Metropolitan News-Enterprise


Monday, March 22, 2010


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Court Rules Trial Moratorium Did Not Toll Five-Year Statute




A superior court’s moratorium on civil trials will not extend the five-year limit for bringing a case to trial if the plaintiff was not ready for trial at the time of the moratorium, which ended well before the end of the five-year period, the Fourth District Court of Appeal has ruled.

Div. Two affirmed the dismissal of a Riverside Superior Court action by three customers of Superstar Sandcars against the Ontario dune buggy dealer and others. The plaintiffs accused the defendants of breach of contract, fraud, breach of warranties, and negligent repair in connection with the sale of defective products.

Justice Barton Gaut’s opinion was filed Feb. 18 and certified Thursday for publication.

Complaint Amended

The complaint in the case was filed June 6, 2003, and amended several times, most recently in January 2008. A trial setting conference, originally scheduled for February 2008, was continued, first to March 7 and then to June 13, but at a May 23 hearing on a demurrer by one defendant to the third amended complaint, the plaintiffs asked for an received a continuance of the TSC to Aug. 21.

On Aug. 6, the defendants moved to dismiss for failure to bring the case to trial within five years of filing the complaint. In granting the motion, Judge Bernard Schwartz rejected the contention that the case fell under Code of Civil Procedure Sec. 583.330’s  “impossible, impracticable, or futile” exception, which the plaintiffs argued applied because Riverside Superior Court had a congested calendar.

Schwartz found that the two formal six-week civil trial moratoriums declared by the court in 2004 and 2005, and the alleged “de facto moratorium” that existed at other times because of the crush of priority cases, did not prevent the plaintiffs from bringing the case to trial by the end of the five-year period.

He noted that other five-year cases were being tried prior to the cutoff date, that the court had added civil courtrooms in early 2008, and that the plaintiffs’ lawyers had made several appearances between the beginning of 2008 and the cutoff date and had not raised the issue of the five-year limit.

Gaut, writing for the Court of Appeal, said the trial judge did not abuse his discretion.

“A plaintiff has an obligation to monitor the case in the trial court, to keep track of relevant dates, and to determine whether any filing, scheduling, or calendaring errors have occurred,” the justice explained. “This obligation of diligence increases as the five-year deadline approaches....Here, plaintiffs took no steps to set the case for trial before the expiration of the five-year period on June 6, 2008.”

Estoppel Rejected

The jurist went on to reject the plaintiffs’ claim that the defendants were equitably estopped from relying on the five-year statute because their lawyer had informed the court, in a declaration filed prior to the five-year date, that he would be unavailable for trial until after September 2008.

The declaration cannot be reasonably construed as a waiver of the five-year statute, Gaut said.

He explained:

“Defense counsel was obligated to tell the court when he was unavailable for trial. The fact that defense counsel’s notice of unavailability extended beyond the five-year cutoff date did not constitute any misrepresentation or waiver of the five-year period.  Any ambiguity or confusion created by defense counsel mentioning his unavailability beyond the cutoff date could have been clarified by plaintiffs’ counsel, who was responsible for insuring the case was tried before the five-year period expired.”

The case is Jordan v. Superstar Sandcars, 10 S.O.S. 1458.


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