Stueve v. Buchalter Nemer

Filed 1/18/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUTH McCLAMMA STUEVE et al.,

Plaintiffs and Appellants, G052779

v. (Super. Ct. No. 30-2010-00411651)

BUCHALTER NEMER et al., OPINION

Defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, Robert J.
Moss, Judge. Reversed.
Barnes Law, Robert E. Barnes and Keobopha Keopong for Plaintiffs and
Appellants.
Greenberg Gross, Wayne R. Gross, Alan A. Greenberg, Evan C. Borges
and Bret D. Hembd for Defendant and Respondent.
Sinclitico & Burns, Dennis J. Sinclitico, Hugh R. Burns and Daniel R.
Mayer for Defendants and Respondents.
Bienert, Miller & Katzman, Thomas H. Bienert, Jr., Michael R. Williams
and Ali Matin for Defendants and Respondents.
Edgerton & Weaver, Samuel Y. Edgerton III, Theodore C. Peters and
Sabryne Coleman for Defendants and Respondents.
 Generally, an action must be “brought to trial” within five years of the
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filing of a civil complaint. (Code Civ. Proc., § 583.310, et seq.) If the time period is not
tolled by statute, the case must be dismissed. (§§ 583.340, 583.360.) “In an action tried

to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Bruns v.

E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723 (Bruns), italics added.)
Here, with just three days remaining before the fifth anniversary of the

filing of a civil complaint, a panel of 75 prospective jurors assembled in a courtroom for

jury selection (voir dire). The court clerk administered an oath and the panel swore to

give truthful answers. Seven days later, while voir dire was still in progress, defendants

moved to dismiss under the five-year dismissal statute. The trial court granted the

motion, finding that the jury had not yet been “impaneled and sworn.”

We reverse. The jury was “impaneled” when the panel of prospective

jurors assembled in the courtroom for voir dire. The panel was “sworn” when the

prospective jurors took an oath to respond truthfully. Accordingly, the action was, in
fact, “brought to trial” within five years of the filing of the civil complaint. Thus, the trial

court should not have granted defendants’ motion to dismiss.

I
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2010, plaintiffs filed a civil complaint. Plaintiffs are the

“heirs” (in lay terms) to the Alta Dena Dairy fortune built by the Stueve family.

Defendants are several attorneys and law firms. The causes of action generally include
allegations of fraud, as well as claims of negligent hiring and supervision.

1
Further undesignated statutory references will be to the Code of Civil Procedure.

2
 On Monday, September 21, 2015, the trial court began the jury selection

process in a large courtroom it had reserved for that purpose. A panel of 75 prospective
jurors arrived in the large courtroom. The court clerk administered an oath, the parties

gave “mini-opening” statements, and voir dire began.

On Wednesday, September 23, voir dire was still continuing. In the late
afternoon, the trial court explained to the prospective jurors that the large courtroom was

unavailable on Thursday, and that the court had other duties on Friday. The court

declared a recess and adjourned until the following Monday.

On Monday, September 28, defendants filed a motion to dismiss the case

on the grounds that the action had not been brought to trial within five years of the filing

of the initial complaint (September 24, 2010). (§§ 583.310, 583.360.) The trial court

excused the jurors, ordered further briefing, and conducted hearings on the motion.

On October 9, the trial court entered an order of dismissal. The court found

that the action had not been brought to trial within five years. “Bruns is a California
Supreme Court case from 2011 and states in no uncertain terms, ‘In an action tried to a

jury, the action is brought to trial when the jury is impaneled and sworn.’” (Bruns, supra,

51 Cal.4th at p. 723, italics added.) Further, the trial court found that the five-year time
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period had not been statutorily tolled, except as to defendant Berger Kahn.

2
The trial court had, at an earlier point, dismissed defendant law firm Berger Kahn from
the action. Plaintiffs appealed and were ultimately successful in bringing Berger Kahn
back into the lawsuit prior to trial. (See Stueve Bros. Farms, LLC v. Berger Kahn (2013)
222 Cal.App.4th 303.) The court therefore tolled the five-year deadline for the period of
time (22 months) it had lost jurisdiction, but only as to Berger Kahn. (§ 583.340, subd.
(b).) Given our ruling that the action was, in fact, brought to trial within five years, we
need not consider plaintiffs’ alternative claims that the court improperly refused to toll
the action as to the remaining defendants. (§ 583.340, subd. (c).)

