Chin v. Meier

Opinion

YEGAN, J. —We hold that Code of Civil Procedure section 583.340, subdivision (c) tolling includes the aggregate time a case is continued because of courtroom unavailability regardless of whether a reasonable time remains [1475]to bring the action to trial before the expiration of the five-year limitation period.1

Dawn M. Chin appeals from an order dismissing her civil action for failure to bring the case to trial within five years. (§§ 583.310, 583.340, 583.360. ) The trial court ruled that a series of continuances based upon courtroom unavailability did not extend or toll the five-year period for compulsory trial. (§ 583.340, subd. (c).) We reverse with directions.

On May 18, 1984, appellant filed a civil action for injunctive relief and damages claiming that respondents harmed her real property by improperly terracing their adjoining property. After many trial continuances and a coordination proceeding, respondents sought a mandatory dismissal based on appellant’s failure to bring the case to trial within five years. (§§ 583.310, 583.360. ) On March 30, 1990, the court granted the motion to dismiss.

The tolling periods are as follows:

Period 1 - December 15, 1986, trial continued on the court’s motion to March 23, 1987. (98 days.)

Period 2 - March 21, 1988, trial continued to August 29, 1988, pending resolution of a petition to coordinate the case with a parallel Los Angeles action.The case was assigned to a coordination judge for 126 days. May 15, 1989, set as the new trial date.

Period 3 - May 15, 1989, trial continued on the court’s motion to September 5, 1989. (113 days.)

Period 4 - September 5, 1989, trial continued on the court’s motion to October 16, 1989. (41 days.)

Period 5 - October 16, 1989, case trailed on the court’s motion in master calendar to October 30, 1989. (14 days.)

Period 6 - October 30, 1989, trial continued to December 4, 1990, based on respondents’ express waiver of the five-year rule. (35 days.)

On December 4, 1989, the case trailed in master calendar until December 7, 1989, when the court advised the parties that a courtroom was available. Appellant’s motion to continue trial to April 2, 1990, to retain new counsel