Private Mediation Does Not Toll Five-Year Statute

Tuesday, January 19, 2015

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Private Mediation Does Not Toll Five-Year Statute—C.A.

By KENNETH OFGANG, Staff Writer

Efforts at settling a case through private mediation in the closing months of the statutory five-year period for bringing the action to trial do not toll the time limit, the Court of Appeal for this district has ruled.

Div. Three Thursday certified for publication a Dec. 15 opinion, in which it held that legislation that stops the five-year “clock” if a case is sent to mediation in the last six months of the period “only applies to mediation conducted in a court-annexed alternative dispute resolution program.”

The panel affirmed Los Angeles Superior Court Judge Robert Hess’s order dismissing a wage-and-hour class action against DHL Express, Inc. and KWK Trucking, Inc.

Driver Henry Castillo sued the two companies in March 2009. He alleged that the defendants were his joint employers and that he and other class members were deprived of regular and overtime wages, meal and rest periods, accurate wage statements, and payment of wages upon termination or discharge.

The plaintiff moved for class certification about a year into the litigation. After two amendments to the complaint and additional proceedings regarding class certification, the judge certified a class with four subclasses relating to wage statements, overtime, split-shift, and termination payment claims, although the split-shift subclass was later decertified.

Status Conference

At a status conference in September 2013, the parties said they intended to engage a private mediator, and the judge set a trial setting conference for the following January. DHL, which denied that it employed members of the class, moved to decertify the class in November of that year.

The decertification motion was denied in December. The TSC was reset for February 2014, the mediation failed, and the judge—at the reset TSC—set a trial date in June 2014.

In April 2014, the defendants moved to dismiss under the five-year statute. The plaintiff opposed the motions on the ground that Code of Civil Procedure §1775.7(b) tolled the period for 151 days, the time elapsing from the day the parties advised the court they intended to pursue mediation, to the date of the TSC.

Alternatively, the plaintiff urged the judge to toll time under §583.340, either for the 151 days, or for the 116 days during which DHL was seeking to decertify the class.

On appeal, the plaintiff argued that Hess erred as a matter of law in declining to apply §1775.7(b) and/or abused his discretion in not applying equitable tolling.

Justice Luis Lavin, however, in his opinion for the panel, noted that the trial judge never ordered the case to mediation, but merely noted on the standard case management form that the parties had agreed to pursue mediation at their own expense. Indeed, the justice pointed out, Hess said at the status conference that he could not order mediation because the court’s ADR program was no longer operating, and therefore made no finding as to the amount in controversy.

The statutes only permit the court to order mediation if it finds that the amount in controversy does not exceed $50,000.

Lavin acknowledged the existence of a stipulation to continue the post-mediation status conference, reciting that “the Court ordered the Parties to attend mediation.” But the stipulation was not consistent with the orders actually made by the court, the jurist concluded, nor did the plaintiff present any authority for its contention that the stipulation was a “written instrument” whose contents were presumed true under Evidence Code §622.

Section Explained

Section 1775.7(b), Lavin went on to say, is unambiguous in its application. It was, he noted, enacted as part of legislation providing for court-ordered mediation in certain counties, as an alternative to judicial arbitration, and clearly applies only to such mediation and not to mediation generally.

In an unpublished portion of the opinion, the justice rejected the argument that Hess should have tolled the five years under §583.340, on the ground that it was “impossible, impracticable, or futile” to bring the case to trial within five years of its filing date.

Because there was no court-ordered delay for mediation, Lavin said, the plaintiff could have requested a trial date during that time period, or could have asked the defendant to stipulate to an extension. Nor did the effort to decertify the class prevent the case from being tried, because there was no court-ordered stay, the justice said.

The fact that the defendant was not ready for trial at the time of the TSC, the justice added, doesn’t change the result. He emphasized that it is the plaintiff who must act diligently in bringing the case to trial.

The case is Castillo v. DHL Express (USA), 16 S.O.S. 273.