Seto v. Szeto ( 2022 )

Filed 12/12/22 (see concurring opinions)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JEAN SETO et al.,
Plaintiffs and Appellants,
v. A163846, A164849,
KWOK HUNG SZETO et al., A164925
Defendants and
Respondents. (San Francisco City &
County Super. Ct. No.
CGC 15548180)
These consolidated appeals concern the trial court’s
dismissal of a shareholder derivative complaint for failure to
bring the action to trial within five years (Code Civ. Proc.,
§§ 583.310, 583.360) and two subsequent awards of attorney’s
fees. 1 Plaintiffs argue the trial court erred by dismissing their
complaint because its calculation of the five-year deadline
improperly failed to exclude a period of approximately six months
between when the parties signed a settlement agreement and
when defendants abandoned it.
Determination of the five-year deadline in this case
requires us to analyze the distinction between contract formation
and conditions precedent to contract performance. As explained
Undesignated statutory references are to the Code of Civil
1
Procedure.
1
below, we agree with plaintiffs that the court miscalculated the
five-year period under sections 583.310 and 583.340 because it
erroneously viewed the failure to satisfy a condition precedent to
performance as a bar to valid contract formation. We shall
therefore reverse the dismissal order and the subsequent fee
awards.
BACKGROUND
On September 28, 2015, Jean W. Seto, in her capacity as
the trustee of a trust, filed a shareholder derivative complaint on
behalf of ARP-I, LLC and ARP-II, LLC against Kwok Hung Szeto.
About eight months into the case, Seto, together with HM Wong
Group, Tina Wong Chin, Alexander Hans Wong, and Eric Kim
Wong (collectively, plaintiffs) filed a first amended complaint that
added Nikki So-Kuen Szeto and Patrick Szeto as defendants and
named the LLCs as nominal defendants. About three years and
eight months into the case, plaintiffs filed a fourth amended
complaint, which added as defendants Charles M. Thompson and
Thompson Welch Soroko & Gilbert, LLP (attorney defendants),
who were alleged to have provided legal advice to the nominal
defendants.
While this litigation was proceeding, the trial court stayed
the proceedings for various reasons for a total of 127 days. In
January 2020, about four years and four months into the case,
the attorney defendants moved to dismiss the action for failure to
serve them within three years of the filing of the original
complaint.
2
Later that same month, the parties participated in a
mediation. At the end of the mediation, the parties drafted a
document titled, “Settlement Agreement Following Mediation.”
The settlement stated, “By execution of this Settlement
Agreement the Parties confirm that it is their intention that this
Agreement shall be valid, binding, and enforceable in connection
with the resolution of their dispute.” Representatives of all of the
parties except the attorney defendants signed the agreement,
although the representative of the nominal defendants signed it
three days after the end of the mediation. 2 In the agreement, the
signatories represented and warranted that they were duly
authorized to execute it and to bind the parties they represented
to its terms.
The settlement terms were that the nominal defendants
would purchase the plaintiffs’ membership interests in the
nominal defendants as well as two non-party partnerships for a
specified price. In exchange, plaintiffs promised that, within two
business days, they would file with the trial court a notice of
settlement and a dismissal of the attorney defendants without
prejudice. They also promised to move for dismissal of the rest of
the defendants with prejudice within 30 days of execution of the
agreement. However, the agreement provided that “[p]ayment
2 Although the attorney defendants were listed as parties to
the agreement and plaintiffs agreed as part of the settlement to
dismiss them without prejudice, there was no signature line for
them. This was apparently because the agreement did not
obligate the attorney defendants to perform any actions in
exchange for their dismissal.
3
and this settlement shall be conditioned upon approval of (a) the
Superior Court because it is a derivative action,
(b) Medicare/Medical/child support because there are claims of
financial elder abuse, (c) USLI confirms that there are no liens,
(d) the unanimous consent of the members of ARP-I and ARP-II
respective[ly], (e) the unanimous consent of the limited partners
and the general partner of WAA-I and WAA-II; and any
reasonable execution of documents required by the insurance
carrier USLI, and (f) and subject to the right of first refusal as
may be required by non-parties CSC and Alexander Hans Wong
Associates.” 3 (Sic.) The agreement also stated that if any
disagreement arose regarding the agreement, then the mediator
would have binding authority to determine the issue and all
parties would be bound by the mediator’s decision, without the
ability to appeal to any judicial or arbitral authority.
Pursuant to the agreement and with defendants’
cooperation, on January 27, 2020, plaintiffs filed a notice of
conditional settlement with the trial court that stated a request
for dismissal would be filed by March 6, 2020. The trial court
took off calendar a discovery motion and the attorney defendants’
motion to dismiss, and it removed the action from the master jury
calendar. Defendants hired a law firm to draft agreements to
effectuate the nominal defendants’ purchase of plaintiffs’
membership interests.
3The parties do not explain the roles of CSC and insurer
USLI in the litigation. WAA-I and WAA-II are non-party
partnerships in which plaintiffs held interests.
4
Nominal defendants’ members did not unanimously
consent to purchase plaintiffs’ membership interests. By
February 15, 2020, some of the members had filled out forms
indicating that they did not consent, although there is no
indication that nominal defendants told plaintiffs of this at the
time. Counsel for nominal defendants apparently believed it was
still possible to achieve unanimity, so he told plaintiffs’ counsel in
early March 2020 that he would be able to sign a declaration
stating that the members had approved the settlement. Not until
April 9, 2020, did counsel for the nominal defendants inform
plaintiffs that he had not achieved unanimous consent. Even
then, however, he stated that the nominal defendants wanted to
wait for 90 to 120 days to monitor the development of the COVID-
19 pandemic emergency, which had begun in March 2020. In
response, plaintiffs threatened to file a motion in court to enforce
the settlement under section 664.6.
Meanwhile, in May 2020, the trial court issued an order to
show cause why the case should not be dismissed in light of the
prior notice of settlement and set a hearing for June 30, 2020. In
June 2020, plaintiffs realized the settlement agreement gave the
mediator authority to resolve disputes related to enforcement of
the agreement. Plaintiffs therefore contacted the mediator to ask
him to resolve the dispute. At the same time, plaintiffs filed a
new notice of conditional settlement stating that the case would
be dismissed by July 16, 2020. In response, the trial court
rescheduled the hearing on the order to show cause for August
25, 2020.
5
On July 31, 2020, about four years and ten months into the
case, the mediator ruled, consistent with both sides’ arguments,
that he had binding authority under the settlement agreement to
resolve the dispute. He further ruled that the agreement was not
enforceable against the nominal defendants. The mediator
reasoned that the signature of nominal defendants’
representative on the agreement did not mean that the condition
precedent had been met. The mediator also found that none of
the communications between the parties’ counsel was sufficient
to bind the parties to performance of the settlement agreement.
Over the course of the next few months, plaintiffs asked
counsel for defendants and nominal defendants for trial dates,
with little response. On August 5, 2020, on its own motion, the
trial court continued the hearing on the order to show cause until
October 27, 2020.
On August 27, 2020, the attorney defendants re-filed their
motion to dismiss, in which they notified the court that the
settlement had stalled. The trial court granted this motion on
October 8, 2020. Over the course of the following eight months,
the trial court repeatedly set and continued hearings on the order
to show cause regarding dismissal of the case, with the final
hearing scheduled for August 2021. Plaintiffs twice filed notices
of appearance asking to be heard about the need for trial, to no
effect. Finally, in late June 2021, about five years and nine
months after they filed the complaint, plaintiffs filed a motion to
vacate the conditional settlement and reset a case management
conference. In late July 2021, the trial court granted the motion
6
and set a case management conference for October 6, 2021, which
would have been a little over six years after the start of the case.
In September 2021, defendants filed a motion for
mandatory dismissal of the action for failure to bring it to trial
within five years under sections 583.310 and 583.360.
Defendants argued that after taking into account the periods
during which the action was stayed and emergency orders that
had extended the five-year period due to the pandemic, the five-
year period expired on August 2, 2021, about five years and ten
months after plaintiffs filed the complaint. Plaintiffs countered
that the five-year period had to be extended by an additional 196
days, which was the length of the period between January 17,
2020, when most parties signed the settlement agreement, and
July 31, 2020, when the mediator issued his ruling that the
settlement could not be enforced. Plaintiffs also suggested that
at a minimum the five-year deadline should be extended by the
period from January 17 to April 9, 2020, which was when
nominal defendants’ counsel first notified plaintiffs that the
condition to the settlement was not met.
The trial court granted defendants’ motion, ruling that the
deadline to bring the case to trial expired on August 2, 2021. The
trial court later awarded defendants and nominal defendants
attorney’s fees as the prevailing parties based on a fee provision
in nominal defendants’ operating agreements.
7
DISCUSSION
I. Statutory Scheme and Standard of Review
Section 583.310 states, “An action shall be brought to trial
within five years after the action is commenced against the
defendant.” “An action shall be dismissed by the court on its own
motion or on motion of the defendant, after notice to the parties,
if the action is not brought to trial within the time
prescribed . . . .” (§ 583.360, subd. (a).) This dismissal
requirement is mandatory and “not subject to extension, excuse,
or exception except as expressly provided by statute.” (Id.,
subd. (b).) “Under the press of this statutory requirement,
anyone pursuing an ‘action’ in the California courts has an
affirmative obligation to do what is necessary to move the action
forward to trial in timely fashion.” (Tanguilig v. Neiman Marcus
Group, Inc. (2018) 22 Cal.App.5th 313, 322 (Tanguilig).)
Section 583.340 states, “In computing the time within
which an action must be brought to trial pursuant to this article,
there shall be excluded the time during which any of the
following conditions existed: [¶] (a) The jurisdiction of the court to
try the action was suspended. [¶] (b) Prosecution or trial of the
action was stayed or enjoined. [¶] (c) Bringing the action to trial,
for any other reason, was impossible, impracticable, or futile.”
“Because the purpose of the dismissal statute ‘is to prevent
avoidable delay, . . . [section 583.340, subdivision (c)
(§ 583.340(c))] makes allowance for circumstances beyond the
plaintiff’s control, in which moving the case to trial is
impracticable for all practical purposes.’ ” (Tanguilig, supra,
8
22 Cal.App.5th at p. 323.) Section 583.130 instructs that “the
policy favoring trial or other disposition of an action on the merits
[is] generally to be preferred over the policy that requires
dismissal for failure to proceed with reasonable diligence in the
prosecution of an action in construing the provisions of this
chapter.” “Accordingly, the tolling provisions of Code of Civil
Procedure section 583.340 must be liberally construed consistent
with the policy favoring trial on the merits.” (Dowling v. Farmers
Ins. Exchange (2012) 208 Cal.App.4th 685, 693 (Dowling).)
The Law Revision Commission drafted section 583.340 to
revise a previous set of statutes that established a deadline to
bring a case to trial. (Gaines v. Fidelity National Title Ins. Co.
(2016) 62 Cal.4th 1081, 1090, 1100–1101 (Gaines).) The
Legislature enacted the Law Revision Commission’s draft
without change, so we give the Commission’s comments
significant weight when interpreting the statute. (Sierra Nevada
Memorial–Miners Hospital, Inc. v. Superior Court (1990)
217 Cal.App.3d 464, 469 (Sierra Nevada).)
The Law Revision Commission commented that under
cases interpreting the previous statutes, “the time during which
an action must be brought to trial may be tolled during periods
when it would have been impossible, impracticable, or futile to
bring the action to trial. However, if the impossibility,
impracticability, or futility ended sufficiently early in the
statutory period so that the plaintiff still had a ‘reasonable time’
to get the case to trial, the tolling rule doesn’t apply.” (Revised
Recommendation Relating to Dismissal for Lack of Prosecution
9
(June 1983) 17 Cal. Law Revision Com. Rep. (1984) pp. 918–919,
fn. omitted.) “Under Section 583.340 the time within which an
action must be brought to trial is tolled for the period of the
excuse, regardless whether a reasonable time remained at the
end of the period of the excuse to bring the action to trial. This
overrules cases such as State of California v. Superior Court,
98 Cal.App.3d 643 (1979), and Brown v. Superior Court,
62 Cal.App.3d 197 (1976).” (Id. at p. 936.) The Law Revision
Commission further explained that this approach was “consistent
with the treatment given other statutory excuses,” such as the
exception that excluded from the five-year period time during
which jurisdiction of the court is suspended, and “increase[d]
certainty and minimize[d] the need for a judicial hearing to
ascertain whether or not the statutory period has run.” (Id. at
p. 919, fn. omitted.) “Thus, a condition of impossibility,
impracticability, or futility need not take the plaintiff beyond the
five-year deadline to be excluded; it will be excluded even if the
plaintiff has a reasonable time remaining after the period to
bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.)
When applying the tolling exceptions in section 583.340(c),
a trial court “must consider ‘ “all the circumstances in the
individual case, including the acts and conduct of the parties and
the nature of the proceedings themselves. [Citations.] The
critical factor in applying these exceptions to a given factual
situation is whether the plaintiff exercised reasonable diligence
in prosecuting his or her case.” ’ ” (Gaines, supra, 62 Cal.4th at
p. 1100.) “ ‘The question of impossibility, impracticability, or
10
futility is best resolved by the trial court, which “is in the most
advantageous position to evaluate these diverse factual matters
in the first instance.” [Citation.] The plaintiff bears the burden
of proving that the circumstances warrant application of
the . . . exception. [Citation.] . . . The trial court has discretion to
determine whether that exception applies, and its decision will be
upheld unless the plaintiff has proved that the trial court abused
its discretion. [Citations.]’ [Citation.] Under that standard,
‘[t]he trial court’s findings of fact are reviewed for substantial
evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary
and capricious.’ ” (Ibid.)
Where, as here, the trial court’s ruling depends on its
interpretation of a contract, we independently review that
interpretation, but continue to apply the abuse of discretion
standard to the extent the trial court resolved any factual
questions involving extrinsic evidence. (Dowling, supra,
208 Cal.App.4th at p. 694; Brown & Bryant, Inc. v. Hartford
Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 252 (Brown
& Bryant) [“whether a settlement agreement executed during the
pendency of a lawsuit makes it impossible, impracticable, or
futile to proceed to trial” is “a legal question and not a factual
one,” so it is reviewed independently].)
II. Conditional Settlement
A line of cases holds that “the time during which a
settlement agreement is in effect tolls the five-year period, for the
reason that attempting to bring an action to trial when all issues
11
have been resolved through settlement would be futile” within
the meaning of section 583.340(c). (Canal Street, Ltd. v. Sorich
(2000) 77 Cal.App.4th 602, 608; see also Brown & Bryant, supra,
24 Cal.App.4th at pp. 254–255; Schiro v. Curci (1990)
220 Cal.App.3d 840, 844–845.) Most relevant here is Brown &
Bryant, supra, 24 Cal.App.4th at pages 249–250, which involved
a suit for recovery of environmental cleanup costs. There, the
parties signed a settlement agreement that conditioned the
parties’ obligations to perform on a government agency’s
execution, by a deadline, of a release of the plaintiff from further
cleanup liability. (Ibid.) The Court of Appeal held that that “a
timely and enforceable settlement agreement which finally
disposes of all issues in the underlying lawsuit renders section
583.310 et seq. ‘legally irrelevant’ ” because it is futile to try to
bring to trial issues that have been resolved by settlement, even
if the settlement later becomes null and void for failure of a
condition precedent to performance. (Id. at pp. 254–255.) The
court rejected the defendants’ argument that the failure of the
condition precedent to performance meant the agreement was
never consummated. (Id. at p. 255.) It found a binding
agreement existed between the signing of the agreement and the
expiration of the period for the agency to provide the necessary
release, since if the agency had provided the release, the parties
would have been obligated to perform. (Id. at pp. 255–256 [“An
executory contract is, nevertheless, a binding and enforceable
agreement”].)