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 II
DISCUSSION
The interpretation and application of statutes are questions of law that are

reviewed de novo. (Redevelopment Agency v. County of Los Angeles (1999) 75
Cal.App.4th 68, 74.) As always, our fundamental task is to determine the Legislature’s

intent. (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268.) We first look at the words

of the statute, giving them their plain and ordinary meaning. (Ibid.) But we do not look

at the words of a statute in isolation. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) Rather,

we look at the entire statutory scheme in order to determine the meaning of words taken

in context. (Ibid.) If the language is clear, we need not turn to external sources such as a

statute’s legislative history. (MacIsaac v. Waste Management Collection & Recycling,

Inc. (2005) 134 Cal.App.4th 1076, 1083 [“If the statutory language is clear and

unambiguous, our task is at an end, for there is no need for judicial construction”].)

Here, there is no dispute as to the facts. On September 24, 2010, plaintiffs

filed a civil complaint. On September 21, 2015, jury selection began. On September 28,

defendants moved to dismiss because the action had not yet been “brought to trial” within
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five years. (§ 583.310, et seq.) The trial court agreed and dismissed the action, relying

on Bruns: “In an action tried to a jury, the action is brought to trial when the jury is

impaneled and sworn.” (Bruns, supra, 51 Cal.4th at p. 723, italics added.)

Thus, we are presented with a pure question of law: is a jury “impaneled

and sworn” when a panel of prospective jurors assembles in a courtroom for voir dire and

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“An action shall be brought to trial within five years after the action is commenced
against the defendant.” (§ 583.310, italics added.) “An action shall be dismissed by the
court on its own motion or on motion of the defendant, after notice to the parties, if the
action is not brought to trial within the time prescribed in this article.” (§ 583.360, subd.
(a), italics added.)

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is sworn to tell the truth, or does that occur later when the actual trial jurors are sworn?

We hold that a jury is “impaneled and sworn” in the first instance. We reach that
conclusion based on: 1) how the words “impaneled and sworn” are used in the relevant

statutes; and 2) how the phrase has been applied and understood in the relevant case law.

A. “Impaneled and Sworn” As Used in the Relevant Statutes

The process of selecting a jury is thoroughly laid out in the Trial Jury

Selection and Management Act (the Act). (§ 190 et seq.) Although the Act is included in

the Code of Civil Procedure, the Act encompasses both criminal and civil trials. (§ 192.)

Within the Act, the Legislature has defined the meaning of several words and phrases.

(§ 194.) “In examining the language [of statutes], the courts should give to the words of

the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself

specifically defines those words to give them a special meaning [citations].” (Halbert’s

Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1239.)
By statute, the jury selection process begins with a “source list” of names.

(§§ 194, subd. (m), 197.) A group of “prospective juror[s]” are randomly selected from

the source list. (§§ 194, subds. (i) & (m), 197.) An appropriate number of prospective

jurors are then summoned to court. (§ 208.) From that group, the jury commissioner

then randomly selects “jury panels to be sent to courtrooms for voir dire.” (§ 219, subd.

(a), italics added.) “‘Trial jury panel’ means a group of prospective jurors assigned to a

courtroom for the purpose of voir dire.” (§ 194, subd. (q), italics added.)

Once the trial jury panel is assembled in a courtroom, the court administers

an “oath of truthfulness.” (See People v. Carter (2005) 36 Cal.4th 1114, 1174.) “Prior to
the examination of prospective trial jurors in the panel assigned for voir dire, the

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following perjury acknowledgement and agreement shall be obtained from the panel,

which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do
you, and each of you, understand and agree that you will accurately and truthfully

answer, under penalty of perjury, all questions propounded to you . . . in the matter

pending before this court . . . .’” (§ 232, subd. (a), italics added.)
Once voir dire is completed, a second oath to “try the cause” is

administered to the actual trial jurors: “As soon as the selection of the trial jury is

completed, the following acknowledgment and agreement shall be obtained from the trial

jurors, which shall be acknowledged by the statement ‘I do’: [¶] ‘Do you and each of

you understand and agree that you will well and truly try the cause now pending before

this court, and a true verdict render according only to the evidence presented to you and

to the instructions of the court.’” (§ 232, subd. (b).) “‘Trial jurors’ are those jurors

sworn to try and determine by verdict a question of fact.” (§ 194, subd. (o).)

The word “impaneled” is not defined within the Act, but generally means:
“The act of the clerk of the court in making up the list of jurors who have been selected

for the trial of a particular cause. All the steps of ascertaining who shall be the proper

jurors to sit in the trial of a particular case up to the final formation.” (Black’s Law Dict.

(6th ed. 1990) p. 752, cols. 1 & 2.) The word “sworn” is similarly not defined within the

Act, but generally means providing an affirmative response to an oath or affirmation.

(§ 2093 [a judge or a court clerk may “administer oaths or affirmations”].)

