Filed 8/28/18 Briggs v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CHARLES JOHN BRIGGS et al.,

Petitioners,

v.

THE SUPERIOR COURT OF KERN COUNTY,

Respondent;

EVERETT EARLE PEARCE, JR., FLORA GERALDENE CRAWFORD,

Real Parties in Interest.

F075179

(Super. Ct. No. S-1501-PB-60869)

OPINION

ORIGINAL PROCEEDING; petition for writ of mandate. Eric Bradshaw, Judge.

LeBeau-Thelen and Andrew K. Sheffield for Petitioners.

Darling & Wilson, Joshua G. Wilson and Anton H. Labrentz for Real Parties in Interest.

No appearance for Respondent.

-ooOoo-

Via a petition for writ of mandate, Charles John Briggs, Jr., Margaret Briggs Arroyo, and Teresa Briggs Schwerdt (petitioners) challenge the trial court’s denial of their motion to dismiss the complaint of real parties in interest Everett Earle Pearce, Jr. and Flora Geraldene Crawford (real parties) for failure to bring the action to trial before the statutory deadline set forth in Code of Civil Procedure section 583.310. Petitioners have not demonstrated an abuse of discretion. The petition is denied.

FACTS AND PROCEDURAL HISTORY

Petitioners are children of Ruth L. Briggs, deceased. Real parties also are children of decedent and are beneficiaries of decedent’s will. On April 26, 2011, real parties filed in probate court on behalf of decedent’s estate a petition seeking to recover certain real property alleged to be wrongly held by petitioners. The probate petition also named as a defendant an attorney, Thomas Underhill, who drafted Ruth Briggs’s testamentary documents, and whose actions and omissions allegedly caused the property in question to be transferred to petitioners instead of becoming part of the estate.

Between the filing of the probate petition and July 25, 2011, real parties served the petition on petitioners and Underhill and filed supplemental pleadings.

From August 8, 2011, to December 8, 2011, the parties litigated the following matters: petitioners’ motion to quash service of the petition; petitioners’ demurrer; and the probate court’s own motion to transfer the matter to the civil department. On December 8, 2011, the probate court ruled that the matter should be heard in the civil department. It found the demurrer and the motion to quash moot. The case was transferred to the civil department by order filed January 19, 2012.

The civil department assigned the matter a case number on February 7, 2012. From February to May 2012, real parties and Underhill litigated Underhill’s demurrers. In May 2012, the court set a trial date of January 28, 2013, subsequently continued to October 15, 2013. Underhill filed a motion for summary judgment on June 28, 2013; he settled with real parties in August 2013. Petitioners filed a motion for summary judgment on September 19, 2013. The civil department transferred the case back to probate court on September 23, 2013.

Back in probate court, petitioners filed a motion for judgment on the pleadings on October 7, 2013. The court continued the hearing several times on its own motion, finally hearing it on June 26, 2014. On two occasions, the court stated that the continuances were “due to staffing constraints.”

The court granted petitioners’ motion for judgment on the pleadings with leave to amend on June 26, 2014, and set a trial date of March 13, 2015. Real parties filed an amended petition. On September 23, 2014, petitioners filed a motion to strike the amended petition, setting a hearing date of October 23, 2014. Due to staffing constraints, the trial court continued the hearing on its own motion to December 11, 2014. On that date, the court denied the motion to strike, vacated the trial date, and set a new trial date of September 18, 2015.

On January 5, 2015, petitioners filed another motion for judgment on the pleadings, setting a hearing date of February 5, 2015. On February 5, 2015, due to staffing constraints, the trial court continued the hearing to April 30, 2015. On that date, the court ordered supplemental briefing and continued the hearing to September 10, 2015. It vacated the trial date and set a new trial date of January 25, 2016. The motion for judgment on the pleadings was heard on September 10, 2015, and denied on September 25, 2015.

As trustees of a trust involved in the dispute, petitioners filed on November 30, 2015, a subsequent petition to establish the trust’s ownership of property involved in the dispute. They set a hearing date for this petition of January 25, 2016. On January 13, 2016, the court notified the parties that the trial date would be vacated “due to insufficient staffing” and a new trial date would be set at the hearing on January 25, 2016.

