Filed 3/3/20 Corbin v. County of Los Angeles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115a), 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

MARC ALAN CORBIN,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES et al.,

Defendants and Respondents.

B293783

(Los Angeles County

Super. Ct. No. BC512036)

APPEAL from an order of the Superior Court of Los Angeles County. Patricia D. Nieto, Judge. Affirmed.

McMurray Henriks, LLP, and Yana Gayane Henriks for Plaintiff and Appellant.

Harold G. Becks & Associates, Harold G. Becks and V. Rene Daley for Defendants and Respondents.

______________________________

Plaintiff and appellant Marc Alan Corbin appeals from a trial court order dismissing his lawsuit against defendants and respondents County of Los Angeles and James Flores for failure to comply with Code of Civil Procedure section 583.310, which requires that an action be brought to trial within five years after commencement.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Complaint

On June 13, 2013, plaintiff, represented by The Douglas Firm and Antablin & Bruce, filed a complaint for damages against defendants, alleging claims for civil rights violations (42 U.S.C. § 1983; Civ. Code, § 52.1) and battery. According to the complaint, plaintiff suffered damages following three separate attacks by Los Angeles County sheriff deputies while he was in their custody in the Los Angeles County Jail.

II. Trial Continuances

Trial was initially set for January 20, 2015. However, it was then continued multiple times.

First, in late October or early November 2014, the parties filed a stipulation to continue the trial in order to allow them sufficient time to complete discovery. In accordance with the stipulation, the trial court vacated the January 20, 2015, trial date; trial was then set for October 26, 2015.

Next, on July 23, 2015, defendants filed an unopposed ex parte application to continue trial. Defendants made the request “due to the health problems of prior defense counsel . . . , the substitution of current defense counsel to replace [prior counsel], and the need to schedule depositions while working through the respective counsel[’s] busy trial calendars.” The trial court granted defendants’ ex parte application and vacated the October 26, 2015, trial date. At the subsequent trial setting conference, trial was set for July 5, 2016.

III. Plaintiff’s New Counsel; First Amended Complaint; More Continuances of Trial

On January 25, 2016, plaintiff’s new counsel (Law Offices of Joel W. Baruch and Joel W. Baruch) filed a first amended complaint on plaintiff’s behalf, alleging civil rights violations (42 U.S.C. § 1983; Civ. Code, § 52.1), battery, and a claim for failure to provide plaintiff with adequate medical care, in violation of his constitutional rights.

Four days later, on January 29, 2016, the Law Offices of Joel W. Baruch filed a motion to be relieved as counsel on the grounds that “a serious and material conflict of interest” had arisen between Mr. Baruch and plaintiff.

On February 17, 2016, Curd, Galindo & Smith, LLP, and Alexis Galindo substituted in as counsel for plaintiff.

On May 26, 2016, defendants filed another unopposed ex parte application to continue trial. In support, defendants submitted a declaration from Mr. Galindo (plaintiff’s new attorney), who stated that (1) defendants had not yet been able to complete plaintiff’s deposition, and (2) numerous other depositions needed to be completed but would not be completed by the current deadline as a result of his current trial schedule. Mr. Galindo asserted that the parties needed an additional 120 days to complete discovery and prepare for trial.

The trial court granted defendants’ ex parte application and vacated the July 5, 2016, trial date. Trial was set for June 5, 2017. Then, because of a conflict on Mr. Galindo’s calendar, trial was rescheduled to July 10, 2017.

On November 17, 2016, Curd, Galindo & Smith, LLP, and Mr. Galindo substituted out as plaintiff’s counsel of record. Plaintiff substituted in as his own attorney.

On February 7, 2017, the Law Offices of Allison M. Schulman and Allison M. Schulman substituted in as plaintiff’s new attorney. Three-and-a-half months later, on May 24, 2017, Ms. Schulman and her apparent cocounsel, Christina Coleman, filed an ex parte application for order to be relieved as counsel for plaintiff. The trial court granted that application and vacated the July 10, 2017, trial date.