12
The court reasoned that “[o]nce the parties reach an
enforceable agreement, ‘the court can assume the matter has
indeed been finally disposed. Details of execution may remain,
but it is reasonable to assume the matter will not go to trial.’ ”
(Brown & Bryant, supra, 24 Cal.App.4th at p. 256.) It
summarized, “The salient factor is not what ultimately did, or did
not, happen. Rather, it is whether during the period covered by
the agreement, [the plaintiff] would have been acting in bad faith
and in violation of the spirit of the agreement by proceeding with
the prosecution of the action.” (Ibid.) Brown & Bryant also
rejected the argument that the plaintiff failed to exercise
reasonable diligence by not obtaining a stipulation to toll the five-
year period during the life of the settlement agreement or by
failing to bring the action to trial in the two years that remained
of the five-year period after the failure of the condition precedent.
(Id. at pp. 256–257.) It held that the five-year period was tolled
while the settlement agreement was in effect, even if a
reasonable time remained afterwards to bring the case to trial.
(Id. at p. 257.)
The trial court distinguished Brown & Bryant on the basis
that the settlement agreement here was not binding and
enforceable because the agreement made the unanimous consent
of the nominal defendants’ members, as well as court approval, a
condition precedent to enforceability. The trial court based this
conclusion on nominal defendants’ counsel’s April 2020 notice
that no settlement agreement was in effect. The trial court also
noted that the mediator had binding authority to resolve
13
disagreements about the settlement and had ruled that the
agreement was not enforceable because the condition precedent
of unanimous approval of the nominal defendants’ members was
not satisfied.
Defendants’ arguments on appeal expand upon the trial
court’s reasoning regarding the agreement’s enforceability. Like
the defendants in Brown & Bryant, supra, 24 Cal.App.4th at
pages 255–256, who contended their agreement was never
consummated, defendants argue that unanimous consent was a
condition to their assent to the agreement, so that the failure of
the condition means no agreement was formed. (Santa Clara-
San Benito etc. Elec. Contractors’ Assn. v. Local Union No. 332
(1974) 40 Cal.App.3d 431, 436 [when “two parties execute a
contract with the understanding that the approval of a third
party is necessary for the agreement to take effect, the contract is
not complete until the third party has approved. Until that
happens neither party is bound by the agreement”].) They then
assert that nominal defendants’ operating agreements required
unanimous consent of their members to enter the settlement
agreement, and that the settlement agreement itself reflected
this condition.
Defendants compare this case to Earp v. W.G. Nobmann
(1981) 122 Cal.App.3d 270, 289 (Earp), disapproved of on other
grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, 219, which
held that a company officer’s signature on a contract, made under
the express condition that another company officer also approve
the contract, was a conditional acceptance and not immediately
14
effective. Plaintiffs, on the other hand, rely on Brown & Bryant
and cases like Jacobs v. Freeman (1980) 104 Cal.App.3d 177,
188–189 (Jacobs), which held that a company employee’s
signature on a contract that stated it was conditioned on
approval by the company’s board of directors embodied a
condition precedent to performance of the contract, not a
condition to the formation of the contract. Jacobs interpreted the
agreement as impliedly obligating the company’s employees to
act in good faith to submit the sale to the board for approval and
obligating the board to consider the sale. (Id. at p. 190.)
The principle of conditional performance as applied in
Jacobs and Brown & Bryant controls here, not the rule of
conditional assent applied in Earp. Nominal defendants’
representative signed the settlement agreement a few days after
the mediation, apparently after conferring with their insurer.
The signatories warranted in the agreement that they could bind
the parties they represented. There is no evidence in the record
to suggest that the representative signed under any express oral
condition that would have contradicted this warranty or
prevented formation of a contract. (Cf. Earp, supra,
122 Cal.App.3d at p. 289 [signature was given with express
condition].) To the contrary, the fact that nominal defendants’
representative signed a few days after the other parties
demonstrates that nominal defendants believed their
representative’s signature had some significance to the formation
of a contract. Had nominal defendants believed their
representative’s signature was ineffective to form a contract
15
because of the unanimity condition, either there would have been
no obstacle to signing the agreement immediately during the
mediation or there would have been no reason to sign it at all.
Defendants argue that nominal defendants’ operating
agreements required their members’ consent to enter into the
settlement agreement, implying that their representative lacked
the authority to bind the entities to the agreement. Defendants
do not direct us to anywhere in the record where the operating
agreements can be found. Instead, they point to the unanimous
approval condition in the contract. But the unanimous consent
provision is listed together with several other conditions, such as
approval of the court or various social services agencies, which
are construed most reasonably as conditions to performance.
This undercuts defendants’ argument. If their members’ consent
were a condition to the authority of nominal defendants’
representative to form the agreement, it is unlikely that condition
would have been lumped in with a number of conditions
precedent to performance.
Moreover, even if nominal defendants’ organizing
documents barred their representative from committing to buy
plaintiffs’ membership interests without the unanimous consent
of the entities’ members, defendants cite nothing to suggest he
could not sign the agreement to obligate the entities to act in
good faith and seek their members’ approval, like the agreement
in Jacobs. (Jacobs, supra, 104 Cal.App.3d at p. 190.) And as in
Brown & Bryant, supra, 24 Cal.App.4th at page 256, for a time
the agreement bound both sides to perform if the unanimous
16
approval condition were satisfied (such as the requirement that
plaintiffs file a notice of settlement within two business days of
execution of the agreement), which was enough to make it
impossible or futile to bring the action to trial during that time—
even if it later became clear that nominal defendants’ main
promise to purchase plaintiffs’ membership interests could not be
enforced.
The agreement’s plain statement on its first page that the
parties intended that the agreement to “be valid, binding, and
enforceable in connection with the resolution of their dispute”
buttresses our interpretation. Defendants attempt to dismiss
this statement as boilerplate that conflicts with and must fall to
the more specific conditions later in the agreement, but we are
unpersuaded. Both statements can be given effect by construing
the latter conditions as conditions precedent to performance,
rather than to formation of a contract.
To the extent there is an ambiguity in the settlement
agreement or its surrounding circumstances, defendants’
subsequent conduct before the five-year dismissal issue arose,
which affords the “ ‘most reliable’ ” means of determining their
intent, confirms that the settlement agreement constituted a
binding contract. (Jacobs v. Locatelli (2017) 8 Cal.App.5th 317,
326.) Defendants and plaintiffs cooperated in the filing of the
notice of conditional settlement, which was one of the actions the
settlement agreement obligated plaintiffs to perform.
Defendants’ participation in this process indicates that they
believed they were immediately entitled to the benefit of the
17
agreement and contradicts their argument here that the
formation of the agreement was conditioned on nominal
defendants’ later assent.
More significantly, defendants accepted the mediator’s
authority to rule on the enforceability of the settlement
agreement by arguing to the mediator, as did plaintiffs, that he
had binding authority to resolve whether the agreement required
nominal defendants to buy plaintiffs’ membership interests. But
that authority presupposed the parties’ formation of an
agreement, since the mediator’s authority to resolve the dispute
over the enforceability of the agreement arose from the
agreement itself. Defendants’ submission of the dispute to the
mediator demonstrates that they believed the settlement
agreement was a valid agreement to at least some extent, like the
agreement in Jacobs. (Jacobs, supra, 104 Cal.App.3d at pp. 188–
190.) For the same reason, the trial court’s ruling that the
mediator’s ruling was binding cannot be reconciled with its ruling
that the agreement was not enforceable.
Because defendants argued to the mediator that he had
authority under the settlement agreement to resolve the parties’
dispute and then prevailed before the mediator, principles of
judicial estoppel would prevent defendants from now arguing to
the contrary that no agreement was formed. (Cf.
DotConnectAfrica Trust v. Internet Corp. for Assigned Names &
Numbers (2021) 68 Cal.App.5th 1141, 1158–1159 [judicial
estoppel applies to arbitration proceedings]; Rapture Shipping,
Ltd. v. Allround Fuel Trading B.V. (S.D.N.Y. 2004)
18
350 F.Supp.2d 369, 374 [judicial estoppel prevented party who
convinced one court that a contract was formed from later
arguing to the contrary in a different court].)
Even if defendants could change their position, the
mediator’s ruling that he had such authority undermines such an
argument. The mediator expressly ruled that he had authority to
issue a ruling on the merits as to defendants but did not have
such authority over two partnerships who did not sign the
agreement. This shows that the arbitrator believed the parties
had formed at least a limited agreement, as in Jacobs, despite the
fact that the condition precedent to enforcing nominal
defendants’ purchase of plaintiffs’ membership interests later
failed. Although the mediator ruled that plaintiffs could not
enforce the agreement to require nominal defendants to purchase
their membership interests, the mediator’s mere issuance of such
a ruling, combined with the parties’ assent to it, demonstrates
that the parties were bound by the settlement agreement to that
extent.
Moreover, in their briefing in this court, defendants
maintain that the mediator had this authority and cite the
mediator’s ruling as authority for their position that the
agreement was not enforceable. Defendants’ continued reliance
on the mediator’s ruling further undercuts their position that the
parties did not form an agreement.
In any event, even if the settlement agreement were not
binding because nominal defendants’ acceptance was conditional,
we would still exclude the period during which it was in effect
19
under the rationale expressed in Brown & Bryant. As that case
noted, the “salient factor” for applying the tolling exceptions in
section 583.340(c) “is whether during the period covered by the
agreement, [a plaintiff] would have been acting in bad faith and
in violation of the spirit of the agreement by proceeding with the
prosecution of the action.” (Brown & Bryant, supra,
24 Cal.App.4th at p. 256.) Here, after the parties’ settlement
negotiations bore fruit in a signed agreement to put an end to the
case, plaintiffs would have been acting in bad faith and contrary
to the spirit of the signed agreement by actively litigating the
case until the unanimous approval condition was either satisfied
or had failed. 4 Contrary to defendants’ arguments here, it is
unlikely the trial court would have granted a request by plaintiffs
to set the action for trial, after all parties had signed the
agreement and while nominal defendants were still seeking their
members’ unanimous consent. This conclusion is supported by
the trial court’s act of taking several motions off calendar and
removing the case from the master jury calendar in response to
the notice of conditional settlement that plaintiffs filed pursuant
to the settlement agreement. The trial court evidently viewed a
4 Gaines, supra, 62 Cal.4th at pages 1102–1104, held that a
stay of a case to conduct mediation did not make it impossible or
impracticable to bring the case to trial because mediation is an
ordinary part of litigation, the plaintiff agreed to it, the plaintiff
could still conduct her own trial preparation, and the plaintiff
could have moved to lift the stay. There was no argument in
Gaines that a signed settlement agreement after the mediation
made it impossible or impracticable to bring the case to trial.
20
conditional settlement as a sufficient basis for suspending the
litigation.
Likewise, it was impracticable for plaintiffs to complete any
of the few litigation steps remaining, which were expert
depositions and the setting of the matter for trial, while it was
still possible that the settlement would be effectuated. Indeed,
defendants in all likelihood would have objected to any such
attempts, given that their conduct (e.g., cooperating in the filing
of the notice of settlement and hiring a law firm to draft the
purchase agreements) demonstrated their belief that the
agreement was binding. Moreover, settlement negotiations are
delicate, and any step that antagonized defendants and nominal
defendants or forced them to incur trial preparation costs in the
form of attorney time and expert fees could well have jeopardized
completion of the settlement, even if nominal defendants’
members were otherwise inclined to purchase plaintiffs’
membership interests. This is especially likely here, where the
settlement agreement required plaintiffs to quickly file a notice of
settlement with the trial court, thus indicating that defendants
did not want to continue to litigate the case while they sought the
unanimous consent of nominal defendants’ members to the
purchase of plaintiffs’ membership interests.
To be sure, it would have been preferable for plaintiffs to
include a provision in the settlement agreement tolling the five-
year deadline, to make clear that the attempt to achieve
unanimous consent would not count toward the five-year period
for bringing a case to trial. But a ruling that plaintiffs should
21
have proceeded with litigation merely because the execution of
the settlement agreement lacked such a provision, regardless of
its impact on the settlement process, would be contrary to the
well-established public policy favoring settlements. (Schiro v.
Curci, supra, 220 Cal.App.3d at p. 844 [policy of the law highly
favors settlements].)
In sum, whether we view the settlement agreement as a
binding settlement that made it per se futile to bring the action
to trial under the rationale of Brown & Bryant or we consider the
settlement process here to constitute some other type of
impracticable circumstance, the period before the unanimous
consent condition failed must be excluded under section
583.340(c) from the calculation of the five-year period. Plaintiffs
argue the relevant exclusion period ran from the execution of the
settlement on January 17, 2020, until the mediator’s July 31,
2020, ruling that the condition precedent had failed. This may
overstate the case; nominal defendants did not sign the
agreement until January 21, 2020, and their notice to plaintiffs
on April 9, 2020, that the condition had failed could have
signified the collapse of the settlement and the resumption of
litigation. However, even then nominal defendants’ counsel held
out to plaintiffs the possibility that unanimous consent could still
be achieved after a short delay, so arguably the settlement did
not entirely fail until the mediator so ruled. Notwithstanding the
ambiguity of the April 9, 2020, communication from nominal
defendants’ counsel, if we err on the side of caution and toll the
five-year deadline for only the 79 days between January 21 and
22
April 9, 2020, after extending the five-year period by 127 days for
the periods during which litigation was stayed and an additional
six months pursuant to the pandemic emergency orders,
plaintiffs’ deadline to bring the action to trial did not expire until
October 20, 2021. The trial court’s order dismissing the case on
October 5, 2021, was therefore premature and erroneous, as the
five-year period had not yet run. 5
III. Causation and Diligence
A.
As alternative grounds for refusing to exclude the period
between the execution of the settlement agreement and the
mediator’s ruling, the trial court ruled that the period of the
failed settlement was not tolled because plaintiffs failed to show
that they could not have brought their claims to trial “as a result
of” the failed settlement agreement, and because they did not
exercise reasonable diligence in setting the case for trial after
learning in April 2020 that there was a disagreement about the
settlement. The trial court relied on this court’s statement in
Tanguilig, supra, 22 Cal.App.5th at page 323 that for the tolling
Nikki So-Kuen and Patrick Szeto were not named as
5
defendants until plaintiffs filed the first amended complaint in
June 2016, about eight months after plaintiffs filed the original
complaint. The five-year period is calculated separately for each
defendant. (See Brunzell Construction Co. of Nevada v. Wagner
(1970) 2 Cal.3d 545, 555 [applying predecessor statute]; Weil &
Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The
Rutter Group 2022) ¶11:193.3.) The order dismissing the action
as to Nikki So-Kuen and Patrick Szeto would thus likely need to
be reversed even if the five-year period were not tolled during the
79-day settlement agreement period.
23
provision in section 583.340(c) to prevent a case from being
dismissed, “a plaintiff must prove (1) a circumstance establishing
impossibility, impracticability, or futility, (2) a causal connection
between the circumstance and the failure to move the case to
trial within the five-year period, and (3) that she was reasonably
diligent in prosecuting her case at all stages in the proceedings.”
In finding that plaintiffs were not entitled to tolling, the court
pointed out that plaintiffs waited almost a year after the
mediator’s ruling to move to vacate the notice of settlement and
reset a case management conference.
