Filed 4/20/17 Haney v. Aguirre CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

BRUCE PATRICK HANEY,

Plaintiff and Appellant,

v.

R. AGUIRRE et al.,

Defendants and Respondents.

F072826

(Super. Ct. No. 07CECG03665)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Judge.
Bruce Patrick Haney, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Diana Esquivel, Deputy Attorneys General, for Defendants and Respondents.
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Plaintiff appeals from the dismissal of his action, entered after the trial court granted defendants’ motion to dismiss for failure to bring the action to trial within five years. The trial court excluded from its calculation of the five-year period the time during which prosecution of the action was stayed by its order. It concluded, however, that plaintiff had not established any further period of time should be excluded on the ground bringing the action to trial was impossible, impracticable or futile at that time. We conclude the trial court did not abuse its discretion in granting the motion. Accordingly, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2007, plaintiff filed his complaint against defendant, Correctional Officer R. Aguirre; on March 26, 2008, he filed an amended complaint, adding as a defendant Sergeant D. Carlson. Plaintiff alleged that, while he was an inmate at Pleasant Valley State Prison, Aguirre broke plaintiff’s wrist by twisting his arm while handcuffing him, and Carlson denied him medical attention for his injury. The action was set for trial on May 20, 2009, but that date was later vacated. Trial was subsequently set for February 5, 2010. On that date, defendants moved to dismiss the action or vacate the trial date because plaintiff could not be present for trial. The trial court denied the motion to dismiss, but again vacated the trial date.
On March 11, 2010, the trial court determined it could not compel the prison in Kern County in which plaintiff was then housed to transport him to Fresno County Superior Court to attend the trial. It therefore stayed the action pending plaintiff’s release from prison, which was anticipated to occur in April 2012, in order to afford him an opportunity to be present at trial.
On May 22, 2012, after plaintiff was released from prison, the trial court lifted the stay, allowing the action to proceed. In January 2013, the trial court set the matter for trial on March 17, 2014.
In April 2013, plaintiff was arrested and incarcerated in the Los Angeles County jail. He did not advise opposing counsel or the trial court of this circumstance until February 2014. The March 17, 2014, trial date was vacated, after both parties requested it be continued or vacated. On December 15, 2014, at a case management conference which plaintiff did not attend, the trial court set the matter for trial on January 25, 2016. Plaintiff did not subsequently object to the trial date or move to advance it, although it was past the five-year date for both defendants. On March 24, 2015, plaintiff was convicted of attempted voluntary manslaughter and assault with a deadly weapon, and was sentenced to prison.
On July 8, 2015, defendants moved to dismiss this civil action for failure to bring it to trial within five years, as extended by the stay. Plaintiff opposed the motion. The trial court granted the motion and dismissed the action. Plaintiff appeals.
DISCUSSION
“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) If an action is not brought to trial within this time period, it must be dismissed on motion of the defendant, unless an exception expressly provided by statute applies. (§ 583.360.) Section 583.340 sets out exceptions:
“In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:
“(a) The jurisdiction of the court to try the action was suspended.
“(b) Prosecution or trial of the action was stayed or enjoined.
“(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”
The action was stayed by the trial court from March 11, 2010, until May 22, 2012. The trial court excluded that period in calculating the five-year period within which the action was required to be brought to trial. Plaintiff contended in the trial court, as he does here, that the trial court should have excluded a further period during which bringing the action to trial was “impossible, impracticable, or futile.” (§ 583.340, subd. (c).)
“ ‘The question of impossibility, impracticability, or futility is best resolved by the trial court, which “is in the most advantageous position to evaluate these diverse factual matters in the first instance” [Citation.] The plaintiff bears the burden of proving that the circumstances warrant application of the … exception. [Citation.] … The trial court has discretion to determine whether that exception applies, and its decision will be upheld unless the plaintiff has proved that the trial court abused its discretion. [Citations.]’ [Citation.] Under that standard, ‘[t]he trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 (Gaines).)
“ ‘ “Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court’s calendar [is] not within the contemplation of these exceptions.” ’ [Citations.] This rule reflects the Legislature’s understanding that a reasonably diligent plaintiff should be able to bring the case to trial within the relatively lengthy period of five years notwithstanding such ordinary delays.” (Gaines, supra, 62 Cal.4th at p. 1101.) The question, then, is whether, and to what extent, “conditions interfered with the plaintiff’s ability to ‘mov[e] the case to trial’ during the relevant period.” (Ibid.) “[C]ase law … has long held that ‘[f]or the tolling provision of section 583.340[(c)] to apply, there must be “a period of impossibility, impracticability or futility, over which plaintiff had no control,” ’ because the statute is designed to prevent avoidable delay.” (Id. at p. 1102.)
Determining whether the exception for impossibility, impracticability or futility applies “requires a fact-sensitive inquiry and depends ‘on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of reasonable diligence in overcoming those obstacles.’ [Citation.] ‘ “[I]mpracticability and futility” involve a determination of “ ‘excessive and unreasonable difficulty or expense,’ ” in light of all the circumstances of the particular case.’ ” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731.)
In order for the impossibility, impracticability or futility provision to toll the running of the five-year period for bringing the action to trial, the plaintiff must satisfy three requirements: (1) there was a circumstance of impossibility, impracticability or futility; (2) the circumstance had a causal connection to the plaintiff’s failure to move the case to trial; and (3) the plaintiff was reasonably diligent in prosecuting the case at all stages of the proceedings. (Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 326 (Tamburina).)
