Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate No. RIC373809, Gary B. Tranbarger, Judge.
Daley & Heft, Lee H. Roistacher and Robert R. Heft for Petitioners.
No appearance for Respondent.
Linehan & Associates and Andrew F. Linehan for Real Party in Interest.
OPINION
McKINSTER, Acting P. J.
In this matter we have reviewed the petition, the opposition, and the reply thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Under Code of Civil Procedure section 583.310, an action must be brought to trial within five years after it is filed unless, under Code of Civil Procedure section 583.340, subdivision (c), “[b]ringing the action to trial . . . was impossible, impracticable, or futile.”
The time during which one of these three conditions exists is excluded from the five-year period. (Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328 (Tamburina).) Code of Civil Procedure section 583.340, subdivision (c), must be liberally construed, consistent with the policy favoring trial on the merits. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270 (Sanchez); Chin v. Meier (1991) 235 Cal.App.3d 1473, 1477.)
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. (Tamburina, supra, 147 Cal.App.4th at p. 328.)
The determination of whether prosecution of an action was impossible, impracticable, or futile during the five-year limitation period is generally a matter within the trial court’s discretion. Such determination will not be disturbed on appeal unless an abuse of discretion is shown. (Sanchez, supra, 109 Cal.App.4th at pp. 1269, 1271.)
In Tamburina, the court stated that in determining whether the impracticability exception applied, the court must find the following three factors: (1) a circumstance of impracticability; (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. (Tamburina, supra, 147 Cal.App.4th at p. 328.) The plaintiff has the burden of proving these factors. (Id. at pp. 329, 333, 336.)
The Tamburina court added, however, that “the requirement that a plaintiff exercise reasonable diligence at all stages of the proceedings must still be met to apply the impossibility, impracticability or futility exception to the five-year deadline.” (Tamburina, supra, 147 Cal.App.4th at p. 334.)
Petitioners concede that the five-year period was extended by 404 days due to the stay issued by this court. Real party in interest contends that time was extended a further 312 days for the time she was in bankruptcy. She contends that she was not required to show due diligence because the five-year period was extended a total of 716 days and will not expire until April 18, 2009. Thus, the five-year statute expired on May 27, 2008.
We agree with petitioners that real party in interest failed to exercise reasonable diligence in trying to get this case to trial and did not meet the three-prong Tamburina test that this court adopted in DeSantiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365 (DeSantiago).
Because it was the plaintiff, real party in interest, who filed bankruptcy, there was no automatic bankruptcy stay. The crucial question then is whether it was impossible or impractical or futile for real party in interest to get the case to trial during the pendency of the bankruptcy proceedings. It was real party in interest’s burden to prove the Tamburina factors and she failed to do so. While petitioners’ intervention might have prevented an earlier close of bankruptcy, real party in interest did not show that the bankruptcy prevented her from bringing this case to trial. It does not appear that real party in interest took any action to seek relief to prosecute the action during the time of the bankruptcy. Certainly, the entire time in bankruptcy should not be excluded because the whole question of abandonment did not arise until several months into the matter. Most importantly, real party in interest had three years following the close of bankruptcy to get the case to trial, but failed to exercise reasonable diligence in doing so. (DeSantiago, supra,155 Cal.App.4th at p. 376; Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 165.)
Rather, real party in interest requested continuances to conduct discovery, never asked for a special setting, and accepted a trial date in 2009. Whether reasonable diligence is considered in the context of determining the element of causal connection or as an independent fact, it is a critical factor in determining whether the impracticability except applies. (DeSantiago, supra,155 Cal.App.4th at p. 375.)
Finally, we must mention the trial court’s assumption that real party in interest would not have been able to try this case before the expiration of the five-year period due to the chronic and severe congestion in the Superior Court of Riverside County. While we appreciate the court’s familiarity with the condition of its calendar, it could not find the impracticability exception applied where real party in interest failed to make a reasonable effort by requesting a special setting, for example. (Cf. DeSantiago, supra,155 Cal.App.4th at p. 371.)
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order denying the motion to dismiss this action and to issue a new order granting the motion.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Costs are awarded to Petitioners.
We concur: RICHLI, J. KING, J.