34-2013-00147096

Wei Hong Li vs. Fina Preciado

Nature of Proceeding: Motion to Dismiss

Filed By: Gillespie, G. Rich

The motion of Defendants Gina Preciado and Robert Preciado (collectively “Defendants”) to dismiss for failure to bring the action to trial within five years is DENIED.

This is a case for personal injuries arising from a car collision. The plaintiffs are Wei Hong Li and Yue Chang Yu (collectively “Plaintiffs”). Plaintiffs filed their complaint on 1/09/13, more than five years ago. Defendants now move for a mandatory dismissal pursuant to CCP §§ 583.310 et seq. Plaintiffs oppose.

Plaintiffs argue that CCP § 1141.17 allows them to bring the matter to trial outside the normal five-year period. Section 1141.17 is part of the statutory scheme governing judicial arbitrations. Subdivision (b) of § 1141.17 reads:

If an action is or remains submitted to arbitration pursuant to this chapter more than four years and six months after the plaintiff has filed the action, then the time beginning on the date four years and six months after the plaintiff has filed the action and ending on the date on which a request for a de novo trial is filed under Section 1141.20 shall not be included in computing the five-year period specified in Section 583.310.

The court ordered this matter to judicial arbitration as of 1/23/14. (See Register of Actions No. 27.) An arbitrator was selected in 2014 as well, but no arbitration has taken place. Neither party has moved for an order removing the case from judicial arbitration.

Defendants argue that, notwithstanding the text of § 1141.17, the court should dismiss the action because Plaintiffs were not diligent in pursuing arbitration. Defendants assert that Plaintiffs caused the original arbitration hearing date to be vacated to accommodate a trip abroad. Defendants argue Plaintiffs thus assumed a duty to reschedule the arbitration. Based on this notion of duty, Defendants argue that § 1141.17 does not apply.

Defendants do not cite any legal authority for their notions of diligence and assumed duty. (Compare Niesner v. Kusch (1985) 186 Cal.App.3d 291, 296-297 [§ 1141.17 tolls five-year period even if arbitration never occurs].) As a result, the court concludes that § 1141.17 continues to toll the five-year period until such time as either side requests a post-arbitration trial de novo or the matter is restored to court’s civil docket.

The motion for a mandatory dismissal is denied.