Plaintiff failed to demonstrate that there was a circumstance of impossibility, impracticability or futility that caused him to be unable to bring his case to trial within the five-year period. He also failed to show diligence throughout the five-year period for bringing his case to trial.
A. Circumstance of impossibility
In his briefs, plaintiff has identified two circumstances he claims made it impossible for him to bring his case to trial within the five-year period. First, he claims defense counsel contacted the court in which criminal charges were pending against him and somehow interfered with the criminal case, which somehow prevented him from bringing this civil case to trial. His claim is apparently based on a declaration filed by defense counsel in March 2014. The declaration stated that defense counsel had her secretary contact the clerk of the Los Angeles County Superior Court, where the criminal case against plaintiff was then pending. It stated: “The Clerk verified that plaintiff is facing charges for attempted murder and assault with a deadly weapon. Given the charges pending against him, he is not expected to be released from custody anytime soon.”
Plaintiff asserts it was illegal or unethical for defense counsel to contact the Los Angeles court to inquire about the status of his criminal case. He asserts he “was never able to come to any agreement with the prosecution after that” and he “was unable to make any plea bargains which would have allowed [him] to settle his criminal case, in order for him to attend his civil trial.” Plaintiff admits, however, there was no evidence defense counsel contacted the district attorney’s office about his criminal case.
Plaintiff cites no authority for the proposition that it was illegal, unethical, or otherwise wrongful for defense counsel to have her secretary contact the court to inquire about the status of his criminal case. He cites no evidence in the record that defense counsel herself contacted the court. Plaintiff cites no evidence defense counsel or anyone acting on her behalf interfered in any way with the criminal case or did anything other than inquire about the status of the case. He cites no evidence that, in the absence of the secretary’s telephone call to the Los Angeles court, he would have been able to bring his civil case to trial within the five-year period.
Second, plaintiff claims that, in 2010 or 2011, while he was at Corcoran State Prison in Kings County, he was told his security level had changed and he was to be moved to Pleasant Valley State Prison in Fresno County. From there, he contends, he could have been transported to the Fresno County Superior Court for the trial of this civil action. However, he was later told that there was a mistake in his security level, and he would remain at Corcoran.
This occurred during the period in which the trial court’s stay of the civil action was in effect. Thus, this time period was already excluded from the calculation of the five-year period because of the stay.
Because plaintiff did not demonstrate there was a circumstance of impossibility, impracticability or futility that prevented him from bringing his case to trial (in addition to the time period during which the action was stayed), the trial court did not abuse its discretion by granting defendant’s motion to dismiss for failure to bring the action to trial within the five-year period, as extended by the stay.
B. Diligence at all stages of the proceedings
The plaintiff has an obligation to be diligent in bringing his case to trial at each stage of the proceeding. (Salinas v. Atchison, Topeka & Santa Fe Ry. Co. (1992) 5 Cal.App.4th 1, 14.) “To establish reasonable diligence, the plaintiff must be able to demonstrate diligence in pursuit of his or her duty to expediate the resolution of the case at all stages of the proceedings. [Citations.] Central to this duty is the specific duty to use every reasonable effort to bring the matter to trial within the five-year period.” (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340.)
The plaintiff’s “duty of diligence applies ‘at all stages of the proceedings,’ and the level of diligence required increases as the five-year deadline approaches.” (Tamburina, supra, 147 Cal.App.4th at p. 336.) “ ‘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.’ ” (Gaines, supra, 62 Cal.4th at p. 1104.) “ ‘ “The burden is upon the plaintiff to call to the attention of the court the necessity for setting the trial for a time within the period fixed by” ’ ” the five-year statute. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 434.) “[T]he burden of keeping track of the relevant dates should properly fall on plaintiffs, because it is they who have the interest, and the statutory duty under section 538.310, to timely prosecute their cases.” (Ibid.)
Plaintiff did not present evidence in the trial court showing diligence in pursuing his action after he was released from prison and the stay of the action was lifted in May 2012. After the stay was lifted, plaintiff did not immediately request that the action be set for trial. Between May 2012 and January 7, 2013, hearings were held regarding plaintiff’s failure to serve two other defendants; plaintiff did not appear at all of the hearings, and he eventually dismissed the unserved defendants. At a case management conference on January 7, 2013, the trial court set the matter for trial on March 17, 2014. Subsequently, both parties requested a continuance of the trial date, and the trial court vacated the date and set a case management conference for August 25, 2014. That conference was continued at plaintiff’s request to December 15, 2014.
Excluding the time during which the action was stayed, the five-year period for bringing the action against Aguirre to trial expired on January 12, 2015; the time to bring the action against Carlson to trial expired on June 8, 2015. At the case management conference on December 15, 2014, the trial court set the action for trial on January 25, 2016, a date beyond the expiration of the five-year period for both defendants. Plaintiff did not appear at the case management conference, so he did not object immediately to the new trial date or notify the trial court that the date was past the five-year deadline for bringing the case to trial. Plaintiff did not subsequently move to advance the trial date.
Because plaintiff did not demonstrate that he exercised diligence in prosecuting the action at all stages, the trial court did not abuse its discretion by granting defendants’ motion to dismiss for failure to bring the action to trial within the applicable five-year period.
DISPOSITION
The judgment of dismissal is affirmed. Defendants are entitled to their costs on appeal.



HILL, P.J.
WE CONCUR:



GOMES, J.



FRANSON, J.