Tanguilig does not support the trial court’s causation or
diligence analyses. To the extent it is relevant here, Tanguilig
involved whether certain class plaintiffs were entitled to tolling of
a 351-day period during which some of the claims asserted by one
of the representative plaintiffs were subject to mandatory
arbitration under an arbitration order, thus making it impossible
for the court to try all of the claims pleaded by the class during
that period. (Tanguilig, supra, 22 Cal.App.5th at pp. 324–327.)
Tanguilig upheld the trial court’s refusal to toll that 351-day
period, since the remainder of the claims in the case could have
been tried and little was done to make that happen. (Ibid.) In so
holding, Tanguilig focused on the plaintiffs’ “ability to ‘mov[e] the
case to trial’ during the relevant period” claimed to be tolled.
(Gaines, supra, 62 Cal.4th at p. 1101, italics added; Tanguilig,
supra, 22 Cal.App.5th at pp. 327–328.)
Besides not being supported by Tanguilig, the trial court’s
analysis of causation and diligence is also contrary to the purpose
24
of those factors and the legislative intent behind section
583.340(c).
B.
The main authority for the causation requirement is Sierra
Nevada, supra, 217 Cal.App.3d at pages 471–473. Sierra Nevada
required a “causal connection” between the circumstance alleged
to justify tolling and the impossibility or impracticability of
bringing the action to trial in order to distinguish between run-of-
the-mill illnesses of counsel during litigation, which do not cause
it to be impossible, impracticable, or futile to bring an action to
trial, and extended illnesses or illnesses on the eve of the
expiration of the five-year period, which do. Sierra Nevada’s
causation “principles were deemed applicable only with respect to
whether the claimed disability due to illness constituted
impracticability in the first instance. It did not hold that the
period of impracticability had to be the cause for not bringing the
case to trial on time.” (New West Fed. Savings & Loan Assn. v.
Superior Court (1990) 223 Cal.App.3d 1145, 1155–1156 (New
West).) Thus, the trial court’s examination of whether the
settlement period made it impossible for plaintiffs to meet the
five-year deadline as a whole did not adhere to the purpose of the
causation inquiry.
The trial court’s approach to causation was also contrary to
the intent behind section 583.340(c). As noted above, the Law
Revision Commission that drafted the statute intended to
abrogate decisions that had refused to toll a period of
impossibility if a reasonable time remained to bring the action to
25
trial after the conclusion of the period of impossibility. (Gaines,
supra, 62 Cal.4th at pp. 1100–1101.) The Law Revision
Commission cited two decisions to illustrate the approach to
tolling it was rejecting. In the first case, State of California v.
Superior Court, supra, 98 Cal.App.3d at pages 649–650, the court
held under the predecessor statute to section 583.340 that a
period in which trial of an action was impossible because the
parties were in judicial arbitration did not prevent the running of
the statute because the plaintiff had sufficient time after the end
of arbitration in which to bring the matter to trial. In the second,
the court in Brown v. Superior Court, supra, 62 Cal.App.3d at
page 199 rejected the plaintiff’s argument that the five-year
period had to be tolled while she was incarcerated and unable to
take the action to trial, because the plaintiff failed to take any
action to bring the case to trial after her release. Here, the trial
court’s reasoning that plaintiffs were not entitled to tolling
because the failed settlement did not cause the plaintiffs to miss
the five-year deadline (in that sufficient time remained after July
2020 to bring the action to trial) rests on the same discredited
rationale that section 583.340 was intended to abrogate.
Defendants defend the trial court’s causation analysis by
asserting that the trial court did not limit its causation inquiry to
the period after the failure of the settlement, and then arguing
that plaintiffs could have litigated the matter during the period
between the signing of the agreement and the failure of the
settlement. Defendants misread the trial court’s order, as the
court’s causation analysis was not aimed at the failed settlement
26
period. It focused exclusively on plaintiffs’ purported failures to
bring the case to trial after April 2020, and especially plaintiffs’
failure between August 2020 and June 2021 to move to withdraw
the notice of settlement. This was error, as the post-settlement
period was not relevant to the question of whether the settlement
caused it to be impossible, impracticable, or futile to bring the
action to trial between January 2020 and April or July 2020.
Moreover, as discussed ante, we disagree with defendants about
the feasibility of litigating the matter during the failed
settlement period. Plaintiffs were entitled to tolling for the 79-
day period between January 21 and April 9, 2020, because the
settlement caused it to be impossible or impracticable to bring
the matter to trial during that period, regardless of whether such
impossibility was what caused the plaintiffs ultimately to come
up against the trial deadline.
C.
The trial court likewise erred in depriving plaintiffs of the
benefit of the tolling provisions in section 583.340 based on their
purported failure to exercise reasonable diligence after the tolled
period. As we have explained, ante, section 583.340(c) required
tolling of the period between January and April 2020, so at the
time defendants brought their motion to dismiss in September
2021 and the trial court granted it in October 2021, the five-year
deadline had not yet run. Plaintiffs’ failure to push the case to
trial as diligently as the trial court might have liked after the
tolled period did not divest them of the benefit of the 79 days of
tolling to which they were entitled.
27
The trial court’s ruling preventing plaintiffs from relying on
section 583.340(c) because of their alleged failure to act diligently
later in the five-year period was contrary to the intent behind
section 583.340 that a period of impossibility “be excluded even if
the plaintiff has a reasonable time remaining after the period to
bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.)
The refusal in State of California v. Superior Court, supra,
98 Cal.App.3d at pages 649–650 to toll a period of impossibility
because the plaintiff there “made no special effort” to bring the
matter to trial after the period of impossibility ended can only be
construed as denying relief because the plaintiff did not act
diligently. The same is true of the holding in Brown v. Superior
Court, supra, 62 Cal.App.3d at page 199 that the plaintiff did not
make “ ‘all reasonable attempts’ ” to bring the case to trial after
being released from incarceration. The Law Revision
Commission’s stated intent to abrogate these holdings
demonstrates that it intended to foreclose the type of diligence
analysis the trial court employed. To the extent that there is an
ambiguity on the issue, we heed the instruction in section
583.130 to prefer the policy favoring trial or other disposition of
an action on the merits and liberally construe the tolling
provision in section 583.340(c). (Dowling, supra, 208 Cal.App.4th
at p. 693.)
The trial court’s diligence analysis impliedly evaluated
plaintiffs’ efforts to bring the action to trial based on the deadline
that would have applied in the absence of tolling. But diligence is
relative; a plaintiff whose case is closely approaching the five-
28
year deadline will take more significant efforts to get the matter
to trial than one who still has months or years left in which to try
the action. (Wilshire Bundy Corp. v. Auerbach (1991)
228 Cal.App.3d 1280, 1287 (Wilshire) [diligence required of
plaintiff increases as five-year deadline approaches].) An
evaluation of diligence based on the deadline that would apply in
the absence of tolling therefore ensures that a plaintiff will only
get the benefit of tolling a period under section 583.340(c) if the
plaintiff litigates the case on the assumption that tolling will not
be applied.
The trial court’s approach also keeps a plaintiff guessing
about whether a period of impossibility will be tolled until a
defendant moves to dismiss at the end of the nominal five-year
period and a court evaluates the plaintiff’s diligence throughout
the case. This is contrary to the Law Revision Commission’s
intent that tolling under section 583.340(c) be applied to
“increase[] certainty and minimize[] the need for a judicial
hearing to ascertain whether or not the statutory period has run,”
“consistent with the treatment of other statutory excuses” such as
the exception that excludes from the five-year period any time
during which jurisdiction of the court is suspended. (17 Cal. Law
Revision Com. Rep., supra, at p. 919.) A diligence requirement
that requires an assessment of a plaintiff’s conduct over the
course of years of litigation does not provide a clear deadline.
The Law Revision Commission’s approach favors certainty and ex
ante clarity over an approach that would require plaintiffs to
litigate under a sword of Damocles, fearing that the case could be
29
dismissed even if difficulties earlier in the case deprived them of
a substantial portion of the five-year period.
Accordingly, like several courts before us, we hold that it
was irrelevant whether plaintiffs could reasonably have taken
the case to trial even after the period of the failed settlement.
(Brown & Bryant, supra, 24 Cal.App.4th at p. 257; Chin v. Meier
(1991) 235 Cal.App.3d 1473, 1477–1478; Rose v. Scott (1991)
233 Cal.App.3d 537, 541–542 (Chin); New West, supra,
223 Cal.App.3d at pp. 1155–1156; see also Howard v. Thrifty
Drug & Discount Stores (1995) 10 Cal.4th 424, 435, 438–439
(Howard) [without comment, tolling five-year period during
period of impossibility, despite plaintiff’s later lack of diligence in
requesting the matter be set for trial]; Gaines, supra, 62 Cal.4th
at p. 1101 [focus is on “the plaintiff's ability to ‘mov[e] the case to
trial’ during the relevant [i.e., putatively tolled] period”], italics
added.)
D.
This is not to say that diligence is irrelevant to the question
of tolling under section 583.340(c). As with causation, a
plaintiff’s diligence can be relevant to the determination of
whether a circumstance truly made it impossible, impracticable,
or futile to bring the action to trial by using a reasonably diligent
plaintiff as a benchmark. (New West, 223 Cal.App.3d at
pp. 1155–1156.) Some circumstances will make it impossible or
impracticable to bring an action to trial regardless of the
plaintiff’s diligence, as with the period here in which the
settlement agreement was binding. But in other situations, if a
30
circumstance was one in which a plaintiff could have brought the
action to trial if he or she had acted diligently, then the
circumstance was not one in which trial of the case was in fact
impossible, impracticable, or futile. This was the case in
Tanguilig, where this court held that a plaintiff who chose to add
a co-plaintiff subject to an arbitration agreement could have
diligently proceeded to trial of her claims during a 351-day period
of claimed impossibility while her co-plaintiff’s claims were sent
to arbitration. (Tanguilig, supra, 22 Cal.App.5th at pp. 327–329.)
As the California Supreme Court explained before Gaines,
the section 583.340(c) inquiry “requires a fact-sensitive inquiry
and depends ‘on the obstacles faced by the plaintiff in prosecuting
the action and the plaintiff’s exercise of reasonable diligence in
overcoming those obstacles.’ [Citation.] ‘ “[I]mpracticability and
futility” involve a determination of “ ‘excessive and unreasonable
difficulty or expense,’ ” in light of all the circumstances of the
particular case.’ ” (Bruns v. E-Commerce Exchange, Inc. (2011)
51 Cal.4th 717, 731 (Bruns).) We therefore see diligence as not
being a separate element, but rather an indivisible part of the
overall inquiry into whether a given circumstance made it so
unreasonably difficult for a plaintiff to bring an action to trial
that the time period involved should be excluded from the
calculation of the five-year period. (See Tanguilig, supra,
22 Cal.App.5th at p. 323.)
Gaines applied the diligence requirement in this fashion,
considering whether a mediation stay made it impossible or
impracticable to bring an action to trial by examining whether
31
the plaintiff was reasonably diligent in seeking to lift the stay
and set a trial date before the five-year deadline. (Gaines, supra,
62 Cal.4th at pp. 1103–1104.) Likewise, Tanguilig, supra,
22 Cal.App.5th at pages 324, 327–328 and Martinez v. Landry’s
Restaurants, Inc. (2018) 26 Cal.App.5th 783, 795 considered
plaintiffs’ actions only during the period in which they claimed it
was impossible or impracticable to bring the action to trial.
E.
Defendants cite the remarks in Tamburina v. Combined
Ins. Co. of America (2007) 147 Cal.App.4th 323, 336 (Tamburina);
Bruns, supra, 51 Cal.4th at page 731; and Tanguilig, supra,
22 Cal.App.5th at page 323, that a plaintiff’s duty of diligence
applies “at all stages of the proceedings.” These statements are
correct in that a court will not exclude a period of putative
impossibility at any point in the five-year period unless a
reasonably diligent plaintiff, considering the stage of the
litigation at which the putative impossibility occurred, would
have been unable to overcome the difficulty. This point becomes
especially significant when paired with the principles that a
plaintiff’s duty of diligence increases as the case proceeds to the
end of the five-year period and that a plaintiff has the duty to call
the court’s attention to the deadline. (Tamburina, supra,
147 Cal.App.4th at p. 336; Howard, supra, 10 Cal.4th at p. 434.)
It is harder for a plaintiff to demonstrate that a circumstance
made trial impossible or impracticable at the end of the case, as
evidenced by decisions in which courts found a trial court order
near the five-year deadline setting a trial date beyond it did not
32
require tolling because of plaintiffs’ lack of diligence in raising
the problem. (E.g., Wilshire, supra, 228 Cal.App.3d at pp. 1287,
1289 [court error in removing case from active list at end of five-
year period did not make trial impracticable or impossible
because a diligent plaintiff would have discovered and corrected
the error].)
The “all stages” phrasing, however, should not be construed
to mean that a plaintiff’s lack of diligence later in a case can
cause the forfeiture of an earlier period of tolling to which the
plaintiff was entitled due to the legitimate impossibility,
impracticability, or futility of bringing the action to trial during
that time. Tamburina did not address how an inquiry into
diligence outside the putatively tolled period could be squared
with its acceptance of the fact that the causation inquiry looks
only within the tolled period or the Law Revision Commission’s
instruction to exclude all periods of impossibility, regardless of
whether reasonable time remains afterwards to bring an action
to trial. (Tamburina, supra, 147 Cal.App.4th at 335–336.) We
therefore disagree with Tamburina on this point. Bruns and
Tanguilig, meanwhile, merely quoted Tamburina’s remark
without discussion, and neither case used the diligence factor as
a basis for holding that plaintiffs were divested of their ability to
toll a period of legitimate impossibility because of dilatory
conduct later during the litigation, so they do not support
defendants here. (Bruns, supra, 51 Cal.4th at 731; Tanguilig,
supra, 22 Cal.App.5th at p. 323.)
33
Defendants’ citations to various other cases fare no better.
Most of the cases they cite did not consider the Law Revision
Commission’s intent to change the law regarding the application
of the section 583.340(c) exceptions. (Jordan v. Superstar
Sandcars (2010) 182 Cal.App.4th 1416, 1422; Perez v. Grajales
(2008) 169 Cal.App.4th 580, 593–594; Sanchez v. City of Los
Angeles (2003) 109 Cal.App.4th 1262, 1272–1273; Baccus v.
Superior Court (1989) 207 Cal.App.3d 1526, 1533–1535; Hill v.
Bingham (1986) 181 Cal.App.3d 1, 10–12.) Accordingly, they are
not authority for construing the meaning of that intent. 6 (People
v. Hillhouse (2003) 109 Cal.App.4th 1612, 1622 [“ ‘cases are not
authority for propositions they did not consider’ ”].)
De Santiago v. D & G Plumbing, Inc. (2007)
155 Cal.App.4th 365, 374 (De Santiago), refused to toll the five-
year deadline for a period in which trial was continued due to
court congestion because the plaintiff had not acted diligently
later in the period by requesting a trial date before the five-year
deadline. The court discussed Chin and Tamburina, concluded
6 The same is true of Schwenke v. J & P Scott, Inc. (1988)
205 Cal.App.3d 71, 79–80, and Minkin v. Levander (1986)
186 Cal.App.3d 64, 66, fn. 1, which Justice Streeter’s concurrence
cites. (Conc. opn. of Streeter, Acting P. J., at pp. 12, fn. 4, 13.)
Griffis v. S. S. Kresge Co. (1984) 150 Cal.App.3d 491 and
Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d
134, which Justice Streeter’s concurrence also cites (conc. opn. of
Streeter, Acting P. J., at pp. 12, fn. 4, 13), were decided in
January and February 1984, respectively, many months before
the passage of the legislation enacting the Law Revision
Commission’s recommended changes to the trial deadline
statutes. (See Stats. 1984, ch. 1705 [legislation enacted on
September 30, 1984].)
