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Court of Appeal:
Emergency Rule Plus Statute Doesn’t Block Dismissal
Opinion Says That in Light of Pandemic, Plaintiff Had an Extra Six Months to Bring Case to Trial; Rejects Contention That There Was a Six-Month Extension, Also a Six-Month Statutory Grace Period
By a MetNews Staff Writer
A litigant whose personal injury action was dismissed based on a failure to bring it to trial within five years has failed to persuade the Fifth District Court of Appeal that an emergency rule, promulgated by the Judicial Council in light of the COVID-19 pandemic, in combination with a Code of Civil Procedure section, rendered the trial court’s decision erroneous.
The per curium opinion was filed Jan. 12 and certified for publication on Thursday.
Plaintiff Mary Ables filed her action July 24, 2015. Code of Civil Procedure §583.310 requires an action to “be brought to trial within five years after the action is commenced against the defendant.”
On Nov. 15, 2019, Kern Superior Court Judge David R. Lampe heard Ables’s ex parte motion that the trial, set for Dec. 2, 2019, be continued. The minute order recites:
“Jury Trial/Final Case Management Conference are continued to March 8, 2021 at 9:00 a.m. in Department 11.” The defendants—Central Freight Express, Inc., A. Ghazale Brothers, Inc. and Joseph Abou- Ghazale—moved for dismissal based on a failure to bring the action to trial within five years. Lampe granted the motion on March 1, 2021, noting that when the trial date was continued in 2019, March 8, 2021 “was the first available normal date for trial setting by the court.”
Court Wasn’t Alerted
He commented:
“The court was never apprised that there was a five-year dismissal issue. Had the court been so advised the court would have accommodated trial within the five-year deadline. The court has been open for trial since October of 2020, notwithstanding the pandemic, and the court certainly had a window to get the case to trial had the court been notified.”
On appeal, Ables argued the applicability of the Judicial Council’s Emergency Rule 10(a), adopted effective April 6, 2020. It provides:
“Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total of five years and six months.”
The opinion points out: “The March 2021 trial date, however, fell five years and seven months after the action was commenced.”
Statute Cited
However, Ables paired her reliance on Rule 10(a) with an invoking of Code of Civil Procedure §583.350, which says:
“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.”
Ables reasoned that under §583.350, she had six months to bring the action to trial after the six-month extension under Rule 10(a).
Contention Rejected
The Code of Civil Procedure section has no such effect, the Fifth District said, explaining:
“The Judicial Council of California adopted Emergency Rule 10(a). That Rule is located in Appendix I of the Rules of Court. Because they are enacted by the Judicial Council and not by the Legislature, the Rules of Court are not statutes.”
The justices added:
“In this case, the trial court found that, with the six-month extension pursuant to Emergency Rule 10(a), Abies had until January 24, 2021 to bring her civil action to trial. Because Emergency Rule 10(a) is not a statute but an administrative rule, it did not extend Ables’s deadline pursuant to statute and did not trigger section 583.350’s extra six-month period. Ables’s failure to establish a statutory ‘extension, excuse, or exception’ is fatal to her appeal, and the trial court properly dismissed her case.”
The case is Ables v. A. Ghazale Brothers Inc., F082670.
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