At the hearing on January 25, 2016, the court proposed to try real parties’ original petition and petitioners’ subsequent petition together in October 2016. Real parties pointed out this was after April 26, 2016, the end of the five-year period for bringing the case to trial mandated by section 583.310. As a solution to this problem, the court set the first day of trial on April 21, 2016, and five additional days in October 2016.

Instead of adhering to this plan, the parties filed a stipulation on March 17, 2016, in which they agreed to vacate the April 21, 2016 trial date, and continue the commencement of trial to October 24, 2016. The stipulation further stated: “Defendants [petitioners here] waive their right to seek dismissal of Petitioners’ [real parties’ here] action under Code of Civil Procedure § 583.310 provided that trial commences on or before November 1, 2016.”

In September and October 2016, the parties made various filings in preparation for trial: a motion to bifurcate, exhibit and witness lists, motions in limine, trial briefs, and a notice of retention of a court reporter. On October 13, 2016, the court issued a ruling that discovery was closed.

When the parties appeared, ready to begin the trial, on October 24, 2016, however, the commissioner informed them that she had disqualified herself under section 170.1, subdivision (a)(6)(A)(iii), citing a “potential for the appearance of partiality towards one of the principals involved.” She discovered the basis for disqualification while reviewing the parties’ pretrial documents. The other trial dates were vacated.

After making this announcement, the court and real parties’ counsel had the following discussion about what would happen next:

“[The court]: Unfortunately, for you, that means I’m going to have to send the file to Department 1 for reassignment and they don’t notify you except by mail now. It used to be you would walk across the street, but now you have a different scenario.

“[Counsel]: Your Honor, we do have a bit of an issue, as this matter is five years old. So we do have a potential issue with mandatory dismissal.

“[The court]: Okay.

“[Counsel]: I’m not sure what the impact of the Court’s action is.

“What the Court said we would get from Department 1, is it a trial date or a case management conference in front of another officer of the court?

“[The court]: My understanding is they would set a trial date and notify you by mail, so then you would be prepared and told where to appear.

“[Counsel]: Okay.

“[The court]: Sorry about that. This is new information for me. It just came to light.

“As I said, I’ll notify you by mail and I can’t give you any more information besides that.”

The court issued an order on November 30, 2016, assigning the case to Judge Bradshaw and setting a case management conference for December 21, 2016. At that case management conference, the court set the trial to begin on February 21, 2017.

Petitioners filed a motion to dismiss the action on January 6, 2017. The motion argued that the five-year period set forth in section 583.310 had expired, the stipulated extension had also expired, no other extensions applied, and therefore the court was required to dismiss the case by section 583.360.

The court heard the motion and took it under submission on February 7, 2017. On February 10, 2017, the court issued a minute order denying the motion. The court reasoned that petitioners waived their right of mandatory dismissal until the end of the stipulated period. During that period—on October 24, 2016—bringing the action to trial became impossible within the meaning of section 583.340, subdivision (c). The condition of impossibility lasted until November 30, 2016, when the case was reassigned. Pursuant to section 583.340, the period of impossibility is excluded from the computation of the time by which the action must be brought to trial. Further, because there was less than six months left of the time within which the action needed to be brought to trial when the period of impossibility began, the time was extended by six months from the end of the period of impossibility under section 583.350. The trial date, February 21, 2017, was within this extended period, so petitioners were not entitled to have the case dismissed.

Petitioners filed the present writ petition, seeking an order reversing the ruling, on February 24, 2017. We issued an order to show cause and stayed the trial. Real parties filed a return, and petitioners filed a traverse.

DISCUSSION

I. Standard of review

We review the trial court’s ruling on the motion to dismiss for abuse of discretion. The party challenging the ruling has the burden of showing an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) We will not find an abuse of discretion unless the challenger demonstrates that there is no substantial evidence in support of the decision or it was the result of the application of an erroneous legal standard. (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.)