34
they conflicted, and sided with Tamburina. (De Santiago, at
pp. 375–376.) It stated that whether diligence was considered
part of the causation analysis or as an independent factor, it was
a critical factor to be considered when applying section
583.340(c). (Id. at p. 375.) De Santiago reasoned that it could not
find that the continuance for court congestion resulted in
impracticability because the plaintiff could still have brought the
case to trial despite the continuance. (Id. at p. 376.) It also
concluded that Chin’s approach of merely subtracting from the
five-year term any periods in which courtroom unavailability
prevented the matter from going to trial would “wreak havoc” on
application of the five-year deadline and that it was “unlikely this
was the intent of the Legislature in enacting section 583.340,
subdivision (c).” (Id. at pp. 376–377.) 7
7 Justice Streeter’s concurring opinion believes that the
conflict De Santiago identified between Chin and Tamburina is a
phantom one and that we are the first court to hold that trial
courts should not examine diligence outside the putatively tolled
period. (Conc. opn. of Streeter, Acting P. J., at pp. 21–22, 30.)
His concurring opinion also remarks that the Supreme Court has
never limited the diligence inquiry to the putative tolling period.
(Conc. opn. of Streeter, Acting, P. J., at p. 8.) But as noted ante,
the Supreme Court has on several occasions applied or discussed
the standard in the same way that we do. (Howard, supra,10 Cal.4th at pp. 435, 438–439; Gaines, supra, 62 Cal.4th at
p. 1101.) As also noted, ante in section III.C, Court of Appeal
decisions going back several decades have done the same. (E.g.,
Brown & Bryant, supra, 24 Cal.App.4th at p. 257; Rose v. Scott
(1991) 233 Cal.App.3d 537, 541–542; New West, supra,
223 Cal.App.3d at p. 1156 [affirming tolling of deadline based on
period of impossibility; the fact that plaintiffs only needed the
benefit of tolling because they miscalculated the correct deadline
was “irrelevant”].)
35
De Santiago, supra, 155 Cal.App.4th at page 376, did not
distinguish between the concepts of causation and diligence, so
consistency would demand that a diligence inquiry be limited to
the period of putative tolling, just like a causation inquiry. That
aside, excluding from the five-year term any periods in which the
parties cannot practicably bring an action to trial, whether
because of illnesses so extended as to make litigation
impracticable (see Sierra Nevada, supra, 217 Cal.App.3d at
p. 473), settlements, or courtroom unavailability when both
parties have called ready, would certainly extend the time for
parties to try their cases, but it would not create havoc. (Chin,
supra, 235 Cal.App.3d at p. 1478 [rejecting havoc-like argument
in case where courtrooms were unavailable when both parties
had called ready for trial].) The calculation would be relatively
straightforward, and the result would be consistent with the
policy expressed in section 583.130 favoring trials on the merits.
As for legislative intent, the Law Revision Commission’s
comment is explicit that this was precisely the intent behind
section 583.340(c). 8
8 In contrast to the simplicity of examining a plaintiff’s
diligence only as part of an inquiry into whether litigation was
impossible or impracticable in a given period, Justice Streeter’s
concurring opinion would have trial courts consider a plaintiff’s
diligence throughout a case while still focusing on diligence
during the period of putative tolling, and examine whether a
claimed delay has a causal connection with the missed trial
deadline while still excluding periods of true impossibility even if
there is ample time after the period to get to trial. (Conc. opn. of
Streeter, Acting P. J., at pp. 2, 10–11, 14–16, 30.) It is unclear
36
F.
In sum, we conclude that the trial court erred in precluding
plaintiffs from relying on section 583.340(c) tolling for the
January 2020–April 2020 period during which the settlement
agreement was in place. That conclusion, however, does not free
plaintiffs of the obligation to diligently prosecute their cases.
Besides the fact that diligence is properly part of the analysis of
whether a circumstance truly made it impossible for a reasonable
plaintiff to bring an action to trial (as discussed ante), a lack of
diligence can lead to the dismissal of a case despite the
application of section 583.340. Separate from the five-year
mandatory dismissal deadline in section 583.310, sections
583.410 and 583.420 grant trial courts discretion to dismiss an
action for failure to bring it to trial within two years. (§§ 583.410,
subd. (a); 583.420, subd. (a)(2)(B); Cal. Rules of Court, rule
3.1340(a).) When exercising this discretion, trial courts are
required to consider, among other things, a plaintiff’s diligence in
pursuing discovery and other pretrial proceedings. (Cal. Rules of
Court, rule 3.1342(e)(4).) Like the five-year deadline, the two-
year deadline can be tolled for impossibility, impracticability, or
futility. (§ 583.420, subd. (b).) But since dismissal after the two-
year deadline is discretionary rather than mandatory, a
how these considerations can be reconciled. Even if they can, at
best such reconciliation would be, as Justice Streeter’s concurring
opinion admits, “fiendishly nuanced for courts to apply.” (Id. at
p. 28.) The difficulties inherent in this approach thus seem at
odds with the Law Revision Commission’s stated desire to
minimize the need for judicial hearings and increase certainty in
applying section 583.340(c).
37
plaintiff’s diligence can have a strong influence on the trial
court’s decision whether to dismiss a case after two years.
(Howard, supra, 10 Cal.4th at pp. 439–441 & fn. 6.)
Relatedly, a plaintiff’s diligence is significant when a
plaintiff files a motion to specially set a trial date, which may be
necessary to get an action to trial late in the five-year period.
(Howard, supra, 10 Cal.4th at pp. 440–441.) A trial court faced
with such a motion must consider the same factors as when
considering a discretionary dismissal under section 583.410,
including dilatory conduct. (Id. at pp. 440 & fn. 6, 441.) 9 And as
with discretionary dismissals, a trial court can deny a motion to
specially set a case for trial if a plaintiff has made little effort to
prosecute a case and has waited until shortly before the
expiration of the five-year deadline to request a trial. (See id. at
pp. 435, 442–444 & fn. 6.) This means that a plaintiff who
receives the benefit of the tolling provision but waits to request a
trial until shortly before the tolled deadline can still find a lack of
diligence earlier in the case hinders his or her attempts to get a
case to trial.
DISPOSITION
The trial court’s order dismissing the action is reversed. As
a result, the trial court’s judgment awarding attorney’s fees to
Kwok Hung Szeto, Nikki So-Kuen Szeto, and Patrick Szeto and
9Howard, supra, 10 Cal.4th at p. 441 & fn. 7, discussed
then-applicable former rule 373 of the California Rules of Court.
The Judicial Council renumbered rule 373 as rule 3.1342 as of
January 1, 2007. (See Franklin Capital Corp. v. Wilson (2007)
148 Cal.App.4th 187, 213.)
38
its order awarding attorney’s fees to ARP-I, LLC and ARP-II,
LLC are also reversed. (Gillan v. City of San Marino (2007)
147 Cal.App.4th 1033, 1053.)
BROWN, J.
WE CONCUR:
STREETER, Acting, P. J.
GOLDMAN, J.
39
STREETER, Acting P. J., Concurring.
I concur in the lead opinion’s thoughtful analysis of
whether the parties reached a binding and enforceable settlement
agreement, but join the discussion section of the opinion (pts. I.
and II.) only on that point. Although I agree with some of my
colleagues’ discussion of causation and diligence (pt. III.), I think
it would be an abuse of discretion to dismiss this case on this
record under any causation and diligence analysis.
It seems beyond genuine dispute that these plaintiffs have
been reasonably diligent in moving the case forward, evaluating
that issue based on what they have done over the history of the
case as a whole. It also seems beyond genuine dispute that there
is a causal connection between the delays that beset them at the
end of the mandatory time-to-trial period and their failure to
secure a trial date within that period.
But while I agree with the disposition—reversal of the
order of dismissal—I do so with some reservations, especially
about my colleagues’ criticism of Tamburina v. Combined Ins. Co.
of America (2007) 147 Cal.App.4th 323. Those reservations are
significant enough that I can agree with part III. of the lead
opinion only in result. Below, I explain my reasons for parting
ways on the narrow legal issue addressed there.
I.
A.
“Because defendants argued to the mediator that he had
authority under the settlement agreement to resolve the parties’
dispute and then prevailed before the mediator,” the lead opinion
1
holds, “principles of judicial estoppel would prevent defendants
from now arguing to the contrary . . . .” (Lead opn., ante, at
p. 18.) I agree. A plaintiff ’s diligence generally, not just during a
claimed tolling period, always has a role to play in the analysis of
the issue of estoppel (Tresway Aero, Inc. v. Superior Court (1971)
5 Cal.3d 431) under the basic precept of equity that “ ‘ “he who
seeks equity must do equity.” ’ ” (Dickson, Carlson & Campillo v.
Pole (2000) 83 Cal.App.4th 436, 446; 2 Pomeroy, Equity
Jurisprudence (5th ed. 1941) § 385, pp. 51–53.) Implicitly, that
conclusion carries with it a determination that the plaintiffs were
sufficiently diligent for the entirety of the case’s history so that
we may erect the bar of estoppel.
I believe it would be an abuse of discretion for the trial
court to reach any different conclusion in rejecting the plaintiffs’
claim to tolling under Code of Civil Procedure 1 section 583.340,
subdivision (c). But while I agree that the focus of the tolling
inquiry under that statute should have been on events that took
place during the claimed tolling period, I do not agree that a trial
court’s evaluation of diligence in assessing impracticability must
be confined to that period of time. The distinction is subtle but
important.
B.
“The statutes governing dismissal for delay in prosecution
were revised in 1984. (Stats. 1984, ch. 1705, § 5, pp. 6176–6180.)
The legislative history makes clear that the revision was
1All subsequent undesignated statutory citations are to the
Code of Civil Procedure.
2
prepared by the California Law Revision Commission” (the Law
Revision Commission or the Commission). (Gaines v. Fidelity
National Title Ins. Co. (2016) 62 Cal.4th 1081, 1090 (Gaines).)
The revised statutory scheme adopts recommendations made by
the Law Revision Commission in a report to the Legislature
dated June 2, 1983. (Revised Recommendation Relating to
Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law
Revision Com. Rep. (1984) p. 905.)
In interpreting and applying the mandatory time-to-trial
scheme (§§ 583.110–583.430), 2 we must bear in mind that, with
certain clarifications recommended by the Commission, this
scheme codifies a regime of case law that developed over the
course of many years under a predecessor statute dating from the
early 20th century, former section 583. (Gaines, supra,
2 Typically under this scheme, the mandatory time-to-trial
period is five years after the action is commenced. (§ 583.310;
e.g., Gaines, supra, 62 Cal.4th 1081.) But there are some
circumstances in which the length of the period may differ. If, for
example, there is an appeal from the judgment and the case is
returned to the trial court for a new trial, the period will be three
years from the filing of the remittitur on appeal, or if no appeal is
taken and the trial court grants a postjudgment motion for a new
trial, the period will be three years from the order granting a new
trial. (§ 583.320, subd. (a); e.g., Nunn v. JPMorgan Chase Bank,
N.A. (2021) 64 Cal.App.5th 346 [three years from remittitur].) Or
if the parties agree to an extension, the period will be whatever
the parties agree upon. (§ 583.330; e.g., Nunn, supra,
64 Cal.App.5th 346.) Thus, I refer variously to the “mandatory
time-to-trial period,” the “mandatory time-to-trial scheme,” the
“mandatory time-to-trial statutes,” the “mandatory time-to-trial
deadline,” or the “mandatory time-to-trial clock,” without
specifying a length.
3
62 Cal.4th at p. 1090.) As a result, the statutory interpretation
issue we deal with here is somewhat unusual. The statutory text
is key, as always, but because the Legislature’s intent was to
restate and codify case law developed under former section 583,
our interpretation must be guided by an extensive body of
precedent predating the revision. (Gaines, at p. 1090.)
The idea that a plaintiff has a continuing duty to “proceed
with reasonable diligence in the prosecution of an action” is not
only codified as state policy in the mandatory statutory time-to-
trial scheme (§ 583.130) but is deeply entrenched in the relevant
case law under former section 583. It can be found in post-1984
cases (e.g., Cannon v. City of Novato (1985) 167 Cal.App.3d 216,
223) as well as pre-1984 cases going back decades before that
(e.g., Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d
254, 260). In applying the revised statute, the Legislature has
expressed a preference for the competing policy favoring decision
on the merits when these two policies collide (§ 583.130; see
Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983,
996–1003 (dis. opn. of Johnson, J.)), but that rule of construction
has no application here since there is no need to resolve any
conflict between the two on this record. (See pt. II.A., post.)
Of course, in some circumstances a plaintiff ’s mandatory
time-to-trial clock may be suspended—tolled, as we say—under
section 583.340. To understand how tolling works, we must keep
in mind that the structure of the statute guides our analysis
along with its text and the pre-1984 case law. Under section
583.340, subdivisions (a) (suspension of jurisdiction to proceed)
4
and (b) (stay or injunction against proceeding), the availability of
tolling is “unconditional” (Ocean Services Corp. v. Ventura Port
Dist. (1993) 15 Cal.App.4th 1762, 1774) and “ ‘diligence . . . has no
place in the analysis’ ” (ibid.; see Brock v. Kaiser Foundation
Hospitals (1992) 10 Cal.App.4th 1790, 1798, fn. 6; Herring v.
Peterson (1981) 116 Cal.App.3d 608, 616). But section 583.340,
subdivision (c) operates quite differently.
Section 583, subdivision (c), a catchall provision, codifies
the holding in Christin v. Superior Court (1937) 9 Cal.2d 526(Christin). Christin held that “the time during which ‘for all
practical purposes, going to trial would be impossible, whether
this was because of total lack of jurisdiction in the strict sense, or
because proceeding to trial would be both impracticable and
futile’ [citation] must be excluded in computing the five-year
period.” (J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666,
671.) Thus, under section 583, subdivision (c), “A circumstance
that does not qualify for automatic tolling under section
583.340[, subdivision] (b) may nonetheless be excludable from the
five-year period if the circumstance makes it ‘impossible,
impracticable, or futile’ to bring the action to trial.” (Gaines,
supra, 62 Cal.4th at p. 1100.)
While, upon a factual showing that the requisite triggering
conditions have been met, sections 583.340, subdivisions (a)
and (b) are triggered automatically without regard to diligence,
trial courts are “vested with discretion” (Wyoming Pacific Oil Co.
v. Preston (1958) 50 Cal.2d 736, 741) when they determine
whether conditions of impossibility, impracticability, or futility
5
exist. (Bennett v. Bennett Cement Contractors, Inc. (1981)
125 Cal.App.3d 673, 677.) After 1984, that has continued to be
the case (Brown & Bryant, Inc. v. Hartford Accident & Indemnity
Co. (1994) 24 Cal.App.4th 247, 251–252), even though section
583.340, subdivisions (a), (b), and (c) are all cast in mandatory
language. (§ 583.340 [“In computing the time within which an
action must be brought to trial pursuant to this article, there
shall be excluded the time during which any of the following
conditions existed” (italics added)].)
Whether the plaintiff showed reasonable diligence,
especially in the final stages of the mandatory time-to-trial period
(Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532), has
always been central to the exercise of the court’s discretion.
(Jensen v. Western Pac. R. R. Co. (1961) 189 Cal.App.2d 593, 596;
see Baccus, at pp. 1532–1533 [“reasonable diligence constitutes a
guideline by which to assess the existing exceptions of
impossibility, impracticability, or futility”].) Indeed, diligence is
the “critical factor” the court must consider. (Moran v. Superior
Court (1983) 35 Cal.3d 229, 239 (Moran), superseded by statute
on other grounds as stated in Howard v. Thrifty Drug & Discount
Stores (1995) 10 Cal.4th 424.)
