five-year statute was premature. We agree with both parties and reverse.

Facts

On December 2, 1985, appellants were injured in an automobile accident. On October 16, 1986, they filed suit naming respondent City of Los Angeles as a defendant, claiming that defective maintenance of city streets caused the accident. On November 13, 1986, respondents answered the complaint and an at-issue memorandum was filed on November 18, 1986. The matter was ordered to arbitration which was held on February 11, 1988, resulting in an award in favor of the plaintiffs on February 12, 1988.

On March 1, 1988, respondent filed a demand for a trial de novo. On June 8, 1988, the parties attended a mandatory settlement conference, the matter was not settled, and a trial date of June 26, 1989, was assigned. On June 26, the parties stipulated to a continuance to February 26, 1990. Appellants advise us in their opening brief that this was due to the fact appellant Rita Coe suffered a heart attack. This is not disputed by respondent.

On February 23, 1990, the parties attended a crash settlement conference ordered by the court. The matter did not settle and trial was continued to October 15, 1990, on the court’s own motion, due to a congested calendar. On October 15 the parties stipulated to continue the matter to May 6, 1991. On May 6, 1991, the matter again had to be continued, this time to August 15,1991, because the trial judge became ill. On August 15, 1991, the parties stipulated to continue the matter to February 10, 1992, and the five-year statute was waived, in writing, to April 16, 1992.