On July 24, 2017, the trial court reset trial for March 5, 2018.

On November 14, 2017, plaintiff’s current counsel (McMurray Henriks, LLP, Randy H. McMurray, and Yana Gayane Henriks) substituted in as attorney for plaintiff.

On January 11, 2018, plaintiff filed an unopposed ex parte application to continue trial. Plaintiff argued that good cause supported the request, pointing to (1) counsel had only recently been brought onto the case, and (2) discovery had not yet been completed.

IV. Plaintiff’s Peremptory Challenge

It is unclear whether the trial court ever reached the merits of that ex parte application, but the March 5, 2018, trial date remained in place as of February 26, 2018, when plaintiff filed a peremptory challenge (§ 170.6) to the Honorable Joanne O’Donnell, who was temporarily assigned to the courtroom where plaintiff’s case was pending, while the regularly assigned judge, the Honorable Yvette M. Palazuelos, was out on medical leave. On March 1, 2018, the trial court (O’Donnell, J.) granted plaintiff’s peremptory challenge and vacated all future dates (including the trial date); the case was reassigned to the Honorable Robert L. Hess.

V. Case Management Conference

The parties participated in a case management conference before Judge Hess on April 23, 2018. The minute order indicates that “Counsel will mediate privately,” and a postmediation status conference was set for July 24, 2018. The case management order provides: “The parties are advised they are 6 months from trial.” No trial date was set.

VI. Plaintiff’s Motion for Sanctions

On May 2, 2018, plaintiff filed a motion for sanctions for defendants’ willful spoliation of evidence. Specifically, plaintiff sought an order “imposing terminating, issue, and/or evidentiary sanctions.” According to plaintiff, defendants willfully destroyed and/or tampered with video surveillance evidence of the “violent attacks” by deputies. Defendants opposed the motion.

The trial court held a hearing on plaintiff’s motion on May 24, 2018. While discussing the motion with counsel, the trial court noted that the video was produced on May 8, 2014, but “plaintiff never complained about the video or sought a motion to compel further regarding the video in the, approximately, four years since the County produced it. [¶] Your issues with the video that was produced—that the timestamp is distorted, showing that it was tampered with and that it does not depict plaintiff—should those things have been apparent when the County produced it in 2014?” Dissatisfied with counsel’s failure to respond, the trial court pressed: “The video was produced, apparently, in or about May of 2014. You had it for nearly four years without objection that it was—that if the timestamp was distorted—possibly indicating tampering, and that it did not depict the plaintiff. [¶] . . . [¶] Why is it that you did not review it and discover these things in a timely fashion? . . . If it is obvious from looking at the video that the timestamp is distorted, why was this not brought up for nearly four years?” When counsel tried to explain that she could not speak for prior counsel, the trial court commented: “But you take this case in the posture that prior counsel left it.”

After a lengthy oral argument, the trial court took the matter under submission.

On June 20, 2018, the trial court issued an order on plaintiff’s motion for sanctions. It stated: “The court has reviewed the materials filed in support of and in opposition to plaintiff’s motion for terminating or other sanctions. This review has been hampered by the parties’ use of inflammatory rhetoric, the lack of clarity and omissions with respect to the facts presented, as well as by conflicts in the facts. The review is also hampered by plaintiff’s and defendant[s’] counsel’s use of the same exhibit numbers in different documents to refer to different things. . . . This practice does little to promote comprehensibility. As a result, the court requires supplemental briefing on a number of issues.” The parties were ordered to submit supplemental briefs and appear for further oral argument on July 27, 2018.

VII. Case is Reassigned

For unknown reasons, on June 21, 2018, one day after the trial court issued its order on plaintiff’s motion for terminating sanctions, the case was reassigned to the Honorable Patricia D. Nieto, effective July 2, 2018. “All matters on calendar in this case will remain set on the dates previously noticed.”

A trial setting conference was set for August 22, 2018.