II. Pertinent statutes

This case turns on the application of five sections of the Code of Civil Procedure:

“An action shall be brought to trial within five years after the action is commenced against the defendant.” (§583.310.)

“The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means:

“(a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal.

“(b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made.” (§ 583.330.)

“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.” (§ 583.340.)

“If the time within which an action must be brought to trial pursuant to this article is tolled or otherwise extended pursuant to statute with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial, the action shall not be dismissed pursuant to this article if the action is brought to trial within six months after the end of the period of tolling or extension.” (§ 583.350.)

“(a) 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 in this article.

“(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360.)

The purpose of these statutes, of course, is to determine what they refer to as “the time within which an action must be brought to trial” after its commencement. The default time is five years. (§ 583.310.) The parties can stipulate or agree to a longer time. (§ 583.330.) The running of the time is tolled while certain conditions exist: the trial court’s jurisdiction is suspended, the action is stayed or enjoined, or bringing the action to trial is impossible, impracticable, or futile. The time when these conditions exist does not count as part of the time within which the action must be brought to trial. In other words, the clock stops running when one of these conditions comes to be and begins running again when it ceases to be. Suppose, for example, that today there is one year remaining in the time within which a given action must be brought to trial. Imagine that the action is stayed today, and then remains stayed for three months. At the end of those three months, there will still be one year remaining in the time within which the action must be brought to trial. (§ 583.340.) Now, instead of one year remaining, imagine that there is only one week remaining when a stay or other condition that causes tolling comes to be. When that condition ceases to be, instead of one week, there will be six months remaining in the time within which the action must be brought to trial. (§ 583.350.)

If the time for bringing an action to trial, as extended by all applicable extensions, expires, and the action still has not been brought to trial, it must be dismissed. If the defendant does not move for dismissal, the trial court must dismiss on its own motion. (§ 583.360.)

III. Analysis

A. Application of statutes

The trial court’s application of the statutes was correct. The analysis is straightforward. Real parties’ petition was filed in the trial court on April 26, 2011, so the original deadline for bringing the action to trial was five years later, April 26, 2016. (§ 583.310.) By written stipulation, the parties extended the time within which the action must be brought to trial to November 1, 2016. (§ 583.330, subd. (a).) On October 24, 2016, a condition arose making it impossible to bring the action to trial: The commissioner declared herself disqualified and sent the case back for reassignment. The parties were ready for trial, and nothing remained for them to do to bring the case to trial, but the case could not be tried without a judicial officer. This condition ended no earlier than November 30, 2016, when the reassignment took place. The time between October 24, 2016, and November 30, 2016, thus did not count as part of the time within which the action must be brought to trial. (§ 583.340, subd. (c).) When the clock stopped on October 24, 2016, there were only eight days remaining in the time within which the action must be brought to trial. Eight days is less than six months. Consequently, when the clock began to run again on November 30, 2016, real parties received a new time of six months within which to bring the case to trial. (§ 583.350.) The trial date of February 21, 2017, was within this six-month period, so when petitioners filed their motion to dismiss, no grounds for dismissal existed.

B. Impossibility extension: diligence requirement

A potentially complicating factor is the requirement that, to obtain the benefit of the tolling under section 583.340, subdivision (c), a party must exercise diligence at all stages of the action. Unlike tolling based on the action being suspended, stayed, or enjoined (§ 583.340, subds. (a), (b)), tolling based on impossibility, impracticality, or futility (§ 583.340, subd. (c)) is effective only for a diligent plaintiff. This requirement is not reflected in the language of the statute, but the statute was intended to codify case law existing at the time of its enactment in 1984 (see Cal. Law Revision Com. com., 15C West’s Ann. Code Civ. Proc. (2011 ed.) foll. § 583.340, p. 457), and the diligence requirement has been upheld by numerous appellate decisions since then. (See, e.g., Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438-439; Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1420-1422 (Jordan); Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328, 336 (Tamburina); Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 252-253; Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1798, 1800-1801, fn. 8; Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532-1533.)

