Oswald v Landmark Builders, et al.
On June 28, 2016, they filed a lawsuit in Sonoma County, alleging construction defects. Numerous contractors were made defendants and a special master was appointed to oversee pre-trial matters. As the matter proceeded, Plaintiffs resisted discovery, failed to cooperate with depositions, requested (and obtained) several trial continuances, failed to comply with deadlines set by the special master, and generally caused delay. A little over 3 years and 8 months after Plaintiffs filed their complaint, the pandemic arrived—courts closed and conducted no business for several months. When courts re-opened, proceedings were generally held remotely. No in-person civil jury trials occurred in Sonoma County for 16 months.
Normally, California law requires that a case be dismissed unless it is brought to trial within five years of the date the complaint is filed, although that period may be extended if the plaintiff shows it was “impossible, impractical, or futile” to bring a matter to trial within that time frame. Usually this occurs when there are no available courtrooms or where there has been a period during which proceedings were stayed, preventing the plaintiff from moving the case forward. In light of the pandemic, the Judicial Council enacted Emergency Rule No. 10, which extended the 5-year time period by six months for civil cases. Thus the deadline for Plaintiffs to start trial was December 28, 2021.
While courts were open but proceedings were being conducted remotely and before civil trials had resumed in Sonoma County, this case was set for trial beginning July 23, 2021. But in April 2021, Plaintiffs moved to continue the trial date to December 17, 2021 or a date “thereafter” which would be convenient for the court. The motion was granted and trial was set for a date in January 2022. While the Plaintiffs asked the trial court to waive the five-and-a-half-year deadline, the court’s order did not address that issue. Meanwhile, Plaintiffs continued to be obstreperous and noncooperative with pretrial discovery. As it turned out, civil jury trials resumed in Sonoma County in July 2021. Regardless, Plaintiffs did not take any action to advance the January 2022 trial date.
After December 28, 2021 but before the January 2022 trial date, Vogl Meredith Burke & Streza attorneys Kurt Bridgman and Don Schaefer moved for dismissal for Plaintiffs’ failure to bring the matter to trial within five-and-a-half years of filing the complaint. Other defendants filed similar motions. The trial court granted the motions, noting Plaintiffs had not been diligent in bringing their case to trial (the trial court’s order mentioned “active malingering”) and so were not entitled to any tolling or extension of the deadline. Plaintiffs appealed. Vogl Meredith Burke & Streza attorney Guy Stilson handled the matter for the firm’s client in the appellate court.
On appeal, Plaintiffs claimed their lack of diligence was immaterial because the pandemic precluded civil jury trials for 16 months. Defendants argued that diligence was required, that Plaintiffs had not been diligent before the pandemic began and continued to not be diligent even after courts reopened, citing Plaintiffs’ continued noncooperation with the discovery process and Plaintiffs’ failure to seek to advance the trial date once civil jury trials resumed in Sonoma County in July 2021.
In a published decision (97 Cal.App.5th 240) the Court of Appeal affirmed the dismissal of Plaintiffs’ case. The Court of Appeal held that the question of impossibility, impracticability, or futility of bringing an action to trial is a question of fact best resolved by the trial court and the plaintiff bears the burden of proof on the issue. The Court of Appeal further held that unavailability of courtrooms does not automatically lead to a finding of an impossible or impractical circumstance, the trial court must determine the extent to which the unavailability of courtrooms for trial interfered with a plaintiff’s ability to move the case to trial during the relevant period, and the 16 month period when courtrooms were closed did not make it impossible or impractical for Plaintiffs to prosecute their suit as discovery was available through virtual platforms and emergency rules allowed for remote depositions yet Plaintiffs made no progress in producing their expert witnesses for deposition and had “not even done the simplest, most readily available task” of completing their own depositions. Additionally, Plaintiffs failed to object to setting the trial to begin after deadline, never sought to modify the trial setting order, never sought to advance the trial date even after courtrooms fully opened, and did not show they could not have asked for a trial date before the deadline expired.