2008-00020133-CU-PO

Teresa Raner vs. Greenback Apartments

Nature of Proceeding:      Motion to Dismiss for Failure to Bring to Trial in Five Years

Filed By:   Keowen, James C.

The motion of Defendants Lee Siew Eddie Ng (“Ng”) and Greenback Apartments
(collectively “Defendants”) for an order dismissing the action due to Plaintiff Teresa
Raner’s (“Raner”) failure to bring the action to trial within five years pursuant to CCP §
583.310 is GRANTED.

This is a premises-liability case for personal injuries.  Raner filed this action in August
of 2008.  (Ng filed his answer the following month.)  Thus, absent an exception to the
five-year statute at CCP § 583.310, Raner was required to bring the case to trial by
August of 2013.  There is no dispute that trial did not commence within that timeframe.
Instead, in response to the court’s case management order of 09/13/12, Raner
proposed several dates for trial including a date beyond the five-year deadline.
Defendants agreed to the latter date, and trial was set in 2014.

In opposition to the motion, Raner argues that the five-year statute was tolled once
Ng’s bankruptcy petition triggered an automatic stay.  As Defendants observe, Ng’s
bankruptcy petition only stayed the action against him.  This partial stay was in effect
between April 29, 2011 and October 3, 2011.  The period of the partial stay, however,
did not automatically toll the five-year period because only stays of all proceedings are
automatically excluded from the five-year computation.  (See Bruns v. E-Commerce
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Exchange, Inc. (2011) 51 Cal.4   717, 721-722, 726, 730 [construing CCP § 583.340
(b)].)

However, a partial stay can, given the plaintiff’s reasonable diligence and other
applicable circumstances, lead to an exclusion of time from the five-year period on
grounds that it was “impossible, impracticable or futile” to bring to the case to trial.
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(See Bruns, 51 Cal.4   at 730-731 [construing CCP § 583.340(c)].)  The plaintiff bears
the burden of proving that circumstances prevented her from bringing the case to trial.
(Id. at 731.)  To obtain an exclusion of time based upon impossibility, impracticality or
futility, the plaintiff must show both a causal connection to the failure to move the case
to trial as well as reasonable diligence in prosecuting the case at all stages of the
proceedings.  (Id. [quoting  Tamburina v. Combined Ins. Co. of America (2007) 147
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Cal.App.4   323, 326]; accord Brock v. Kaiser Foundation Hospitals (1992) 10
Cal.App.4th 1790, 1796, fn. 6.)  Based on the evidence and other materials submitted,
the court concludes that Raner has not met her burden.

Plaintiff’s sole argument under CCP § 583.340(c) is that she was prevented from
bringing the matter to trial within five years because she has been unable to secure
Ng’s oral deposition.  First, the court notes that the 2014 trial date, which is beyond the
five-year deadline, is the first trial date in the case.  Thus, this is not a case in which a
plaintiff sought or obtained a trial date within the five-year period and then sought or
was induced to accept a continuance.

In addition, Raner has failed to demonstrate a causal connection or reasonable
diligence.  Despite her current position that Ng’s deposition is the crux of her case, she
did not even serve notice of the deposition until May 2011, almost three years after the
complaint was filed.  Furthermore, Raner obtained an order compelling Ng to appear
for deposition while the bankruptcy stay was in effect.  That order might be void given
the automatic bankruptcy stay (of which Ng failed to notify the court in violation of CRC
3.650).  Nonetheless, it is clear that the partial stay did not deter Raner from moving to
secure Raner’s deposition and did not cause her to seek a trial date beyond the five-
year deadline.  Assuming the order compelling Ng’s deposition was valid, the fact that
Raner never subsequently moved for evidence or issue sanctions when he failed to
appear for deposition undercuts her argument that she has diligently prosecuted the
case.  On the other hand, if the court’s order compelling Ng’s deposition was invalid in
light of the automatic stay, Raner similarly failed to act diligently because she never
moved for a new order compelling deposition once the stay was lifted.  And the court
notes that, after Raner learned about the automatic stay and the stay was lifted, she
waited nine months to resume efforts to obtain Ng’s deposition.  These facts do not
demonstrate a causal connection or reasonable diligence throughout the proceedings.

In the court’s view, Raner obtained an untimely trial date in 2014 because she either
did not calendar the five-year deadline or she inadvertently lost sight of it.  Raner offers
no other credible explanation for her selection of a trial date after the deadline expired.
Absent a legal authority holding that such a misstep constitutes impossibility,
impracticability or futility under CCP § 583.340, the court concludes that the action
should be dismissed.

Finally, the court notes that it instructed the parties to submit further briefing on the
question whether Defendants waived the benefit of the five-year deadline by agreeing
to the untimely trial date proposed by Raner.  The court now finds that no such waiver
occurred.

A waiver only occurs where a party either (1) knowingly relinquishes a right or benefit
or (2) acts so inconsistently with an intent to enforce a right “as to induce a reasonable
belief that it has been relinquished.”  (Brookview Condominium Owners’ Ass’n v.
Heltzer Enterprises-Brookview (218 Cal.App3d 502, 513.)  Waiver must be proved by
clear and convincing evidence “that does not leave the matter doubtful or uncertain.”  (
Id.)

Here, the evidence supports an inference that defense counsel, like Raner’s counsel,
agreed to a 2014 trial date without realizing that such a date was beyond the five-year
deadline.  Because it appears that Defendants accepted the untimely trial date without
bearing the five-year deadline in mind, and because they are not the ones who
proposed the untimely trial date in the first place, there is at least a doubt as to
whether they intended to waive the benefit of the deadline or engaged in conduct so
inconsistent with the intent to enforce the deadline as to induce a reasonable belief
that they had relinquished their rights.  Accordingly, the clear and convincing evidence
required to establish a waiver is missing.

Conclusion

The motion is GRANTED, and the entire action shall be DISMISSED.

Pursuant to CRC 3.1312, Defendants are directed to submit a formal order for the
court’s signature, and a judgment of dismissal.