A. Further hearing develops into a discussion regarding the five-year period

Meanwhile, the parties appeared on July 27, 2018, for the further hearing on plaintiff’s motion for sanctions. At the onset of the hearing, the trial court noted that it had “some questions . . . about the case being quite old, past the five-year date.” After all, the original complaint had been filed on June 13, 2013, and it was now more than five years later. Plaintiff’s counsel responded that the five-year statutory period had been tolled for six months, at a minimum, as a result of the section 170.6 peremptory challenge to Judge O’Donnell. According to plaintiff, that six-month period “start[ed] running from the time when the case got reassigned to a new judicial officer,” meaning Judge Hess. Thus, “by [a] very conservative estimate,” the five-year period would not expire until September 3, 2018, “[o]r if the court finds . . . that it’s impracticable for the court . . . to have this case start a trial on September 3rd.”

In urging that the statutory period was tolled, plaintiff’s counsel pointed out that there had been numerous continuances and plaintiff had changed attorneys. The trial court responded: “[S]tipulations to continue do[] not toll the five-year dates, unless you’re stipulating to go past, number one. Number two, the fact that numerous counsel have represented one side or the other, again, that does not toll the five-year date.”

The parties spent some time arguing about whether the five-year statutory period had been tolled. At one point, plaintiff’s counsel stated, “So if we pull the transcript, the question is, [defense counsel] agreed when Judge Hess said it’s automatically tolling for six months. [Defense counsel] also didn’t want to go to trial. [Defense counsel] wanted . . . mediation.” The trial court responded: “I didn’t see anything in the minute orders that indicated that Judge Hess stated that . . . there was a tolling of six months. I reviewed the minute orders, and I didn’t see that. Don’t know if that was stated, and it was in a transcript. I don’t have a transcript.”

Oral argument continued, until the trial determined that further briefing was required. Thus, the hearing was continued to August 10, 2018. The parties were ordered to submit briefs on the issue of tolling of the five-year statutory period.

B. Briefs on tolling of the five-year statutory period

As ordered by the trial court, the parties submitted their briefs on the issue of tolling of the five-year period. As is relevant to the issues in this appeal, plaintiff argued that the statutory period was tolled when the case was reassigned from Judge O’Donnell to Judge Hess. In support, plaintiff relied heavily upon Nail v. Osterholm (1970) 13 Cal.App.3d 682, 686–687 (Nail). Plaintiff also argued that the statutory period should be tolled because of defendants’ numerous requests to continue trial. And, the five-year period was tolled when the trial court sent the parties to mediation.

C. Continued hearing on the issue of the five-year period and tolling

At the continued hearing, the trial court summarized its review of the procedural history of the case and noted that it had received and reviewed the parties’ briefs. It then stated: “[I]t is clear from the Code [of Civil Procedure] that the five-year statute—the requirements of that article are mandatory and are not subject to extension, excuse or exception, except as expressly provided by statute, which is then provided by statute. And I think the one that applies here is whether in fact counsel have entered into either a written stipulation or express oral argument in court.”

The trial court then commented upon plaintiff’s reliance upon Nail, supra, 13 Cal.App.3d 682. “In that case[,] the plaintiff asserted that the five-year period was tolled because the court failed to promptly reset the case for trial after plaintiff timely exercised a peremptory challenge pursuant to . . . [section] 170.6. [¶] At first glance, it seems that that might apply. However, in that case and the facts of that case, it was a case that was not in this county, a small county. It appears that the 170[.6] was filed the day of trial with a few months remaining. And it appears that the assignment for trial was made almost 11 months later by the assigning or supervising judge of that county. The court found at that time that it was the fault of the court. The delay was the fault of the court for failing to assign the case promptly and not the fault of the plaintiff. That certainly did not appear here, because the case was assigned promptly.”

