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There's the 5 Second Rule, But Have you Heard of the 5 Year Rule?

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They’re called deadlines for a reason. Usually, because something really bad could happen if you fail to meet the deadline.

For those in the construction industry, you probably aware of the “deadline” to bring a claim for latent defects (10 years from substantial completion); the deadline to file suit to foreclose on a mechanics lien (90 days from the date of recording the mechanics lien), and the deadline for serving a preliminary notice (generally, 20 days from the date labor and/or materials are first furnished).

Well, here’s another deadline: Under Code of Civil Procedure section 585.310, you have 5 years after a complaint is filed to bring a case to trial, absent the court granting relief. I could leave it at that, but in the next case, Oswald v. Landmark Builders, Inc., 97 Cal.App.5th 240 (2023), was too interesting to pass up.

The Oswald Case

On June 28, 2016, homeowners Jack Oswald and Anne Seley sued their general contractor and its subcontractors alleging construction defects at their home. Answers and cross-complaints were filed and on February 2017 the trial court determined the case to be complex and appointed a discovery master. A discovery master, for those who may be unfamiliar, is usually a retired judge or third-party lawyer appointed by a court to oversee discovery in a case such as written discovery, depositions, site inspections, etc.

After the case was filed, trial in the case which was originally scheduled for July 8, 2019 was re-set or continued seven times: 

  1. At the end of 2018, due to the homeowner’s failure to comply with an earlier discovery order,  the court re-set the trial date from July 8, 2019 to December 6, 2019.

  2. In June 2019, due to discovery deadlines not having been met, the court re-set the trial date from December 6, 2019 to April 24, 2020.

  3. In November 2019, due to continued delays in completing discovery, the court re-set the trial date from April 24, 2020 to November 6, 2020.

  4. In July 2020, at the recommendation of the discovery master and with the agreement of counsel, the court re-set the trial date from November 6, 2020 to March 19, 2021.

  5. In November 2020, again at the recommendation of the discovery master and with the agreement of counsel, the court re-set the trial date from March 19, 2021 to July 23, 2021.

  6. In March 2021, the homeowners filed a motion to continue the trial to December 17, 2021 or the earliest convenient date afterwards, which was granted by the court, continuing the trial from July 23, 2021 to January 28, 2022. Note: The homeowners noted in their motion that the deadline to bring the case to trial was December 28, 2021 although, in its order, the Court did not reference the deadline or that the court was waiving the deadline.

  7. In December 2021, the homeowners filed another motion to continue the trial, which was granted by the court, continuing the trial from January 28, 2022 to April 22, 2022

After the last trial continuance, several defendants filed motions seeking mandatory dismissal under Code of Civil Procedure section 583.310. The trial court, while noting that the country was dealing with the COVID 19 pandemic during a portion of the nearly six years the case pending, granted the motions finding that the homeowners had failed to show that the COVID 19 pandemic made it impractical to bring the case to trial within 5 years or that they exercised reasonable diligence in prosecuting the action.

The homeowners appealed. 

The Appeal 

On appeal, the 1st District Court of Appeal noted that, while Code of Civil Procedure section 583.310 requires that cases be brought to trial within 5 years of the filing of a compliant, that the courts took into consideration the impacts of the COVID 19 pandemic and enacted Rule 10 of the California Rules of Court which extended the 5 year deadline by extending it an additional 6 months for cases filed on or before April 6, 2020. Thus, explained the Court, the deadline for the homeowners to bring the case to trial was December 28, 2021.

However, noted the Court of Appeal, trial courts have the discretion to exclude time during which bringing an action to trial was impossible, impractical, or futile despite reasonable diligence. The burden, in such cases explained the Court, is on the plaintiff to show circumstances showing “impossibility, impracticability, or futility; a causal connection between the circumstances and failing to move the case to trial; and reasonable diligence in moving the case to trail at all stages of the proceedings.”

In response to the homeowner’s argument that the trial court should have deducted 16 months of courtroom closures – from March 16, 2020 to July 1, 2021 due to the COVID 19 pandemic – and 42 days between the homeowner’s requested trial dated of December 17, 2021 and January 8, 2022 when the court continued the trial. However, “[t]he unavailability of courtrooms for trial,” explained the Court of Appeal, “does not automatically lead to a finding of [ ] impossible or impractical circumstance[s].” And here, explained the Court, “plaintiffs’ failure to timely commence trial was due to a lack of reasonable diligence, i.e., they were never ready for trial during the relevant periods” and “[w]e will not accept plaintiffs’ repeated invitation to adopt the absurd rule that time to commence trial is tolled under section 583.340(c) whenever a courtroom is not available for trial without consideration of a plaintiff’s readiness for trial” (emphasis in original). Ouch!

Further explained the Court of Appeal as to the COVID 19 pandemic:

Although pretrial discovery was available through “virtual platforms such as Blue Jeans and Zoom, and emergency rules allowing for remote depositions,” during the relevant period plaintiffs made no progress in producing their expert witnesses for deposition, and thy had “not even done the simplest, most readily available task” of completing their own depositions. Under these circumstances, the court found not only a lack of reasonable diligence, but “active malingering.”


Finally, ex the Court of Appeal as to trial continuance to January 28, 2022:

Plaintiffs cannot foist onto the court their responsibility to timely bring their case to trial. The obligation lies solely on plaintiffs, who bore the responsibility to identify any problems concerning the scheduling of the trial and seek an order rescheduling the trial date to a date within the allowed five-and-one-half years. Counsel did not ask for an earlier trial date on the motion to continue the trial date, never did so thereafter, and has made no showing that doing so would have been futile.


So, there you have it: The 5 year rule. The key takeaways in this case being: (1) Just because courtrooms aren’t available doesn’t mean that you don’t have to comply with the 5 year rule, particularly, when the facts show that you could have or should have brought the case to trial earlier; and (2) Just because you mention the 5 year rule to the court doesn’t mean that you’re off the hook from your affirmative obligation to request that the court explicitly waive the 5-year deadline.

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