C.
The diligence inquiry is a holistic test. What is impossible,
impracticable, or futile must be determined in light of “all the
circumstances in the individual case, including the acts and
conduct of the parties and the nature of the proceedings
themselves.” (Moran, supra, 35 Cal.3d at p. 238; see Hartman v.
6
Santamarina (1982) 30 Cal.3d 762, 768; Brunzell Constr. Co. v.
Wagner (1970) 2 Cal.3d 545, 553; General Motors Corp. v.
Superior Court (1966) 65 Cal.2d 88, 96–97; Woley v. Turkus
(1958) 51 Cal.2d 402, 407; Pacific Greyhound Lines v. Superior
Court (1946) 28 Cal.2d 61, 67; see also 2 Cal. Civil Procedure
Before Trial (Cont.Ed.Bar 1978) § 31.25 [cited by the Law
Revision Commission, 17 Cal. Law Revision Com. Rep., supra, at
p. 918].)
“A determination of due diligence requires an examination
of the circumstances existing throughout” the mandatory time-to-
trial period. (Cannon v. City of Novato, supra, 167 Cal.App.3d at
p. 223.) This all-encompassing standard permits a contextual
evaluation of the plaintiff ’s conduct relative to the conduct of
other parties in the case. Hence, the formulation, “the acts and
conduct of the parties”—plural. (Woley v. Turkus, supra,
51 Cal.2d at p. 407, italics added.) 3 And equally important, since
3 The court in Westinghouse Electric Corp. v. Superior Court
(1983) 143 Cal.App.3d 95 explained this well: “We believe the
appropriateness of our approach is illustrated by the following
example. Under some circumstances it may clearly be
impracticable to bring a case to trial because substantial
discovery remains to be completed at or near the end of the five-
year period. The necessity for further discovery may be due to
dilatoriness on the part of the plaintiff or on the part of
defendant. If plaintiff has completed all of his discovery and is or
has been ready to proceed to trial and the record shows that
defendant has failed to vigorously pursue discovery, the
nonreadiness of the case is due to defendant. In that situation,
impracticability would constitute an excuse for noncompliance if
plaintiff ’s conduct is otherwise reasonable. However, had
plaintiff been the dilatory party, mere impracticability is not an
7
“the concepts of impracticability and futility resist comprehensive
definition” (General Motors Corp. v. Superior Court, supra,
65 Cal.2d at p. 95), the “nature of the case” feature of the
standard gives courts the flexibility to account for the myriad
procedural circumstances where an excuse for impracticability or
futility may arise in litigation (see Bank of America v. Superior
Court (1988) 200 Cal.App.3d 1000, 1014–1015 [listing examples]).
In all of our Supreme Court’s many applications of the “all
the circumstances of the individual case” standard, the court has
never limited the diligence inquiry strictly to the putative tolling
period. Quite to the contrary, it has made clear that the proper
analysis is an overall inquiry into case-as-a-whole diligence.
Moran is the best example. That case involved a brief tolling
period due to a compelled judicial arbitration at the end of the
mandatory five-year timetable, preceded by years in which the
plaintiff had moved the case forward in a reasonable fashion.
(Moran, supra, 35 Cal.3d at pp. 234–236.) When, following the
arbitration that resulted in an award for the plaintiff, the
defendant requested a trial de novo, and the trial court failed to
place the case back on calendar for trial in time to meet the five-
year deadline. (Ibid.)
excuse, since the impracticability arises from plaintiff ’s own
fault. We believe the above examples and analysis are
particularly pertinent to the instant case. They support the trial
court’s determination that, notwithstanding [the plaintiff ’s] due
diligence throughout the five-year period [in this case], it was
impracticable to bring this case to trial within that period.” (Id.
at pp. 105–106.)
8
The Moran court looked at the entirety of the case’s history
and concluded: The plaintiff ’s “overall conduct during the five-
year statutory period reflects her reasonable diligence in
prosecuting the case.” (Moran, supra, 35 Cal.3d at p. 240.) The
court examined every step in the plaintiff ’s prosecution of the
case prior to being ordered into arbitration, pointing out her
active participation in taking and providing discovery and her
designation of expert witnesses. (Ibid.) Given this overall
history, the court concluded, “the impossibility of [the plaintiff]
bringing her case to trial at the very end of this period due to the
court’s failure to reschedule it warrants invoking the implied
exception to mandatory dismissal pursuant to [former] section
583[, subdivision] (b).” (Ibid.)
The Supreme Court has reaffirmed the “all of the
circumstances in the individual case” diligence standard as a
guideline for evaluating the applicability of section 583.340,
subdivision (c) on multiple occasions in recent years (Gaines,
supra, 62 Cal.4th at p. 1100; Bruns v. E-Commerce Exchange,
Inc. (2011) 51 Cal.4th 717, 730), each time citing Tamburina
favorably. The Supreme Court has also made clear that the
burden of proving impossibility, impracticability, or futility lies
with the plaintiff, and that in evaluating whether this burden
has been met the trial court makes a factual determination,
reviewable on appeal for abuse of discretion. “Under that
standard, ‘[t]he trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo,
and its application of the law to the facts is reversible only if
9
arbitrary and capricious.’ ” (Gaines, supra, 62 Cal.4th at p. 1100;
see Bruns, supra, 51 Cal.4th at pp. 726, 730.)
D.
Naturally, to be sure, the focal point of a trial court’s
inquiry under section 583.340, subdivision (c) will be on the
period of claimed delay. After all, “The statute refers to
excluding ‘the time during which . . . [b]ringing the action to trial,
for any other reason, was impossible, impracticable, or futile.’
(§ 583.340[, subdivision] (c).)” (Gaines, supra, 62 Cal.4th at
p. 1100, italics added; id. at p. 1101 [“courts have focused on the
extent to which the conditions interfered with the plaintiff ’s
ability to ‘mov[e] the case to trial’ during the relevant period”].)
But “[i]t is well established that ‘ “ ‘[e]very period of time during
which the plaintiff does not have it within his power to bring the
case to trial is not to be excluded in making the computation.’ ” ’ ”
(Gaines, at p. 1101.)
Brief delays that may be considered “ ‘ “ordinary incidents
of [civil litigation] . . . [are] not within the contemplation of ” ’ ”
section 583.340, subdivision (c), and the measuring rod for
evaluating that issue is diligence. (Gaines, supra, 62 Cal.4th at
p. 1101.) “This rule reflects the Legislature’s understanding that
a reasonably diligent plaintiff should be able to bring the case to
trial within the relatively lengthy period of five years
notwithstanding such ordinary delays. [Citation.] To hold
otherwise would allow plaintiffs to litigate piecemeal every
period, no matter how short, in which it was literally
impracticable to try the case, thus rendering the statute ‘utterly
10
indeterminate, subjective, and unadministerable.’ ” (Ibid.)
Filtering out things that “are ordinary steps in the prosecution of
the action” “requires a fact-specific inquiry in light of all of the
circumstances in the case.” (Id. at p. 1102.)
The touchstone for analysis when evaluating a section
583.340, subdivision (c) excuse is whether the claimed tolling
delay was avoidable. “[C]ase law both predating and postdating
the 1984 statutory revision has long held that ‘[f]or the tolling
provision of section 583.340[, subdivision (c)] to apply, there must
be “a period of impossibility, impracticability or futility, over
which plaintiff had no control.” ’ ” (Gaines, supra, 62 Cal.4th at
p. 1102, italics in original; see Christin, supra, 9 Cal.2d at p. 532
[“The purpose of [the five-year] statute is plain: to prevent
avoidable delay for too long a period” (italics added)].)
In the evaluation of whether a period of delay was
avoidable, events that occurred both before and after the claimed
tolling period will often be relevant. It makes no sense to force
trial courts to put blinders on in evaluating diligence by confining
their inquiry to the claimed tolling period. Courts must be able
to consider whether, at every step in the case, the plaintiff did
everything it reasonably could to avoid a delay that might become
an obstacle to meeting the mandatory time-to-trial deadline. A
legion of cases cited by the defendants show that courts have long
been doing exactly that. (Jordan v. Superstar Sandcars (2010)
182 Cal.App.4th 1416, 1422; Perez v. Grajales (2008)
169 Cal.App.4th 580, 593–594; Sanchez v. City of Los Angeles
(2003) 109 Cal.App.4th 1262, 1272–1273; Baccus v. Superior
11
Court, supra, 207 Cal.App.3d at pp. 1533–1535; Hill v. Bingham
(1986) 181 Cal.App.3d 1, 10–12.) 4
Some of the cases relied upon by my colleagues provide
additional examples. If, for instance, a plaintiff makes a tactical
decision early in the history of a case that leads inevitably to a
later claim of impracticability (Tanguilig v. Neiman Marcus
Group, Inc. (2018) 22 Cal.App.5th 313), or if a plaintiff makes a
claim of impracticability for some period of time early in the
history of the case but then later fails to avail itself of a ready
means of accelerating the case thereafter (Wilshire Bundy Corp.
v. Auerbach (1991) 228 Cal.App.3d 1280), then what happened
outside the claimed tolling period is a factor the court may
properly consider in its discretionary determination of the
totality of the circumstances.
4 To these cases, I would add Schwenke v. J & P Scott, Inc.
(1988) 205 Cal.App.3d 71, 79–80 (plaintiff who argued it was
impossible to move his case forward while he was awaiting
decision on defendant’s motion to transfer his case from
municipal to superior court was not entitled to tolling because he
could have sought transfer himself at an earlier point in time
and, after the transfer motion was granted, he requested that the
case be removed from the trial calendar for two and a half years),
and Karubian v. Security Pacific Nat. Bank (1984)
152 Cal.App.3d 134, 136, 138–140 (plaintiff argued it was
impossible to seek a trial date within the five-year period
because, for nearly eighteen months as the mandatory trial
deadline approached, the court failed to notify his counsel the
case was eligible for a trial readiness certificate; it was not an
abuse of discretion to reject that argument where the plaintiff
could not show diligence prior to the final eighteen months in the
mandatory time-to-trial period, and he failed to seek a special
trial setting until 40 days before expiration of the deadline).
12
According to the lead opinion, the fact that so many cases
say diligence must be examined in “all stages of the proceedings”
(e.g., Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th at
p. 731; Brock v. Kaiser Foundation Hospitals, supra,
10 Cal.App.4th at pp. 1798–1799, fn. 6; Minkin v. Levander
(1986) 186 Cal.App.3d 64, 69; Griffis v. S. S. Kresge Co. (1984)
150 Cal.App.3d 491, 496; King v. State of California (1970)
11 Cal.App.3d 307, 310), does not mean that “a plaintiff ’s lack of
diligence later in a case can cause the forfeiture of an earlier
period of tolling to which the plaintiff was entitled due to the
legitimate impossibility, impracticability, or futility of bringing
the action to trial during that time.” (Lead opn., ante, at pp. 32,
33.) It may seem neatly logical to say that a plaintiff who is
entitled to tolling under section 583.340, subdivision (c) should
not be stripped of that right for a post-tolling failure of diligence,
but this framing of the issue begs the question we are dealing
with here.
A plaintiff ’s diligence—evaluated in the context of the case
as a whole—is a threshold consideration courts consider in
making the discretionary determination whether the plaintiff
may lay claim to a section 583.340, subdivision (c) excuse in the
first place. (See Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340
[“Where a plaintiff possesses the means to bring a matter to trial
before the expiration of the [mandatory dismissal] period by filing
a motion to specially set the matter for trial, plaintiff’s failure to
bring such motion will preclude a later claim of impossibility or
impracticability” (italics added)]; Sanchez v. City of Los Angeles,
13
supra, 109 Cal.App.4th at p. 1274 [quoting Tejada for the same
point]; Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 165
[same]; see also Hughes v. Kimble (1992) 5 Cal.App.4th 59, 69
[“application of the impossibility exception is conditioned upon
whether ‘the plaintiff exercised reasonable diligence in
prosecuting his or her case’ ” (italics omitted)].)
In Tejada, for example, the plaintiff tried to claim
impracticability because, early in the history of the litigation, the
defendant was out of the country and unavailable to participate
in a judicial arbitration. (Tejada v. Blas, supra, 196 Cal.App.3d
at pp. 1338–1339.) “[P]laintiff was prepared to go forward” with
the arbitration during that time, but the resulting delay had
nothing to do with the fact that after the arbitration was
completed the plaintiff failed to “use reasonable efforts to bring
the matter to trial during the following one-year period preceding
the expiration of the five years.” (Id. at p. 1340.) The court was
not focused on whether plaintiff forfeited or should be deprived of
a right to tolling. Its analysis looked at whether, with greater
diligence, the plaintiff could have avoided missing the mandatory
time-to-trial deadline, despite the delay. This was fully
consistent with Christin, which explained that the purpose of
former section 583 was to “prevent avoidable delay for too long a
period.” (Christin, supra, 9 Cal.2d at p. 532, italics in original.)
E.
My colleagues’ narrow framing of the diligence inquiry for
section 583.340, subdivision (c) tolling purposes turns on the
rationale that, in abrogating State of California v. Superior Court
14
(1979) 98 Cal.App.3d 643, and Brown v. Superior Court (1976)
62 Cal.App.3d 197, pursuant to the recommendation of the Law
Revision Commission, the Legislature must have “intended to
foreclose the type of diligence analysis the trial court employed”
when it examined the plaintiffs’ diligence after August 2020.
(Lead opn., ante, at p. 28.) That, in my view, overreads the
legislative history. Nothing in the Law Revision Commission’s
brief discussion of State of California and Brown mentions
diligence.
What the Law Revision Commission condemned was a
specific rule denying plaintiffs the benefit of tolling for
impossibility, impracticability, or futility where the impediment
to moving forward “ended sufficiently early in the statutory
period so that the plaintiff still had a ‘reasonable time’ to get the
case to trial.” (17 Cal. Law Revision Com. Rep., supra, at p. 919;
see Gaines, supra, 62 Cal.4th at p. 1101 [referring to the
overruling of State of California and Brown, and then stating,
“Thus, a condition of impossibility, impracticability, or futility
need not take the plaintiff beyond the five-year deadline to be
excluded; it will be excluded even if the plaintiff has a reasonable
time remaining after the period to bring the case to trial”].)
The Law Revision Commission cited State of California and
Brown as examples (17 Cal. Law Revision Com. Rep., supra, at
p. 919, fn. 60), but these two cases were not alone in taking this
now discarded approach. State of California and Brown were two
examples in a line of precedent standing for the same proposition.
Other examples include Weeks v. Roberts (1968) 68 Cal.2d 802,
15
807–808, superseded by statute as stated in Salas v. Sears,
Roebuck & Co. (1986) 42 Cal.3d 342, 348–349; Manor Drug Stores
v. Blue Chip Stamps (1977) 71 Cal.App.3d 423, 424, Youngblood
v. Terra (1970) 10 Cal.App.3d 533, 537, Bolsinger v. Marr (1969)
1 Cal.App.3d 267, 273, Sherberne & Associates v. Vector Mfg. Co.
(1968) 263 Cal.App.2d 68, 73, and O’Donnell v. City & County of
S. F. (1956) 147 Cal.App.2d 63, 66. Many of these cases applied a
diligence analysis to the time remaining on the pretrial schedule,
but they also stood for a more mechanical proposition—that the
availability of some period of time after a delay, by itself,
defeated tolling. This was the “rule” decried by the Commission.