With respect to whether the parties’ participation in mediation tolled the five-year period, the trial court found that the automatic tolling provisions did not apply. In support, the trial court relied upon Castillo v. DHL Express (USA) (2015) 243 Cal.App.4th 1186, 1199 (Castillo), which held “that the automatic tolling provision found in section 1775.7, subdivision (b), has no application where, as here, the parties choose to mediate their dispute privately.”

After entertaining oral argument, the trial court dismissed plaintiff’s lawsuit on the grounds that it had not proceeded to trial within five years, as required by section 583.310. In so ruling, it found that the statutory period had not been tolled.

VIII. Dismissal and Appeal

An order of dismissal was entered, and this timely appeal ensued.

DISCUSSION

I. Standard of review

“Appellate review of a trial court’s determination of whether section 583.310 was tolled for impossibility, impracticability, or futility is limited. This is because trial courts are best equipped to evaluate the complicated factual matters that could support such a finding. [Citation.] We therefore review a trial court’s tolling decision for abuse of discretion, giving it the usual deference accorded by that standard, and reversing only if no reasonable basis exists for the trial court’s decision. [Citations.] In the absence of an abuse of discretion, we will affirm even if we would have ruled differently. [Citations.]” (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 324; see also Hughes v. Kimble (1992) 5 Cal.App.4th 59, 71 [“the determination of whether the prosecution of an action was indeed impossible, impracticable, or futile during any period of time, and hence, the determination of whether the impossibility exception to the five-year statute applies, is a matter within the trial court’s discretion. Such determination will not be disturbed on appeal unless an abuse of discretion is shown. [Citations.]”].)

“Of course, our review may be more searching in some circumstances. If, for example, we are called to determine whether the trial court properly interpreted section 583.310, section 583.340, subdivision (c), or some other question of law, those are matters on which we may substitute our judgment as an appellate court. In such a case, we review the trial court’s interpretation de novo. [Citations.]” (Tanguilig v. Neiman Marcus Group, Inc., supra, 22 Cal.App.5th at p. 324.)

II. The trial court properly dismissed plaintiff’s action for failure to bring it to trial within five years

Section 583.310 provides: “An action shall be brought to trial within five years after the action is commenced against the defendant.” Section 583.360 continues: “(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.”

Here, plaintiff filed his complaint against defendants on June 13, 2013. Thus, he had until June 13, 2018, to bring his action to trial. Because he had not brought the case to trial by that time, on August 10, 2018, the trial court properly dismissed his lawsuit.

A. Plaintiff did not demonstrate that the five-year period was tolled

In urging us to reverse the trial court’s order, plaintiff asserts that the five-year period was tolled. He identifies five potential tolling events: (1) the filing of the peremptory challenge to Judge O’Donnell; (2) the parties’ agreement to participate in mediation; (3) defendants’ requests for continuances of the trial; (4) plaintiff’s motion for sanctions; and (5) the parties should be deemed to have stipulated to a trial date after the five-year period expired based upon their conduct at the April 23, 2018, status conference.

1. Relevant law

Section 583.340 governs tolling of the five-year statutory period. That statute provides, in relevant part: “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: [¶] . . . [¶] (c) Bringing the action to trial . . . was impossible, impracticable, or futile.” Thus, only if one of the five identified potential tolling events made bringing this lawsuit to trial “impossible, impracticable, or futile” was the five-year statutory period tolled.

“The tolling provision for impossibility, impracticability or futility does not exist in a vacuum.” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270 (Sanchez).) “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. 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. [Citations.] To establish reasonable diligence, the plaintiff must be able to demonstrate diligence in pursuit of his or her duty to expediate the resolution of the case at all stages of the proceedings. [Citations.] Central to this duty is the specific duty to use every reasonable effort to bring the matter to trial within the five-year period. [Citation.]” (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1339–1340.)

“This exception is recognized because the purpose of the five-year statute is to prevent avoidable delay, and the exception makes allowance for circumstances beyond the plaintiff’s control, in which moving the case to trial is impracticable for all practical purposes. [Citation.]” (De Santiago v. D&G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 371 (De Santiago).)