It is not only that the plaintiff must take any reasonable steps available during the period of impossibility or impracticability, as a way of demonstrating that bringing the action to trial really was impossible or impracticable during this period. The plaintiff must be reasonably diligent before and after that period as well. For example, even if the trial court declares a moratorium on civil trials due to court congestion, the five-year deadline will not be tolled during the moratorium period if the plaintiff was not prevented from prosecuting the case (apart from being unable to commence a trial) during that period, or was not diligent before or after the period, and consequently did not show he or she could not with reasonable diligence have brought the case to trial within five years despite the moratorium. (Jordan, supra, 182 Cal.App.4th at pp. 1421-1422.)

As we will explain, however, no abuse of discretion arising from the diligence requirement has been shown in this case.

With respect to the period before the commissioner disqualified herself—which constitutes the bulk of the procedural history of this case—petitioners make only a single narrow argument: Instead of entering into a stipulation with petitioners to extend the time within which the action must be brought to trial, real parties should have accepted the trial court’s proposal to get inside the five-year deadline by beginning the trial on April 21, 2016, and then continuing it to several dates in October, as it would not have been impossible, impracticable, or futile to do this.

The defect in this argument is that the act, pursuant to section 583.330, of entering into a stipulation to extend the time within which an action must be brought to trial cannot reasonably be regarded as a failure to be diligent. If it could, any such stipulation would amount to nothing more than a tactical delay by the plaintiff, automatically defeating any subsequent invocation of the impossibility doctrine under section 583.340, subdivision (c). We do not think the Legislature intended these two provisions, section 583.330 and section 583.340, subdivision (c), to run afoul of each other in this manner. A better interpretation is that if the defendant agrees to enter into a stipulation to extend, then the stipulation is not a dilatory or negligent act of the plaintiff, for the defendant has not deemed it so.

Beyond this, the record affirmatively indicates that a lack of diligence was not behind real parties’ decision to enter into the stipulation. It does not appear that either side was unready for trial at that point. Instead, the stipulation itself states that “the Parties feel that the six-month gap between the first trial date on April 21st and the second trial date on October 24th would not promote the efficient use of judicial and litigant resources. In addition, this six-month gap would make it difficult for a witness testifying on April 21st to remember what was said … when he/she returns six months later … to finish his/her testimony.”

Petitioners have not made any argument that anything else occurring or not occurring between April 26, 2011, and October 24, 2016, amounted to a lack of diligence on real parties’ part. As the burden is on petitioners to demonstrate an abuse of discretion, the failure to raise any other issues during this time period forfeits them. In any case, so far as the record submitted to us permits any conclusion, it appears that the period between those dates was occupied with fairly active litigation, impeded at times by court congestion. It is not indicative of a lack of diligence.

Petitioners do argue that real parties were not diligent during the time the case was awaiting reassignment, October 24, 2016, to November 30, 2016. Specifically, petitioners say there was a week between the commissioner’s recusal and the stipulated date of November 1, 2016, and that real parties could have filed something urging the court to reassign the case and set a date within that week for the beginning of the trial. But this is unrealistic and would have been pointless. At the hearing on October 24, 2016, the court explained that it was directing the matter to be reassigned, that the court was aware of the deadline issue, and that the parties would be notified by mail when reassignment had taken place. Under these circumstances, we must assume the court did its duty as expeditiously as possible. Parties need not pester the court with superfluous filings.

Our conclusion on this point is supported by this court’s holding in Nail v. Osterholm (1970) 13 Cal.App.3d 682 (Nail). In that case, a trial was set to begin over a year before the expiration of the five-year period. On the day the trial was to begin, the judge informed the parties of a connection to one of the defendants, and the plaintiff challenged the judge under section 170.6. The judge said the case would be reassigned and dismissed the jury. The case was not reassigned for over a year, and after it was reassigned, a trial date was set past the five-year deadline. The plaintiff’s motion to advance the trial date was denied, and after the deadline passed, the defendants moved successfully to have the action dismissed for failure to bring it to trial within five years. (Nail, supra, at pp. 685-686.) The Court of Appeal reversed, stating:

“[W]e … hold that if a case is timely set for trial, and if thereafter a challenge against the trial judge to whom it is assigned is allowed, not only is it the duty of the court to assign the case to another judge if one is available, or if none is available to procure the assignment of an outside judge through the Chairman of the Judicial Council, but the period that the trial is held in abeyance pending the assignment of another judge is to be disregarded in considering a subsequent motion to dismiss.” (Nail, supra, 13 Cal.App.3d at p. 686.)