Without any analysis of how the reasonable-time-
remaining cases fit into the case law prior to 1984, the lead
opinion speaks vaguely of “the intent behind section 583.340(c)”
(lead opn., ante, at pp. 25, 28, 36), and brushes aside all of the
cases cited by the defendants for not considering that intent, but
makes no effort to discern what the Law Revision Commission
found to be problematic about State of California and Brown.
Instead, my colleagues read State of California and Brown as
diligence cases and leap to the conclusion that the diligence
analyses in those cases is what the Law Revision Commission
must have been focused on. But our task is not to read these two
cases and excise from the law what we, as judges today, think
they held, or even what the judges who decided them decades ago
said about their own reasoning (which is not discussed in the
Law Revision Commission’s report).
16
It may be counterintuitive to the judicial mind to see how
the Legislature could possibly have any understanding different
from our own, but in case-by-case adjudication we are used to
reading appellate opinions, and naturally we have a precise
understanding of precedent as it applies in that process,
circumscribed by the facts and reasoning in individual cases. A
Legislature does not operate that way. To understand how the
Legislature changed the law in 1984, we must look at what law
reform objectives the Law Revision Commission sought to
accomplish, rather than go behind its report and work backwards
from the facts and reasoning in the cases it recommended for
abrogation.
Examining the Law Revision Commission’s report for what
it was—a policy-level document making prescriptive
recommendations to clear up confusion in the law—the
Commission said three things of particular note. First, speaking
in general terms, it described “a significant problem” with the
five-year mandatory dismissal statute. “The problem arises
when, within the last months before the statute is about to
expire, an event occurs that suspends the running of the
statute . . . . [W]hen the tolling or extension ends and the statute
begins to run again, the plaintiff has only a short time to bring
the action to trial. In many cases, this is an unrealistic or
impossible deadline to meet.” (17 Cal. Law Revision Com. Rep.,
17
supra, at pp. 912–913.) 5 Second, addressing the impossibility,
impracticability, or futility tolling exception specifically, the
Commission confirmed that avoidability of delay is a critical
consideration. The impracticability excuse “must be liberally
construed,” the Commission explained, bearing in mind that
“bringing a case to trial frequently may be hindered by causes
beyond the plaintiff ’s control.” (17 Cal. Law Revision Com. Rep.,
supra, at p. 918.) Third, the Commission criticized a “rule” in
then extant case law—this is where State of California and
Brown are cited as examples—characterizing the “rule” as one
that renders tolling inapplicable if the tolling event happens too
early in a case’s history. “The proposed law changes this rule so
that the statute tolls regardless when during the statutory period
the excuse occurs,” the Commission explained. (Id. at p. 919.)
Against that policy backdrop, we must consider what the
Law Revision Commission, and hence the Legislature, viewed as
problematic about the “rule” attributed to State of California and
Brown. Based on what the Commission said in its report, it
seems clear it believed these cases arbitrarily limited the
availability of tolling for impracticability to a late-in-the-case
scenario. The judgments about what constituted a “reasonable
time” to bring a case to trial were ad hoc, and the one-
5 The Law Revision Commission’s recommended enactment
of section 583.350—the grace period statute—appears to have
been designed to address the problem of creating an unfair time
“squeeze” for plaintiffs near the end of the mandatory time-to-
trial schedule. (17 Cal. Law Revision Com. Rep., supra, at
p. 936.)
18
dimensional analysis these cases employed stood in tension with
the more contextual—and more well-established—“all of the
circumstances of the individual case” tolling analysis in many
other Court of Appeal cases (e.g., Westinghouse Electric Corp. v.
Superior Court, supra, 143 Cal.App.3d at pp. 106–107; Bank of
America v. Superior Court, supra, 200 Cal.App.3d at pp. 1014–
1016), not to mention in the extensive body of Supreme Court
precedent enunciating that broader standard. (See ante, at
pp. 6–7.) The difficulty presented by the reasonable time
remaining rule was in figuring out how late in a case’s history a
delay-causing event would have to occur in order to qualify for
tolling, or how long it would have to last before tolling would kick
in.
Ironically, given the focus of our disagreement today over
whether diligence analysis should be temporally limited in some
fashion, this was simply a matter of timing, and the Commission
came out firmly against temporal limitation. According to the
Commission, the better solution was simple: Under the fairer,
more liberal rule, an event qualifying as impossible,
impracticable, or futile could arise at any time in a case’s history.
That is what necessitated the overruling of State of California
and Brown, not dissatisfaction with the diligence analysis they
applied, which the Commission never mentioned. 6
6 Justice Goldman seems bothered that Tejada and some of
the other post-1984 cases following it cite and rely on State of
California and Brown. I am not. If there was a need to evaluate
State of California and Brown in the normal way we do when
19
Whether, today, we read State of California and Brown the
same way the Commission did is beside the point. Because in one
strand of the law prior to 1984, some cases had deviated from the
whole-of-the-case approach reaffirmed in Moran only months
before the Legislature acted, the “certainty” the Commission
spoke of in recommending disapproval of State of California and
Brown was simply its declared objective to achieve clarifying
uniformity in the case law. That is what law reform bodies do
(think, for example, of the American Law Institute). In my view,
this is a better reading of the pertinent legislative history than
the one the lead opinion adopts, since it is consistent with the
Law Revision Commission’s overall mission—law clarification,
not wholesale rearrangement of the architecture of pre-1984 law.
II.
A.
Although the Legislature made clear in 1984 that the mere
existence of a “reasonable time” to take a case to trial after the
period claimed for tolling cannot be dispositive, what the plaintiff
does with that time—the traditional concern of diligence
assessment—remains relevant as a consideration in evaluating
“all of the circumstances of the individual case” throughout its
considering the continued viability of case law—again, I do not
think reading these cases for their stated holdings and their
reasoning is the task here—I suppose I would say the references
to State of California and Brown in later cases should have
included citation history noting “superseded by statute on other
grounds.” But careful cite-checkers know that we all make
judgment calls about when to employ such notation for precision.
20
entire procedural history. That is why, after the enactment of
section 583.340, subdivision (c), in line with statutory intent,
properly read, courts have continued to employ diligence analysis
as a prerequisite to section 583.340, subdivision (c) tolling just as
broadly and flexibly as they did before the statute was enacted,
looking to diligence in the case as a whole. And in undertaking
this fact-specific analysis, trial courts have the primary role,
since they are “ ‘ “in the most advantageous position to evaluate
[the] diverse factual matters” ’ ” that bear on impossibility,
impracticability, or futility “ ‘ “in the first instance.” ’ ” (Gaines,
supra, 62 Cal.4th at p. 1100.)
Holding that Tamburina was incorrect to inquire into
diligence “outside the putatively tolled period” (lead opn., ante, at
p. 33), my colleagues take a more constricted view of trial court
discretion. So far as I am aware, we are the first court to so hold.
“To the extent that there is an ambiguity on the issue,” my
colleagues explain, “we heed the instruction in section 583.130 to
prefer the policy favoring trial or other disposition of an action on
the merits . . . .” (Lead opn., ante, at p. 28.) If anything, it is my
colleagues’ effort to cabin the discretion of trial courts that runs
contrary to the policy favoring decision on the merits and
“liberality” in the application of the section 583.340,
subdivision (c) tolling rule. Here, we should be mindful of the
importance of ruling narrowly to avoid potentially unintended
consequences. By artificially confining the diligence inquiry to
the putative tolling period, our holding on this point undermines
the authority of trial courts to excuse tolling claimants who can
21
demonstrate diligence for most of the history of a case, but who
are charged with some type of delinquency on the eve of the
mandatory time-to-trial deadline, as in Moran, and as in this case
as well.
I set that concern aside for now, however, since it has to do
with the implications of our holding in other cases down the line.
To resolve the diligence issue that divides us on the facts
presented here, it does not advance the ball either way to rely on
the policy favoring decision on the merits. We are not faced with
a choice between two different, outcome-determinative
approaches to analyzing impossibility, impracticability, or futility
in this case. Whether the scope of our diligence inquiry is
confined to the tolling period, as my colleagues believe it is, or
extends to the case as a whole, as I believe it does, the diligence
component of the tolling analysis plays a neutral role on this
record.
The best indication of that is our shared conclusion—the
trial court’s diligence analysis was erroneous. What divides us is
why the trial court’s diligence analysis was faulty. I think the
court erred because, as in State of California and Brown, it
evaluated diligence only in the post-tolling period rather than in
all phases of the proceedings. Ironically, the lead opinion makes
the same error the trial court did, albeit with a different spin:
Focusing on a different slice of time, my colleagues hold that the
trial court erred by failing to limit its diligence assessment to the
claimed tolling period. On this score, the lead opinion is just as
mistaken as the trial court was.
22
B.
The Law Revision Commission stated that, prior to 1984,
“The [mandatory time-to-trial] statutes [did] not accurately state
the exceptions, excuses, and existence of court discretion.”
(17 Cal. Law Revision Com. Rep., supra, at p. 910.) What
occurred in the 1984 revision process is that, by codifying
Christin, the Legislature created a discretion-based standard in
section 583.340, subdivision (c), effectively adopting a rule of
“equitable tolling” by statute. 7 The language of section 583.340
states that “[i]n computing the time within which an action must
be brought to trial, there shall be excluded the time during which
any of the following conditions existed ” (§ 583.340, italics added)
which is followed by subdivisions (a), (b) and (c). It is the court
that is doing the calculating under this statute, not the litigants.
And the statutory language specifying how that is done cannot be
properly understood apart from the case law it codifies. Viewed
in this way, the discretion residing in section 583.340,
subdivision (c) is in the court’s ability to evaluate whether
“conditions exist[]” that warrant tolling. (§ 583.340.) It is too
simplistic to point to the word “shall” and stop there.
7 Our Supreme Court’s seminal equitable tolling opinion in
Bollinger v. National Fire Ins. Co (1944) 25 Cal.2d 399(Traynor, J.) relies on Christin. (Id. at p. 408 [announcing a
judicially created procedural rule that operates in equivalent
fashion to statutes designed to save “an action . . . brought in
good time and diligently pursued, but defeated by some
technicality unrelated to the merits”]; see id. at p. 410 [citing
Christin].)
23
Echoing and amplifying a point made in the lead opinion,
Justice Goldman’s concurrence suggests that my reading of
583.340, subdivision (c) puts a plaintiff in the position of not
knowing whether a period she believes made it impracticable to
move a case toward trial will be counted in the mandatory time-
to-trial period until a court declares whether the period was
tolled. It appears to me that, just as the lead opinion does, he
mistakes the certainty the Law Revision Commission had in
mind when it clarified the tolling rule courts should apply under
section 583.340, subdivision (c) for the kind of certainty parties
enjoy under sections 583.340, subdivisions (a) and (b), where the
triggering events for tolling (whether the court had jurisdiction,
whether the court placed a stay on the whole case) are objectively
determinable, and there is no discretion involved.
Bear in mind, as I have explained, the court is doing the
calculating, not the litigants. It makes no sense that there
should be “certainty and ex ante clarity” for litigants (lead opn.,
ante, at p. 29) in the application of a tolling rule of this kind.
Litigants can never expect surefire predictability when they are
subject to a discretionary decisionmaking regime. Just as with
judge-made equitable tolling in the context of statutes of
limitation, the mandatory deadline is the mandatory deadline,
and the tolling exception is sometimes available to guard against
harsh results. But the declared policy of the law favors plaintiffs
who make consistent, demonstrable efforts to move their cases
forward in all stages of a case’s history. So when and if it is
necessary for a plaintiff to make a tolling argument in the face of
24
a motion to dismiss on five-year grounds, diligent plaintiffs are
rewarded in the tolling calculus for their efforts, and by the same
token they may suffer if they have let their cases languish. There
are no advance guarantees in this scheme for a litigant who must
resort to tolling for impracticability.
Justice Goldman posits what he apparently sees as a
dilemma for a plaintiff who, according to his hypothetical, is left
in a quandary about whether tolling might apply to a period in
which she took time out from active litigation to pursue a
settlement midway through the mandatory time-to-trial period
and when the settlement effort fails, cannot predict with any
certainty when the mandatory trial deadline will run. About this
hypothetical, I would point out a couple of things, beginning with
the fact that pursuing settlement is an expected task in the
everyday handling of litigation, no different than ordinary motion
practice or discovery, neither of which garners any special favor
in the analysis of entitlement to tolling under section 583.340,
subdivision (c). Hiatus periods to engage in settlement
discussions are normal, and the failure of those talks is normal as
well. Trial preparation may have to go on the backburner during
these periods, but a decision to abandon it entirely is generally
not an excuse that warrants tolling.
Simple solutions to Justice Goldman’s dilemma are
available to litigants in this position in any event, which he
appears to acknowledge but finds unsatisfactory: If there is any
question about whether a period of time was tolled, the plaintiff
should bring the question to the trial court’s attention at the
25
earliest opportunity at a status conference or other case
management proceeding, and in addition, as the mandatory time-
to-trial clock nears its end, bring a motion for an accelerated trial
date. 8 By being proactive in these ways, plaintiffs can enlist the
court’s assistance in clarifying how much allowed pretrial time
remains should there be some dispute between the parties about
it (simply by raising the issue plaintiffs may find out there is no
dispute) and ultimately in meeting the mandatory time-to-trial
deadline. Continuing diligence is not a high bar to meet. Just by
doing these kinds of things—successful or not—plaintiffs can
avoid falling into the category of those who show an “appalling
8 See Wilshire Bundy Corp. v. Auerbach, supra,
228 Cal.App.3d at p. 1289 (“An available remedy is at hand to
correct calendaring or other errors made by the court or its clerk
in the scheduling of a case. Upon timely discovery of the
problem, a motion to specially set may be made and the court is
bound to grant it. [Citations.] In short, this is a matter that is
within the reasonable control of the diligent plaintiff and is thus
avoidable.”) Wilshire involved a court-created time crunch, but
the same principle applies whenever a plaintiff ’s progress toward
trial has been impeded due to any circumstances not of her own
making. (See Warner Bros. Entertainment Inc. v. Superior Court
(2018) 29 Cal.App.5th 243, 266 [“The factor of reasonable
diligence applies both when a trial court is considering whether
to toll the five-year statute under section 583.340[, subdivision]
(c) (the impossibility, impracticality or futility exception), and
when the court is considering a motion for trial preference”].)
Nearly identical discretionary considerations apply in both
contexts. (Ibid. [“Likewise, while a decision on trial preference
rests in the sound discretion of the trial court, the court must
consider, among other factors, ‘dilatory conduct by plaintiff,’ so
that a plaintiff must ‘make[] some showing of excusable delay’ ”].)
26
lack of diligence” and can “offer[] no justification for the delay.”
(Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at p. 347.)
Sure, as Justice Goldman rightly suggests, there will be
inevitable challenges—at any given time, more or different
discovery may be needed to prepare for trial, and sometimes
strategic trade-offs must be made as the clock ticks away—but
that is the reality of civil litigation, and the solution is even more
basic than taking the steps I have described above: Think ahead,
have a back-up plan (or two, or three), and do everything
reasonably possible to keep pushing ahead toward trial. If a
plaintiff monitors the mandatory time-to-trial clock on an
ongoing basis while operating in this fashion, and ultimately
faces a five-year mandatory dismissal motion, the diligence
calculus will tip in her favor.
These things, of course, are matters of litigation practice,
but we should be interpreting procedural statutes in a manner
that sets expectations for good practice. Whether the bar takes
the hint or not, the important legal point here is that the tolling
calculation rule set forth in section 583.340, subdivision (c) is for
the court to apply once a five-year mandatory dismissal motion
has been made. It is not a rule of convenience for litigants,
available to reassure them that, if such a motion is ever made,
they can predict with certainty that the motion will be defeated
based on an impracticability tolling argument. Success in
defending such a motion on that basis must be earned. In the
meantime, the imperfect knowledge litigants must accept in
trying to assess whether a particular pretrial delay might
27
someday be tolled—if resort must be had to a tolling argument—
is just part of the built-in incentive system that drives cases
forward. It is a feature, not a bug.