“[I]n determining whether the . . . exception applie[s], the court must find the following three factors: (1) a circumstance of impracticability[, impossibility, or futility]; (2) a causal connection between that circumstance and the plaintiff’s failure to move the case to trial; and (3) that the plaintiff was reasonably diligent in moving the case to trial. [Citation.]” (De Santiago, supra, 155 Cal.App.4th at p. 372.)

2. Five alleged tolling events

a. peremptory challenge

Each of the five events identified by plaintiff does not meet the statutory definition of tolling. First, the filing of the peremptory challenge to Judge O’Donnell, and the resulting three-day period between the time the peremptory challenge was filed and the date when the case was reassigned, did not make bringing this action to trial within five years “impossible, impracticable, or futile.” Plaintiff had more than enough time, outside those three days, to litigate this case to trial. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1102 (Gaines) [in order for a delay to qualify as a circumstance of impracticability, plaintiff must “demonstrate that the delay had a significant enough impact on the litigation to elevate it from an ordinary circumstance to a circumstance of impracticability”].)

Relying upon Nail, supra, 13 Cal.App.3d 682, plaintiff contends that his filing of the peremptory challenge constituted a tolling event, as defined by section 583.340. That case is readily distinguishable. In Nail, the plaintiff filed a malpractice action against the defendants in October 1963. The case was set for trial in mid-1967. On the trial date, the judge was disqualified on a peremptory challenge under section 170.6 because he was acquainted with one of the defendants. The matter was taken off calendar and not reset for trial until after the five-year period had lapsed. The delay in resetting the trial was caused by the trial court, not the plaintiff or his attorney. Nonetheless, the defendants moved to dismiss, and the trial court granted the defendants’ motion. (Nail, supra, pp. 685–686.)

The Court of Appeal reversed the trial court, noting that the five-year statute had to “be reconciled with the fundamental right of a litigant to disqualify a trial judge pursuant to the provisions of section 170.6.” (Nail, supra, 13 Cal.App.3d at p. 686.) Accordingly, the Court of Appeal held “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.” (Ibid.)

That is not what occurred here. As the trial court noted, the three-day delay between the time plaintiff filed his section 170.6 challenge to Judge O’Donnell and when the case was reassigned to Judge Hess did not lead to the dismissal for failure to comply with the five-year rule. Plaintiff’s argument notwithstanding, nothing in Nail stands for the proposition that the filing of a section 170.6 challenge constitutes a tolling event under section 583.340 as a matter of law. All that Nail recognized was that in that particular case, the filing of the section 170.6 challenge and court’s conduct thereafter made bringing the case to trial within five years impossible.

Likewise, Hartman v. Santamarina (1982) 30 Cal.3d 762 does not aid plaintiff on appeal. In that case, the section 170.6 challenges had been initiated by the defendant and resulted in a delay of about 11 months. (Hartman v. Santamarina, supra, at p. 768.) Here, plaintiff initiated the section 170.6 challenge, and that challenge resulted in a three-day delay.

Moreover, plaintiff has not demonstrated a causal connection between the circumstance (the filing of the peremptory challenge) and his failure to bring the action to trial within five years. (Sanchez, supra, 109 Cal.App.4th at p. 1272.) Rather, it appears that plaintiff’s failure to bring the action to trial within five years may have been attributable to plaintiff’s revolving door of attorneys, regardless of how diligent plaintiff’s current counsel claims she was after she substituted into the case.

And, we cannot ignore the fact that plaintiff never asked the trial court to set the matter for trial so that the five-year period would not lapse. “‘“Where 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 [a] motion will preclude a later claim of impossibility or impracticability.” [Citation.]’ [Citation.]” (Sanchez, supra, at p. 1274.) The fact that plaintiff’s July 30, 2018, brief included a request for trial preference, was just too little, too late. The five-year period had already lapsed.

b. mediation

Second, the parties’ agreement to participate in mediation did not make bringing the case to trial “impossible, impracticable, or futile.” The automatic tolling provision of section 1775.7, subdivision (b) does not apply because Judge Hess did not order the parties to participate in mediation in a court program. (Castillo, supra, 243 Cal.App.4th at p. 1198 [“section 1775.7, subdivision (b), automatically tolls the five-year statutory time to prosecute an action only if the parties participate in a mediation conducted through a court-annexed mediation program”]; see also Gaines, supra, 62 Cal.4th at p. 1103.)