As for the period after the case was assigned to Judge Bradshaw on November 30, 2016, the trial court could reasonably find that real parties were diligent. Both sides had been ready for trial for over a month, at least, by then. Nothing in the record suggests they were waiting for anything but the judge’s availability at that point. A case management conference was held December 21, 2016, and the trial was then set for February 21, 2017. There is no reason to suppose real parties could have taken additional steps to make these things happen faster.

Petitioners contend that the trial court abused its discretion because its order did not discuss the diligence requirement. But there is no general principle that a trial court must state on the record all its reasons for all its rulings, and we are aware of no rule specifically requiring such a statement of reasons for a ruling on a motion to dismiss for failure to bring an action to trial within the required time. Instead, default principles of appellate review apply: “On appeal, we presume that a judgment or order of the trial court is correct, ‘“[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’” (People v. Giordano (2007) 42 Cal.4th 644, 666.) If a judge opts to state reasons for a ruling, and they are erroneous reasons, this may be grounds for finding an abuse of discretion, but that did not happen here. Petitioners have failed to show affirmatively that the trial court erred on the issue of diligence.

C. Impossibility extension: causation requirement

In addition to both identifying an occurrence that made it impossible, impracticable, or futile to bring the action to trial before the deadline, and showing the exercise of reasonable diligence at all stages of the case, a plaintiff relying on section 583.340, subdivision (c), must show a causal connection between the occurrence and the failure to bring the action to trial on time. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 594; Tamburina, supra, 147 Cal.App.4th at pp. 328, 333.) Petitioners have not raised this point and thus have forfeited any argument based on it. In any event, the record sufficiently shows the causal connection. On October 24, 2016, the parties were ready for trial and needed nothing but a judge and a courtroom. They could get neither until the case was reassigned, and could not reasonably do anything to get it reassigned faster. After it was reassigned, the case management conference and trial setting happened reasonably expeditiously. Thus it was the period of impossibility following the commissioner’s disqualification that caused the case not to be brought to trial by November 1, 2016.

D. Petitioners’ arguments regarding effect of stipulation

The main theme of petitioners’ briefing in these writ proceedings is that the parties’ stipulation is incompatible with the extensions provided by section 583.340, subdivision (c) (the impossibility extension) and section 583.350 (the six-month additional extension). The stipulation provided, in pertinent part, as follows:

“IT IS HEREBY STIPULATED AND AGREED by and between the Parties, through their respective counsel of record, that:

“1. Defendants [petitioners here] waive their right to seek dismissal of Petitioners’ [real parties’ here] action under Code of Civil Procedure § 583.310 provided that trial commences on or before November 1, 2016.

“2. The Trial, currently set for April 21, 2016, be vacated and continued to October 24, 2016, at 1:30 pm in Department P.

“3. The remaining Trial dates of October 24, 2016, October 25, 2016, October 26, 2016, October 27, 2016, and October 31, 2016 (all at 1:30 pm in Department P) continue to remain on calendar.”

We turn to these arguments now.

1. The stipulation vis-a-vis the extension under section 583.340, subdivision (c)

Petitioners maintain that, by the terms of the stipulation, their waiver of their right to mandatory dismissal was conditioned on the trial commencing no later than November 1, 2016. As this condition was not fulfilled, they say, the waiver never occurred and April 26, 2016, remained the date after which the right to mandatory dismissal could be exercised. This meant, in effect, that the stipulation was not a stipulation to extend the time within which the action must be brought to trial beyond April 26, 2016; it was just a potential waiver of the right to dismiss that never took effect. Consequently, the asserted period of impossibility (following the disqualification of the commissioner on October 24, 2016) did not take place until after the time within which the case must be brought to trial expired. This, in turn, meant that the tolling due to impossibility under section 583.340, subdivision (c), was never triggered.