C.
I readily acknowledge that, simple as the duty of
continuing diligence is to state, sometimes it is fiendishly
nuanced for courts to apply. Under the established mode of
analyzing “causal connection” (Sierra Nevada Memorial-Miners
Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 473),
plus “reasonable diligence” (Tamburina v. Combined Ins. Co. of
America, supra, 147 Cal.App.4th at p. 336), to tease out
procedural delays that are truly avoidable from those that are
not, there is often going to be overlap between causation and
diligence. That is because these two concepts are interrelated.
But they are not identical—or “indivisible,” as the lead opinion
phrases it (lead opn., ante, at p. 31) in a turn of phrase that can
be read to merge the traditional diligence inquiry out of
existence. 9
9When I say the concepts of “causal connection” and
“reasonable diligence” are interrelated, I mean there will be
circumstances where the same facts bear on each of the two legal
components of the analysis, not that these twin considerations
are somehow at war with one another or so intertwined that they
are confusing or impossible to understand. Although my
colleagues appear to suggest otherwise, any trial judge charged
with the task of applying a discretionary test for evaluating an
issue where multiple considerations must be weighed and
balanced in order to achieve substantial justice would readily
know what I mean. This kind of multifactorial decisionmaking
process—which is of course characteristic of an equity-based
28
I do not think we should be demoting a test our Supreme
Court has described repeatedly as the “critical factor” in
analyzing impossibility, impracticability, or futility in this way.
But even if we had the authority to rewrite the law and declare
that causation and diligence should no longer be described as
“independent,” I fail to see why there is any need to do so, except
perhaps as an exercise in intellectual fastidiousness. As I see
things, the court in De Santiago v. D & G Plumbing, Inc. (2007)
155 Cal.App.4th 365, was correct to say that “[w]hether
reasonable diligence is considered in the context of determining
the element of causal connection (Sanchez) or as an independent
factor (Tamburina) it is a critical factor to be considered in
determining whether the impracticability exception applies.” (Id.
at p. 375.)
I am also reluctant to turn this exceedingly fine point of
doctrine into a full-blown conflict in the case law. It is
commonplace to say that we are not bound by the decisions of our
sister courts, but I believe we should depart from them only for
good reason. As a Sixth District panel once put it, “We
acknowledge we are not bound by an opinion of another District
Court of Appeal, however persuasive it might be.” (Greyhound
Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480,
standard—can be difficult and often involves lots of subtleties.
There is nothing bad or unwise about that from the standpoint of
judicial administrability. Trial judges do it all the time. So do
we, but without the difficult task of grappling with contested
evidence and finding facts.
29
485.) But “[w]e respect stare decisis, . . . which serves the
important goals of stability in the law and predictability of
decision. Thus, we ordinarily follow the decisions of other
districts without good reason to disagree.” (Ibid.)
I respectfully suggest we have no good reason to depart
from Tamburina, which fits comfortably within a large body of
case law interpreting and applying section 583.340,
subdivision (c) over the last four decades, with roots going back
much further than that. If there is something problematic in the
case law we are called upon to apply here, it is the passing
observation in De Santiago that Tamburina is in conflict with
Chin v. Meier (1991) 235 Cal.App.3d 1472. The lead opinion
borrows that observation and makes it a central feature of its
analysis. I think this is a phantom conflict.
In my view, it is possible to say that, yes, under Chin, a
court asked to apply section 583.340, subdivision (c) must exclude
a period of impracticability from the computation of the statutory
period to take a case to trial even if there is ample time to try the
case after the tolled period, but at the same time that, under
Tamburina, as part of its discretionary factual determination
whether “conditions exist[]” (§ 583.340, subd. (c)) to justify a
finding of genuine impracticability, the court may consider
whether there was (i) a causal connection between the claimed
delay and the missed trial deadline and (ii) diligent prosecution
throughout the entire history of the case. At the last step of this
analysis, both of these Tamburina factors may bear on whether
delay stemming from the claimed tolling period was avoidable.
30
III.
In the final analysis, the disagreement I have with my
colleagues is narrow, and it boils down to this: I would prefer to
see us avoid building on what I view as a false conflict in the
section 583.340, subdivision (c) precedent because, in doing so, we
risk creating unnecessary confusion in the law. We may also be
creating a need for the California Supreme Court to devote time
and resources to resolving a conflict that need never have been
elevated from stray dicta in one Court of Appeal case to
established law.
STREETER, Acting P. J.
31
GOLDMAN, J., Concurring.
I join Justice Brown’s opinion, but write to offer some
additional explanation in light of Justice Streeter’s concurrence.
I. The Problem
As Justice Streeter correctly suggests, the concern
underlying the discussion of diligence in the lead opinion is that
the phrase “at all stages of the proceedings” (Tamburina v.
Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336)
could be construed to mean that a plaintiff who has established
circumstances of “impossibility, impracticability, or futility”
under Code of Civil Procedure 1 section 583.340, subdivision (c),
may nonetheless lose the ability to toll the five-year statute upon
a court’s determination that the plaintiff failed to exercise a
particular level of diligence after the period of claimed tolling
ended. Justice Streeter states that it “may seem neatly logical to
say that a plaintiff who is entitled to tolling under
section 583.340, subdivision (c), should not be stripped of that
right for a post-tolling failure of diligence,” but contends that this
framing “begs the question” because a plaintiff who has not been
diligent throughout the entire case is not entitled to claim tolling
under section 583.340(c) in the first place; in other words, you
can’t lose what you never had. (Conc. opn. of Streeter, Acting
P. J., ante, at p. 13.)
On one level, the two formulations have the same practical
consequence; whether a later deficit of diligence means the
1All subsequent undesignated statutory citations are to the
Code of Civil Procedure.
1
plaintiff forfeits the tolling or lacks the ability to claim it, the
result is the same. Nonetheless, there is at least one difference
between them. Justice Streeter’s framing means that it would be
impossible, or at least premature, to determine at the end of the
period of claimed tolling whether any time has been tolled. To
ground the discussion, consider a lawsuit filed on January 1,
2000; the plaintiff is required to bring the case to trial before
January 1, 2005. Suppose that, on July 1, 2003—three and half
years into the period—the parties enter into a putative
conditional settlement, rendering it impracticable or futile to
bring the case to trial. On June 30, 2004, after lengthy but
unsuccessful efforts to satisfy the conditions of the settlement,
the defendant notifies the plaintiff that it is abandoning further
efforts and disputes that there was ever a binding agreement. 2
The next day, July 1, 2004, the parties appear for a case
management conference. The parties tell the court what has
happened over the past year, submit documentation, and set
forth their respective positions. According to the plaintiff, the
five-year period has been tolled for twelve months, so it has until
January 1, 2006, to bring the case to trial. The defendant takes
the opposite view: There has been no tolling, so the five-year
period expires in six months—January 1, 2005.
2 My intent here is to paraphrase the situation in this case.
Justice Streeter joins the lead opinion insofar as it concludes that
what happened here constituted a circumstance of
impracticability, notwithstanding the doubt he expresses about
whether tolling would be appropriate in this hypothetical.
2
In contrast to the approach taken by Justice Streeter’s
concurrence, I think the trial court already has available to it all
the information it needs to determine when the five-year period
expires. It would be markedly unhelpful for the court to declare
the date unknowable because it depends on whether the plaintiff
exercises reasonable diligence in the future. And the difference
matters. Eighteen months out, the plaintiff can, for example,
seek out additional fact and expert witnesses, and explore
different theories through discovery—things that take time and
may or may not pan out. Six months from trial, by contrast, the
plaintiff may have to narrow rather than broaden its approach,
abandoning unexplored or underexplored avenues and focusing
on readying the case for trial based on what it already has or
thinks it can get in the limited time left. In my view, if a
circumstance of impossibility, impracticability, or futility existed
between July 1, 2003 and June 30, 2004, then on July 1, 2004,
the plaintiff was entitled to proceed as if it had eighteen months
to bring the case to trial, not six. To conclude otherwise is to
ignore the change that the California Law Revision Commission
(the Law Revision Commission, or the Commission), and by
extension the Legislature, intended to make with the enactment
of the current statutory scheme in 1984.
I therefore disagree with Justice Streeter insofar as he
would require a plaintiff in this situation to bring a motion for an
accelerated trial date. As I discuss below, that was the position
of the courts in State of California v. Superior Court (1979)
98 Cal.App.3d 643 (State of California), and Brown v. Superior
3
Court (1976) 62 Cal.App.3d 197 (Brown), which the Law Revision
Commission intended to abrogate. Because they held that tolling
was unavailable if the plaintiff did not seek a trial date as if no
time had been tolled, they effectively prevented plaintiffs from
taking advantage of tolling. That approach denies plaintiffs a
right I think the Legislature intended to protect when it enacted
the current statutory scheme. While Justice Streeter sees no
harm in a rule that requires plaintiffs to “do everything
reasonably possible to keep pushing ahead toward trial,” (conc.
opn. of Streeter, Acting P. J., ante, at p. 26–27) that formulation
sidesteps the real issue: To “keep pushing ahead toward trial”
entails different things depending on whether one is eighteen
months from trial or six. I cannot agree that no harm is done by
requiring a plaintiff to litigate the case as if no tolling is
available.
Still, one word of clarification is warranted. While we are
assuming in this hypothetical the existence of a fortuitously
timed case management conference in which the parties can
present their disagreement to the court, a prudent and diligent
plaintiff should in any event ask for the defendant’s position as to
whether there was any tolling (or about its willingness to
stipulate to a different date), and if unsatisfied, seek guidance
from the court well in advance of the original deadline of
January 1, 2005. (Cf. Tanguilig v. Neiman Marcus Group, Inc.
(2018) 22 Cal.App.5th 313, 333, fn. 11 [“it seems to us there is a
legitimate question here whether, in November and December
2012, [plaintiff] should have taken more proactive steps to hedge
4
against the risk that her legal position on tolling might be
wrong”].) Furthermore, if the plaintiff waited until, say,
December 15, 2004, to raise the issue and the court determined
there was no tolling because the plaintiff’s belief that there was
any kind of settlement was ill-founded, the court would properly
consider the plaintiff’s diligence or lack thereof (including its
decision to wait until December 15th) in deciding whether to
grant what we can assume would be a forthcoming request to set
the case for trial within the next two weeks. (See, e.g., Salas v.
Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 349; Minkin v.
Levander (1986) 186 Cal.App.3d 64, 72; Beswick v. Palo Verde
Hospital Assn. (1961) 188 Cal.App.2d 254, 260.) But the purpose
of this diligence inquiry is to inform the court’s decision on a
motion to specially set the case for trial—which the caselaw
treats as equivalent to the standard for discretionary dismissal
for failure to prosecute—not to decide whether the five-year term
was tolled in the first place. It is the latter issue that was
addressed by the Law Revision Commission.
II. The Law Revision Commission
The Law Revision Commission comment to subdivision (c)
of section 583.340 states that “the time within which an action
must be brought to trial is tolled for the period of the excuse,
regardless whether a reasonable time remained at the end of the
period of the excuse to bring the action to trial,” a new provision
that it described as “overrul[ing] cases such as State of California
v. Superior Court [(1979) 98 Cal.App.3d 643], and Brown v.
Superior Court [(1976) 62 Cal.App.3d 197].” (Revised
5
Recommendation Relating to Dismissal for Lack of Prosecution
(June 1983) 17 Cal. Law Revision Com. Rep. (1984) p. 936.)
Elsewhere in its report, the Commission explained that the new
rule “is consistent with the treatment given other statutory
excuses” and “increases certainty and minimizes the need for a
judicial hearing to ascertain whether or not the statutory period
has run.” (Id. at p. 919.)
Under Justice Streeter’s view, even in principle plaintiffs
cannot know by the end of the period of impossibility,
impracticability, or futility whether the statute has been tolled.
This result is contrary to the Commission’s intent to increase
certainty and to ensure that tolling applies regardless of how
much time remains. Moreover, because Justice Streeter agrees
that “the focal point of a trial court’s inquiry under
section 583.340, subdivision (c), will be on the period of claimed
delay” (conc. opn. of Streeter, Acting P. J., ante, at p. 10), and
that the trial court’s inquiry in this case “should have been on
events that took place during the claimed tolling period” (id. at
p. 2), he defends an approach that he believes generally should
not be employed, without explaining why or when it should be.
This approach thereby adds yet another layer of uncertainty to
the uncertainty already inherent in saying that tolling under
subdivision (c) of section 583.340 depends not only on an
evaluation of whether it was impossible, impracticable, or futile
to bring the case to trial during the period at issue, but also on an
evaluation of the plaintiff’s level of diligence after that period
ended.
6
Justice Streeter faults the lead opinion for “read[ing] State
of California and Brown as diligence cases” (conc. opn. of
Streeter, Acting P. J., ante, at p. 16), but that is how the courts
themselves analyzed the problem, albeit by construing “diligence”
to mean diligent efforts to set the case for trial before the
expiration of the original five-year period (i.e., without any
tolling). (See State of California, supra, 98 Cal.App.3d at pp. 647,
649 [rejecting plaintiffs’ contention that “they proceeded with due
diligence and all expediency within their power to bring the case
to trial at the earliest possible time,” because they “made no
special effort to have this matter set for trial” even though six
and a half months remained]; Brown, supra, 62 Cal.App.3d at
p. 199 [rejecting plaintiff’s contention that she made “all
reasonable attempts” to bring the case to trial after her release
from prison, when two years remained, because the record was
“barren of any attempt to obtain an early setting date or advance
or accelerate the cause for trial before the expiration of the five-
year period”]; Youngblood v. Terra (1970) 10 Cal.App.3d 533, 538
(Youngblood) [referring to plaintiff’s “dilatoriness” in requesting
that the court reset the case for trial]; Sherberne & Associates v.
Vector Mfg. Co. (1968) 263 Cal.App.2d 68, 73 [“We are of the
opinion that a further exception to the ‘mandatory’ requirement
of section 583 should not be made because of a period of inactivity
that is excusable so long before the end of the five years that time
enough is left to overcome the effect of its imposition”]; O’Donnell
v. City & County of S. F. (1956) 147 Cal.App.2d 63, 66 [concluding
that “the failure to obtain a trial date within [the time remaining
7
was] due to the lack of diligence of the attorneys involved”].) 3
Whether a “reasonable time remained at the end of the period of
the excuse” was defined by whether a diligent plaintiff would
have been able to request a trial date before the end of the
original statutory period.
Some cases after 1984 continued to follow this approach,
but there is no indication that they considered an argument that
it had been repudiated by the Legislature’s enactment of the Law
Revision Commission’s proposed legislation. Consider Tejada v.
Blas (1987) 196 Cal.App.3d 1335 (Tejada). Declaring that a
plaintiff “must be able to demonstrate diligence in pursuit of his
or her duty to expedite the resolution of the case at all stages of
the proceedings,” it held that the plaintiff could not claim earlier
tolling for impossibility or impracticability because she failed to
move the court to set the case for trial before the original five-
year term expired. (Id. at p. 1340.) The diligence demanded of
her was thus that she seek a trial as if no time had been excluded
from the computation, thereby denying herself the benefit of the
tolling she sought. It is clear that Tejada was following State of
California’s approach; Tejada cited it for the proposition that
“[w]here a plaintiff possesses the means to bring a matter to trial
before the expiration of the five-year period by filing a motion to
specially set the matter for trial, plaintiff’s failure to bring such
3 Justice Streeter suggests that Weeks v. Roberts (1968)
68 Cal.2d 802 also belongs in this category, but the issue there
was a trial court’s discretion to deny a motion to specially set a
case for trial, not the availability of tolling for an earlier period of
impossibility, impracticability, or futility.