Plaintiff urges us not to follow Castillo or Gaines on the ground that the dissent in Gaines “has cast doubt on Castillo’s resolution of the issue and appears to encourage the High Court to review and disapprove of the holding.” We disagree with plaintiff’s conclusion. And, regardless, we are bound by Gaines. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

c. trial continuances

Third, defendants’ requests for trial continuances did not toll the five-year statutory period. Certainly defendants brought two ex parte applications to continue trial. But those applications were unopposed by plaintiff; plaintiff never objected to the requests on the grounds that he would be unable to bring his case to trial within the statutory time period. In fact, at least one request was supported by plaintiff’s own attorney, Mr. Galindo. And, those requests were made early in the litigation, with one in 2015 and one in 2016.

Significantly, those two trial continuances were not the only ones in the history of this case. The first continuance was granted in 2014 after the parties stipulated to a trial continuance. Three years later, the trial court vacated a July 10, 2017, trial date after plaintiff’s fourth attorney obtained an order to be relieved as plaintiff’s counsel. Most recently, plaintiff’s current attorneys filed an ex parte application to continue trial.

Under these circumstances, we cannot conclude that defendants’ requests for trial continuances amounted to a tolling of the five-year statute.

d. motion for sanctions

Fourth, we reject plaintiff’s assertion that his motion for sanctions tolled the five-year period. Procedurally, this argument is barred for failure to raise it with the trial court. “‘“[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.” “[W]e ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. . . .”’ [Citation.]” (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131.) Because plaintiff did not argue in the trial court that his motion for sanctions tolled the five-year statute, we decline to consider it here.

Setting that aside, on the merits, plaintiff’s argument fails. Plaintiff was not diligent in seeking sanctions for alleged spoliation of evidence and/or tampering. As Judge Hess noted at the original hearing on plaintiff’s motion, the video was produced on May 8, 2014, but plaintiff did not complain about the video or otherwise seek relief for four years. And, plaintiff has not demonstrated a causal connection between the filing of the motion for sanctions and his inability to litigate the case to trial within the five-year statutory period.

New West Federal Savings & Loan Association v. Superior Court (1990) 223 Cal.App.3d 1145 (New West) does not compel a different result. The New West court held that a pending writ, which challenged the trial court’s order denying the defendant’s motion for summary judgment, tolled the five-year period because the appellate “court’s decision on the writ could have disposed of the entire action, making a trial in the case unnecessary. Had plaintiffs started the trial while the writ was pending, and had the writ been granted, the trial to that point would have been a complete waste of time, money and judicial resources. Moreover, there was the possibility the writ would have disposed of just some of the issues because the summary judgment motion alternatively sought summary adjudication of issues. Thus, if the trial had begun on all issues and the writ disposed of some of those issues, the trial would have been misdirected to that point.” (Id. at p. 1152.) Thus, it was impracticable for the plaintiffs to have proceeded to trial during the time the writ was pending. (Ibid.)

A writ pertaining to a potentially dispositive motion for summary judgment is a far cry from a motion for evidentiary sanctions. While plaintiff did request terminating sanctions, plaintiff also requested lesser sanctions that would not have resolved the entire matter.

e. alleged stipulation to later trial date

Finally, we are unconvinced by plaintiff’s contention that the parties should be deemed to have stipulated to a trial date beyond the five-year period.

Section 583.330 provides: “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.”

Here, there is no evidence of a written stipulation to extend the five-year period. And, there is no evidence of an oral agreement made in open court that was either entered into the court’s minutes or reflected in a transcript. Thus, we reject plaintiff’s contention that section 583.330 applies.