Based on the foregoing, we conclude that a jury is impaneled when the jury

trial panel of prospective jurors is assembled in a courtroom for the purposes of voir dire.

We note that the word “panel” is used consistently throughout the statutes and refers
exclusively to the “prospective juror[s],” not the final “trial jurors.” Further, we conclude

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that a panel is sworn when the court (usually the court clerk) administers the initial oath

of truthfulness and the panel collectively responds, “I do.” Although the actual trial
jurors will ultimately be sworn again—this time to try the cause—that does not negate the

fact that the panel was sworn at the beginning of voir dire.

Accordingly, in this case the jury was impaneled and sworn on September
21, 2015, at the beginning of voir dire. That occurred within five years of the filing of

the civil complaint (September 24, 2010). Thus, the action was, in fact, “brought to trial

within five years” as required under the statute. (§ 583.310.)

B. “Impaneled and Sworn” As Applied and Understood in Case Law

Given the draconian remedy of dismissal, the question of when a case must

be “brought to trial” has been the subject of extensive litigation, both in civil and criminal
4
law. But we need only scrutinize five relevant cases in order to determine precisely

when a “jury is impaneled and sworn.” (Bruns, supra, 51 Cal.4th at p. 723.)
To start with, it is well settled that a jury trial begins when the jury is

impaneled. (Silcox v. Lang (1889) 78 Cal.118, 124 (Silcox).) In Silcox, the plaintiffs lost

at trial and appealed the trial court’s denial of one of their preemptory challenges during

voir dire. (Id. at pp. 120-124.) The resolution of that issue turned on whether the trial

court’s ruling occurred “at ‘the trial.’” (Id. at p. 124.) Our Supreme Court’s holding

from 127 years ago is remarkably prescient: “The impaneling of a jury is a part of the

4
The same “brought to trial” phrase appears in both the Code of Civil Procedure and the
Penal Code. (§ 583.310; Pen. Code, § 1382, subd. (a).) Though the time frames are
drastically different. Generally, absent a waiver, a criminal defendant must be “brought
to trial” within 30, 45, or 60 days of his or her arraignment in the superior court. (Pen.
Code, § 1382, subd. (a).)

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trial, within the meaning of the [C]ode [of Civil Procedure], and any ruling of the court

with respect thereto, if erroneous, is an error of law occurring at the trial . . . .” (Ibid.)
Further, in a jury trial, “the case is ‘brought to trial’ when the parties

commence the examination of prospective jurors and the impanelment of the jury.”

(Kadota v. San Francisco (1958) 166 Cal.App.2d 194, 195 (Kadota).) In Kadota, two
days before the five-year dismissal period expired, “the parties regularly appeared in

court for trial and a jury was impaneled and sworn.” Four days later, the trial court

dismissed the action under the then existing version of the five-year dismissal statute,

section 583. (Id. at p. 194.) The appellate court reversed and reasoned: “[Silcox] was

decided in 1889 and section 583 was not adopted until 1905. [Citation.] We are entitled

to assume that in using the language ‘brought to trial’ the Legislature was aware of this

previous judicial determination that the impanelment of the jury is a part of the trial.

[Citation.] [¶] The holding of our court in [Silcox] not only comports with the common

understanding among lawyers and judges, but finds support in the rulings of the courts of
other jurisdictions . . . .” (Id. at p. 195.) Kadota went on to cite multiple cases from

various states that had reached a similar conclusion. (Id. at pp. 195-196.)

Moreover, a civil action is brought to trial within the meaning of the five-

year dismissal statute when the jury trial panel (the venire) is sworn by the court clerk.

(Hilliard v. A. H. Robbins Co. (1983) 148 Cal.App.3d 374 (Hilliard).) In Hilliard, just

five days before the fifth anniversary of the filing of the civil complaint, “[t]he jury

venire panel was sworn and voir dire examination of prospective jurors began . . . .”

(Id. at p. 389, fn. omitted.) The appellate court noted that: “When the jury venire panel

arrives in the courtroom and court is convened, the trial clerk administers an oath to the
entire panel.” (Id. at p. 389, fn. 6.) Seven days later, during voir dire, the defendant

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moved to dismiss, arguing “that the case had not been ‘brought to trial’ because jurors

who would actually try the case had not been sworn . . . .” (Id. at p. 389.) The trial court
denied the motion and the appellate court agreed, citing Silcox and Kadota. (Ibid.)

Further, Hilliard reasoned that: “A contrary result would invite an unscrupulous party to

delay or prolong voir dire examination of prospective jurors until the expiration of the
five-year period.” (Id. at p. 390.)

