Johnson v. The Cricket Co. CA1/2

Filed 6/30/16 Johnson v. The Cricket Co. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

TRACEY JOHNSON, Plaintiff and Appellant, A144580 v. THE CRICKET COMPANY, LLC, (Humboldt County Super. Ct. No. DR080375) Defendant and Respondent.

This is the second appeal in this matter. We opened our opinion on the first appeal with this description of the underlying action: “Plaintiff Tracey Johnson, the owner of a hair salon, was cutting a customer’s hair using a pair of scissors manufactured by defendant The Cricket Company (Cricket) when she suffered injuries allegedly caused by the defective design and manufacture of the scissors, and the deceptive manner in which it was sold. She filed a complaint for damages in which she alleged seven causes of action, three for differing theories of product liability, and four for various alleged misrepresentations. The entire complaint for damages fell before Cricket’s summary judgment motion.” (Johnson v. The Cricket Company, LLC (Nov. 15, 2010, A126963) [nonpub. opn.].) This court reversed in part, restoring plaintiff’s three products liability causes of action. This time, Johnson appeals from the judgment dismissing her complaint for failure to bring her case to trial within three years. With one exception, the salient circumstances are without dispute. Before stating those circumstances, it is appropriate to establish the legal framework.

1

“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.3101.) The parties may extend the time within which an action must be brought to trial by either an “oral agreement made in open court” or by a “written stipulation.” (§ 583.330.) In computing the five years, “there shall be excluded the time” when the trial court’s “jurisdiction . . . to try the action was suspended,” or when the action was “stayed or enjoined,” or the time during which “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (§ 583.340.) There is also a provision for mandatory dismissal that has a more limited scope: “If a new trial is granted in the action the action shall again be brought to trial within the following times: [¶] . . . [¶] If on appeal . . . a judgment is reversed and the action remanded . . . , within three years after the remittitur is filed by the clerk of the trial court.” (§ 583.320, subd. (a)(3).)2 “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360, subd. (b).) Cricket based its motion on both the five-year and the three-year mandatory provisions. Johnson commenced this action with a complaint filed on April 28, 2008. With trial set for November 2009, the trial court granted Cricket’s motion for summary judgment. On October 29, 2009, Johnson filed a notice of appeal from the summary judgment. This court reversed in part, restoring Johnson’s three products liability causes of action. Our remittitur was filed in the trial court on January 20, 2011. Therefore, under the three-year statute, the case had to be brought to trial by January 20, 2014.