Certainly a postmediation conference was set for July 24, 2018. But there is no evidence of any agreement regarding a trial date. And plaintiff directs us to no legal authority in support of his proposition that we can deem the setting of the postmediation conference to satisfy the statutory requirements of section 583.330. (Cal. Rules of Court, rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.)

B. There is no evidence that Judge Hess tolled the five-year period

Alternatively, plaintiff argues that the trial court erred by disregarding evidence that Judge Hess had tolled or extended the original five-year period by six months. While the issue of the five-year period may have been raised before Judge Hess, there is no evidence that Judge Hess in fact tolled the statute. For that reason, Health Industries of America, Inc. v. Los Angeles County Metropolitan Transportation Authority (2002) 102 Cal.App.4th 1372 (Health Industries) is distinguishable. In that case, pursuant to the parties’ stipulation, a commissioner transferred the matter to a judge for trial, reserving for himself only discovery and other pretrial matters. (Id. at p. 1374.) The judge expressly tolled the five-year statute, finding that it would be impossible to set the matter for trial within five years. (Id. at p. 1375.) The defendants then filed a motion with the commissioner to dismiss for failure to bring the matter to trial within five years. (Ibid.) The commissioner granted the motion to dismiss, and the plaintiffs appealed. (Id. at p. 1376.) The Court of Appeal reversed, finding that the commissioner was without jurisdiction to dismiss the action for failure to bring the case to trial within five years. (Id. at p. 1378.)

Here, there is no evidence that Judge Hess expressly tolled the five-year statute. He made no findings regarding any sort of tolling. Thus, the holding in Health Industries does not apply.

It is curious that Judge Hess’s April 23, 2018, order explicitly provides that “[t]he parties are advised they are 6 months from trial.” Arguably, that comment could imply some sort of extension of the five-year deadline. But, pursuant to section 583.360, subdivision (b), the five-year statutory period cannot simply be extended. There must be compliance with the statutory definition of tolling. And there is no evidence that Judge Hess tolled the five-year statute.

C. Section 583.340 does not apply

Plaintiff asserts that he had until at least September 3, 2018, to bring his action to trial. His theory appears to be the following: There was some sort of tolling event prior to June 13, 2018, i.e., the peremptory challenge or the parties’ agreement to mediate. Because the tolling event occurred within six months of the expiration of the five-year statutory period, he was entitled to at least an additional six months from the date he filed his peremptory challenge. In support, he relies heavily upon section 583.350, which provides: “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.”

The problem with plaintiff’s contention is that the six-month extension allowed by section 583.350 presupposes that there is a legitimate tolling event, as defined by section 583.340. As set forth above, plaintiff has not demonstrated that the five-year period was tolled. Thus, the six-month rule does not apply.

III. Plaintiff’s remaining arguments

Plaintiff asserts that he was denied due process by only being given one court day to file his opposition to the trial court’s August 10, 2018, hearing on the issue of tolling. Even if plaintiff was only given a limited period of time to file his opposition, he does not explain on appeal how additional time would have aided his cause. He does not identify evidence or arguments he would have raised but was unable to do so. It follows that plaintiff has not met his burden in demonstrating that his due process rights were violated by the trial court’s order regarding the briefing schedule. (Cal. Const., art. VI, § 13; see, e.g., Krontz v. City of San Diego (2006) 136 Cal.App.4th 1126, 1141 [due process requires notice and an opportunity to be heard; when an individual claims delay has violated due process, the individual bears the burden of establishing actual prejudice]; People v. Nelson (2008) 43 Cal.4th 1242, 1250 [a criminal defendant seeking to dismiss a charge on the ground of precharging delay must demonstrate prejudice to establish a due process violation].)

All remaining arguments are moot.

DISPOSITION

The order of dismissal is affirmed. Defendants are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

LUI

_______________________________, J.

HOFFSTADT