Cannon v. City of Novato ( 1985 )

WHITE, P. J.

I respectfully dissent. Ward v. Levin (1984) 161 Cal.App.3d 1026, 1032 [208 Cal.Rptr. 312] is, in my view, persuasive authority that Moran v. Superior Court (1983) 35 Cal.3d 229 [197 Cal.Rptr. 546, 673 P.2d 216], cited in the majority opinion at page 221 and in footnote number 4 on page 221, should be applied retroactively to the case at bench.

Moran reaffirmed the “reasonable diligence in prosecuting [the] case” standard relative to Code of Civil Procedure section 583¹ five-year dismissals. (Id., at p. 240.) The Moran court, however, did not stop there. “Moran relied on Hartman [Hartman v. Santamarina (1982) 30 Cal.3d 762, 767-769 (180 Cal.Rptr. 337, 639 P.2d 979, 32 A.L.R.4th 833)] and Nail [Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686-687 (91 Cal.Rptr. 908)] in holding that once a party has requested a trial de novo following arbitration, it is the duty of the court to set the case for trial in a timely fashion; the five-year statute is tolled during the time it takes the court to perform such duty.” (Ward v. Levin, supra, at p. 1032.)

Division Seven of the Second District of this court in Ward v. Levin, supra, at page 1033, astutely analyzed Moran’s decisional rule and its basis as expressed by the Supreme Court. I only add that the Supreme Court in Moran pointedly designated its “rule” relative to five-year dismissals subsequent to court-ordered arbitration to be a “second,” “independent” standard for tolling section 583 time. (See Moran, supra, at p. 240.)

When Moran’s second rule is independently applied to the essential facts of this case, it appears clear that the trial court erred in not denying respondent’s section 583, subdivision (b) motion to dismiss for the reason that the motion was premature. On February 4, 1981, 69 days remained of the statutory 5-year time period. On that date those 69 days were effectively tolled when the court ordered the cause to be arbitrated. (See majority opn., p. 221.) On June 15, 1981, when the arbitration award unfavorable to appellants’ interests was filed, the 69 days commenced to run again. But time ran only until June 19, 1981, when appellant rejected the arbitrator’s award by moving to advance the trial date, a period of four days. (See Moran, supra, at p. 235.) Thereafter, time remaining of the five-year statutory period, i.e., I would think sixty-five days, was tolled until October 5, 1981, the trial date set by the court clerk at appellants’ direction.² Manifestly, respondent’s section 583, subdivision (b) motion heard September 25, 1981, and granted on September 25, 1981, to dismiss was premature and should have been denied on that ground.

The reason, of course, the limitations period provided by section 583, subdivision (b) would not commence to run again until October 5, 1981, results from the retroactive application of Moran’s “second” but independent rule. Clearly, appellants’ motion for advancement of trial filed June 19, 1981, constituted a request for a “de novo trial” within the meaning of section 1141.20. Appellant’s cause had been heard in arbitration with unfavorable results; they then timely of right requested that the cause be heard anew in a trial on the facts and the law. Appellants’ request, in light of Moran, accomplished more; it activated the court’s duty to both restore appellants’ case to a preferred spot on the civil active list and to actually calendar the case for trial. (See Moran, supra, fn. 10, at p. 241.) I can reach no other result upon my reading of Moran’s decisional rule which is: “[wjhere a defendant [party] seeks a trial de novo after arbitration, the trial court should give the matter priority and assign it the earliest possible trial date. The time between the date the arbitration award is filed with the court and the date set for the new trial is to be excluded from calculation of the five-year period of section 583(b).” (Moran, supra, at p. 242.)

I would reverse the judgment.

Appellants’ petition for review by the Supreme Court was denied July 18, 1985.

1 All statutory references are to the Code of Civil Procedure unless otherwise designated.

2 Moran’s decisional “rule II” clearly results in the tolling of 69 days, (see Moran, supra, at p. 242; accord, Ward v. Levin, supra, at p. 1033) but it is my experience that once time runs its course, it defies recapture.