This interpretation of the stipulation is precluded by established principles. A stipulation is deemed to be one that extends the time within which an action must be brought to trial within the meaning of section 583.330, if it contains either of two types of provisions: a provision expressly agreeing to a trial date beyond the five-year period, or a provision expressly waiving the right to dismissal. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1269, fn. 3.) In this case, the parties’ stipulation expressly agreed to a trial date—October 24, 2016—beyond the five-year period. It follows that it was a stipulation to extend the time within which the action must be brought to trial, not merely a conditional waiver of the right to dismissal.

The statutory scheme of which section 583.330 is a part does not admit of any other conclusion. If the stipulation were not a stipulation to extend the time within which the action must be brought to trial, as contemplated by section 583.330, the parties would have had no power to specify a trial date after the five-year deadline, for the trial court would have been obligated to dismiss the action on its own motion before the stipulated trial date arrived. The trial court shall dismiss the action on its own motion if it has not been brought to trial within the five-year period (§ 583.360, subd. (a)), unless the time within which it must be brought to trial has been extended in one of the statutorily approved ways (§ 583.360, subd. (b).) In other words, if the stipulation were interpreted as petitioners urge—as not amounting to an extension of time under section 583.330—it would be self-defeating. We will not attribute to the parties to a contract an intention that the contract be automatically self-nullifying.

Petitioners will not be heard to complain that this interpretation of the stipulation surprises them or imposes on them a meaning they did not intend. Ordinarily, contracting parties are presumed to know the applicable law, and their contracts are presumed to reflect it. (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 954-955 & fn. 7.) No reason appears for departing from this general rule here. The stipulation is a stipulation to extend time because that is the only stipulation the statute authorizes.

For these reasons, the stipulation extended the time within which the action must be brought to trial, to either October 24, 2016, or November 1, 2016. From an extension of time, certain consequences necessarily follow by statute. One of these involves tolling under section 583.340. That section states that the time during which a condition of impossibility (among others) exists “shall be excluded” from the computation of “the time within which an action must be brought to trial pursuant to this article.” After a stipulation to extend time pursuant to 583.330 is executed, the time within which the action must be brought to trial pursuant to the statutes is the new time that has been stipulated. The tolling thus tolls that time.

The condition of impossibility existed from October 24, 2016, to November 30, 2016. Thus, regardless of whether the stipulation extended the time for bringing the action to trial to October 24, 2016, or November 1, 2016, the time was subsequently tolled by section 583.340, subdivision (c), until November 30, 2016.

2. The stipulation vis-a-vis the extension under section 583.350

Petitioners next argue that even if the tolling for impossibility under section 583.340 applies, the period of impossibility expired when the case was reassigned (November 30, 2016) at the latest, and at that time only eight days at most remained of the stipulated extension (i.e., the days from October 24. 2016, to November 1, 2016). The action was not brought to trial during those eight days, so dismissal was thereafter mandatory. Petitioners say the additional six-month extension under section 583.350 does not apply because that statute, by its own terms, applies only where the time to bring the action to trial “is tolled or otherwise extended pursuant to statute with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial.” Petitioners contend that the time in this case was extended, if at all, pursuant to a stipulation, not pursuant to statute.

Even putting aside the fact that the stipulation was itself pursuant to statute, this argument reflects a misunderstanding. The six-month extension was triggered by the effect of the tolling due to impossibility under section 583.340, subdivision (c), not by the stipulation. Tolling due to impossibility is indisputably “pursuant to statute.”

IV. Conclusion

For all the above reasons, we conclude petitioners have failed to show that the trial court abused its discretion in denying their motion to dismiss.

DISPOSITION

The petition for writ of mandate is denied and the stay is vacated. Costs are awarded to real parties in interest.

SMITH, Acting P.J.

WE CONCUR:

MEEHAN, J.

ELLISON, J. †