8
motion will preclude a later claim of impossibility or
impracticability.” (Ibid; see also, e.g., Lauriton v. Carnation Co.
(1989) 215 Cal.App.3d 161, 164 [citing Tejada for the same
proposition and observing that plaintiff failed to ask the court to
set the case for trial within the three months that remained after
he was discharged from bankruptcy].)
Justice Streeter apparently does not accept that post-1984
cases like Tejada and Lauriton employed the approach that the
Commission repudiated, but even putting aside the express
reliance on State of California, I do not see how they can be
meaningfully distinguished. They all have the same
fundamental problem: They effectively deny tolling by requiring
plaintiffs who seek tolling to expend every reasonable effort to
obtain a trial date as if no time had been tolled. Under this
approach, the plaintiff in our hypothetical is entitled to a trial
date eighteen months away only on condition that it ask the court
to set trial for a date within the next six months, thereby
forfeiting the additional year. Such an approach is inconsistent
with the Commission’s explanation in its section 583.340,
subdivision (c) comment that the time is to be tolled “regardless
whether a reasonable time remain[s] at the end of the period of
the excuse to bring the action to trial.” (Cal. Law Revision Com.
com. to § 583.340.)
Justice Streeter characterizes the continued reliance on
State of California as a mere citation problem, suggesting that
Tejada could perhaps have made a different “judgment call”
about whether to include a notation that the case had been
9
“superseded by statute on other grounds.” (Conc. opn. of
Streeter, Acting P. J., ante, at p. 19, fn. 6.) But State of
California was not superseded “on other grounds”; it was
superseded on the very ground on which Tejada relied—namely,
that “[w]here a plaintiff possesses the means to bring a matter to
trial before the expiration of the five-year period by filing a
motion to specially set the matter for trial, plaintiff’s failure to
bring such motion will preclude a later claim of impossibility or
impracticability.” (Tejada, supra, 196 Cal.App.3d at p. 1340.) I
don’t disagree with Justice Streeter’s assessment that the
Commission believed it problematic that State of California and
Brown “arbitrarily limited the availability of tolling for
impracticability to a late-in-the-case scenario,” but the cases that
continued to rely on them did the same thing. Justice Streeter
observes that the Commission did not take issue with the
diligence analysis that State of California and Brown applied, but
only with the “rule” it attributed to them that no tolling is
available when there remains a reasonable amount of time to
bring the case to trial. The way those courts arrived at this rule,
however, was by applying a diligence analysis that denied tolling
if plaintiffs could have asked the court to set trial for a date that
was within the original five-year period and failed to do so. Cases
like Tejada and Lauriton that applied the same diligence analysis
imposed the same rule, and in the same way, that State of
California and Brown did.
Justice Streeter argues that the Commission saw the
problem with the rule to lie in the difficulty of figuring out what
10
was a “reasonable time” remaining to bring the case to trial (e.g.,
his contention that courts’ judgments were “ad hoc”), rather than
in the fact that it denied tolling to plaintiffs notwithstanding the
existence of a condition of impossibility, impracticability, or
futility earlier in the case. I think this is a misdiagnosis of the
Commission’s concern. First, there is nothing in the text of the
Commission’s report to support it, and if that is what the
Commission had in mind, it could easily have said so. Second, on
that score neither State of California nor Brown was particularly
close: There were six and a half months remaining in the five-
year period in State of California, and two years remaining in
Brown. (State of California, supra, 98 Cal.App.3d at p. 649;
Brown, supra, 62 Cal.App.3d at p. 199.) Neither case telegraphed
a special problem with how to determine whether the remaining
time was “reasonable”; each one merely faulted the plaintiff for
failing to ask the trial court for a trial date within the time
remaining. Third, the Commission rejected the very idea behind
the rule, i.e., that tolling should be unavailable whenever the
plaintiff still had a reasonable amount of time to bring the case to
trial. That categorical rejection would be an overreaction to a
concern that courts were not adequately explaining or evaluating
what constitutes a “reasonable” amount of time, and if that were
the only issue, there would have been ways for the Commission to
refine or concretize the rule. 4 And fourth, it is not inherently
4 As Justice Streeter points out, in another section of its
report the Commission addressed another problem: “when,
within the last months before the five-year period is about to
11
more difficult or uncertain for a trial court to determine whether
the plaintiff still had a reasonable amount of time to bring the
case to trial than it is to determine whether the plaintiff
exercised reasonable diligence throughout the litigation. For that
reason, it is unlikely the Commission would have viewed the
latter inquiry as the solution if it believed the problem with the
former inquiry was that it was unworkably uncertain.
Justice Streeter also argues that the Commission rejected
Brown and State of California because they were “one-
dimensional,” in contrast to the “all of the circumstances of the
individual case” test employed in Moran v. Superior Court (1983)
35 Cal.3d 229. (Conc. opn. of Streeter, Acting P. J., ante, at
p. 18.) But often these cases, including State of California itself,
claimed to be following the same rule, i.e., that it is necessary to
consider “all the circumstances” of the case. (See, e.g., State of
California, supra, 98 Cal.App.3d at p. 650; Youngblood, supra,
10 Cal.App.3d at p. 538; Tejada, supra, 196 Cal.App.3d at
pp. 1339–1340.) If it was not obvious that there was a
circumstance of impossibility, impracticability, or futility, these
expire, an event occurs that suspends the running of the statute,”
leaving the plaintiff with “only a short time to bring the action to
trial,” which in many cases “is an unrealistic or impossible
deadline to meet.” (17 Cal. Law Revision Com. Rep., supra, at
p. 913.) The Commission addressed this problem by amending
the law (through the addition of section 583.350) “to allow six
months to bring the action to trial where there has been
suspension of the five-year statute for any reason within the last
six months of the five-year period.” (17 Cal. Law Revision Com.
Rep., supra, at p. 913.) The time remaining in State of California
was greater than the six months provided for by this section.
12
courts did consider diligence both in the post-tolling period and
during the period of claimed excuse. (See Brown, supra,
62 Cal.App.3d at p. 199 [plaintiff’s incarceration did not prevent
her attorney from prosecuting the case during that time];
Youngblood, at p. 537 [noting that, while the court ordered the
case off calendar on its own motion, it did so after the plaintiff
requested a continuance]; Tejada, supra, 196 Cal.App.3d at
pp. 1340–1341 [plaintiff could have addressed defendant’s
uncooperative conduct earlier in the case because there is an
“arsenal of weapons” to ensure a defendant does not benefit from
dilatory tactics]; Lauriton v. Carnation Co, supra, 215 Cal.App.3d
at p. 165 [plaintiff could have prosecuted his case while in
bankruptcy].) If we are to consider the Commission’s proposal in
relation to the principle that it is necessary to consider “all the
circumstances of the individual case,” it is more accurate to say
that the Commission directed courts to exclude from their
consideration of those circumstances whether, with the exercise
of reasonable diligence, the plaintiff could have brought the
matter to trial within the original statutory period. Cases like
State of California and Brown relied on a factor that the
Commission believed should be irrelevant. 5
5 The court in Moran had no occasion to consider whether
the plaintiff had acted diligently after the period of claimed
excuse, because the problem arose at and through the end of the
statutory period. There was no dispute that the time during
which the parties participated in a court-ordered arbitration
should be excluded, and that 41 days remained once the time
began to run again. (Moran v. Superior Court, supra, 35 Cal.3d
13Finally, Justice Streeter invites us to read the
Commission’s reference to “certainty” when it recommended the
abrogation of State of California and Brown to mean simply its
“declared objective to achieve clarifying uniformity in the case
law.” (Conc. opn. of Streeter, Acting P. J., ante, at p. 20.) I read
it differently. Again, the Commission explained that under the
at p. 234 & fn. 5.) The question was whether the remaining 41-
day period, as well as additional time beyond it, should be
excluded because the clerk failed to reset the case for trial. In
answering that question, the court noted that the plaintiff
“immediately” contacted the clerk’s office to request “that the
matter be promptly reset for trial in order to meet the
approaching five-year deadline” and made follow-up calls during
the same week; the five-year period (as tolled by the arbitration)
expired while the plaintiff was waiting for a response. (Id. at
p. 239.) On the other hand, the court acknowledged that, after
placing calls to the clerk, plaintiff’s counsel did nothing for
almost four months, moving to have the case specially set for trial
only after the defendants had moved to dismiss for failure to
comply with the five-year statute. (Id. at p. 236.) But Moran
reversed the court of appeal, which had ordered the action
dismissed (see ibid.), because the high court concluded that the
plaintiff’s “inactivity in the relatively short period following the
request for trial de novo” was counterbalanced by the fact that
she had “vigorously prosecuted her case over a number of years”
before that. (Id. at p. 240.) And it pointed out that by taking
discovery, for example, the plaintiff had satisfied “one of the
goals” of the five-year statute by preserving evidence before it
was destroyed, lost, or forgotten. (Ibid.) The court saw diligence
as a means, not an end: “Neither the courts nor litigants have
any legitimate interest in preventing a resolution of the lawsuit
on the merits if, through plaintiff’s exercise of reasonable
diligence, the goals of section 538[, subdivision] (b) have been
met.” (Id. at p. 238.) I therefore think it would misread the
court’s point to construe the opinion as supporting a position that
tolling should be denied simply because at some point in the case
the plaintiff did not show diligence.
14
proposed change, “the statute tolls regardless when during the
statutory period the excuse occurs,” which “increases certainty
and minimizes the need for a judicial hearing to ascertain
whether or not the statutory period has run.” (17 Cal. Law
Revision Com. Rep., supra, at p. 919.) This language indicates
that the Commission sought to increase certainty, at least in
part, for litigants by enabling them to calculate when the
mandatory time for bringing the case to trial expires; otherwise,
the reference to “minimiz[ing] the need for a judicial hearing”
makes no sense. Justice Streeter may be correct that we cannot
expect “ ‘certainty and ex ante clarity’ ” for litigants who are
“subject to a discretionary decisionmaking regime” (conc. opn. of
Streeter, Acting P. J., ante, at p. 24), but that observation
counsels against a conclusion that the Commission was proposing
a “clarification” of the law that would mean only the court, and
only at the end, has the ability to determine the date by which
the action must be (or must have been) brought to trial.
III. The Statutory Language
It is not only the Law Revision Commission’s explanation of
section 583.340, but also the language of the statute itself, that
supports a conclusion that plaintiffs and courts should be able to
know by the end of the period of excuse whether any time has
been tolled. As Justice Streeter implicitly recognizes, one would
search section 583.340 in vain for any words expressing the idea
that tolling under subdivision (c), unlike subdivisions (a) and (b),
can be lost or rendered unavailable if a court finds that the
plaintiff did not exercise diligence at some point after the period
15
of tolling ended. The statute provides straightforwardly that
“there shall be excluded” from the computation the time during
which any of the “conditions” described in subdivisions (a), (b),
and (c) existed. To be sure, subdivision (c) involves a more
flexible inquiry than subdivisions (a) or (b), and because of the
variety of factors the court may weigh, a finding that there was a
condition of impossibility, impracticality, or futility requires an
exercise of the court’s discretion. (See, e.g., Brown & Bryant, Inc.
v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247,
251–252 [“whether prosecution of an action was impossible,
impracticable, or futile is a matter within the trial court’s
discretion and will not be disturbed on appeal unless an abuse of
discretion is shown”].) But upon a determination that such a
condition exists, there is no ambiguity in the statute about
whether that time should be excluded. 6 The evident purpose of
section 583.340 is to ensure that plaintiffs do not face mandatory
dismissal under section 583.310 before they have had five years
in which they could bring the case to trial. And apart from the
treatment of subdivision (c) that Justice Streeter proposes, a
6 Recognizing the problem posed by the phrase “shall be
excluded,” Justice Streeter points to the court’s “ability to
evaluate whether ‘conditions exist[ ] ’ that warrant tolling.” But
the word “condition” refers to whether there was a time during
which “[b]ringing the action to trial, for any other reason, was
impossible, impracticable, or futile.” (§ 583.340, subd. (c).) I
agree that the trial court has the ability to decide whether such a
condition existed, but the word “condition” cannot reasonably be
construed as an additional free-floating grant of discretion to
reject tolling notwithstanding the court’s determination that a
condition of impossibility, impracticability, or futility existed.
16
plaintiff never does face mandatory dismissal based on a finding
that diligence was lacking at some other point during the five-
year period.
Of course, a plaintiff who fails to exercise diligence,
whether or not after a period of excuse, may still face dismissal
under the statute giving the court discretion to dismiss an action
based on a delay in prosecution. (§ 583.410, subd. (a) [“The court
may in its discretion dismiss an action for delay in prosecution
pursuant to this article on its own motion or on motion of the
defendant if to do so appears to the court appropriate under the
circumstances of the case”]; see Jensen v. Western Pac. R. Co.
(1961) 189 Cal.App.2d 593, 597 [while plaintiffs have a “right”
under the mandatory dismissal statute to wait five years before
bringing the case to trial, the court can dismiss for want of
prosecution during that period under the discretionary dismissal
statute].) But the existence of separate statutory provisions is a
reason to preserve the distinction between discretionary and
mandatory dismissal. Justice Streeter’s approach erases the line
between them by advocating a rule that gives the court discretion
to dismiss under the mandatory dismissal statute
notwithstanding a conclusion that there existed an extended
condition of impossibility, impracticability, or futility that
section 583.340 directs “shall be excluded” from the computation
of time.
Reading the text of section 583.340 together with the Law
Revision Commission’s explanation of it, I cannot conclude that
the Legislature intended courts to apply a rule that has as its
17
consequence that plaintiffs cannot know whether a period of
impossibility, impracticability, or futility has tolled the statute,
and that requires them to act as if no time has been tolled. On
the contrary, the intent is to give plaintiffs the benefit of tolling
when there are circumstances of impossibility, impracticability,
or futility. (See New West Federal Savings & Loan Assn. v.
Superior Court (1990) 223 Cal.App.3d 1145, 1155 [“so long as the
court may conclude that there was a period of impossibility,
impracticability or futility, over which plaintiff had no control,
the court is required to toll that period even if there is ample time
after said period of impracticability within which to go to trial”].)
In 1983, the Commission complained that “[t]he state of the law
is generally unsatisfactory, requiring frequent appellate decisions
for clarification,” observing that there have been “hundreds of
cases . . . interpreting, clarifying, and rewriting the statutes.”
(17 Cal. Law Revision Com. Rep., supra, at p. 910 & fn. 12.) I am
not sure the volume of decisions has declined, but because Justice
Streeter’s approach would displace the Commission’s plain
statutory language with greater uncertainty about whether and
when tolling is available, I think it would be a step in the wrong
direction.
GOLDMAN, J.
18
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hon. Ethan P. Schulman
Counsel: Welty, Weaver & Currie, Jack W. Weaver;
Haroche Law, Bob Haroche for Plaintiffs and
Appellants.
Vogl Meredith Burke, Michael S. Burke, Mark
D. Fenske for Defendants and Respondents
Kwok Hung Szeto, Nikki So-Kuen Szeto, and
Patrick Szeto.
JRA Law Partners, Robert O. Divelbiss for
Defendants and Respondents ARP-I, LLC, and
ARP-II, LLC.
Seto et al. v. Szeto et al. (A163846, A164849, A164925)