Here, the facts in this case are on all fours with Hilliard. In both cases, the

venire was sworn by the court clerk within the five-year deadline. (§ 583.310.)

Recognizing this, the trial court found that the appellate court’s holding in Hilliard is at

odds with two Supreme Court cases: Hartman v. Santamarina (1982) 30 Cal.3d 762

(Hartman) and Bruns, supra, 51 Cal.4th 717. We disagree.

In Hartman, supra, 30 Cal.3d at page 764, a civil action was approaching

the last day for trial under the five-year dismissal statute. But plaintiff’s counsel was

otherwise engaged. The trial court agreed to “‘pick a jury [and] then continue the
matter’” in order to avoid a dismissal. “Twelve prospective jurors were put into the box,

both sides passed for cause, the jury was sworn, and plaintiff moved for a continuance

which was granted over defendant’s objections.” (Ibid.) The Supreme Court approved of

the procedure finding that “plaintiff brought this case to trial within the meaning” of the

statute. (Id. at p. 767.) The court held that the jury had been “impaneled and sworn,”

9
even though the exercise was admittedly a “charade” done solely for the purpose of
5
avoiding the five-year dismissal rule. (Id. at p. 766.)
In Bruns, the issue was unrelated to when an action has been “brought to

trial” under the five-year dismissal statute. (Bruns, supra, 51 Cal.4th 717.) Rather, the

case dealt with whether the statute’s tolling provisions applied under its facts. (Id. at pp.
721-722.) But in an introductory paragraph, the Supreme Court stated: “In an action
6
tried to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Id.

at p. 723.) That sentence was followed by a citation to Hartman. (Ibid.)

Here, the trial court said: “I agree with the moving parties that a jury trial

commences when the jury is [i]mpaneled and sworn. I think that’s the correct

interpretation of the law. [¶] Plaintiff is correct that Hilliard holds to the contrary that a

jury trial commences when jury voir dire begins. However, Hilliard [is] a court of appeal

decision from 1983. Bruns is a California Supreme Court case from 2011 and states in

no uncertain terms, ‘In an action tried to a jury, the action is brought to trial when the jury
is impaneled and sworn.’ [¶] The case cited in Bruns for that proposition is the Hartman

case, a 1982 court of appeals case. And in Hartman, it’s interesting that the trial court

employed the fiction of putting 12 jurors in the box and swearing them . . . . [¶] But they

5
As both parties discussed in their briefing, in a criminal case such a “charade” is
unacceptable due to the speedy trial rights of the accused. (Rhinehart v. Municipal Court
(1984) 35 Cal.3d 772, 781-782 (Rhinehart).) In a criminal matter, in order to be brought
to trial, the case must be “called for trial by a judge who is normally available and ready
to try the case to conclusion. The court must have committed its resources to the trial,
and the parties must be ready to proceed and a panel of prospective jurors must be
summoned and sworn.” (Id. at p. 780, italics added.) Here, had this been a criminal trial,
it appears that the more rigorous Rhinehart standards were also met.
6
Both parties agree that this sentence is dicta. But they also agree that it correctly states
the law, though they disagree as to its meaning.

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went through that fiction because it was necessary to do that. . . . There would be no

need to employ such a fiction if that was not the rule.”
Unlike the trial court, we do not find the holding of Hilliard, supra, 148
7
Cal.App.3d 378, inconsistent with the holding of Hartman, supra, 30 Cal.3d 762. In

both cases, a panel of prospective jurors had assembled in a courtroom, though in
Hilliard it was for the purpose of an actual trial, while in Hartman it was for the purpose

of a “charade.” Therefore, in both cases, the prospective jurors were “impaneled,” and

thereby met the first component of the “impaneled and sworn” requirement in order for

an action to be “brought to trial” as stated in Bruns. (Bruns, supra, 51 Cal.4th at p. 723.)

Further, in Hilliard, supra, 148 Cal.App.3d 378, as well as Hartman, supra,

30 Cal.3d 762, both panels were also “sworn.” Again, there are two oaths administered

during the jury selection process. The first oath occurs when the prospective jurors swear

to tell the truth during voir dire. (§ 232, subd. (a).) The second oath occurs when the

trial jurors swear to “try the cause.” (§ 232, subd. (b).) In neither Hilliard nor Hartman
do the appellate opinions state exactly which oath was administered, but it is of no

consequence. In Hilliard, the panel of prospective jurors presumably swore to tell the

truth, because that is the oath that is given prior to voir dire. In Hartman, the prospective

jurors presumably swore to “try the cause,” because there was no voir dire anticipated or

necessary as part of the “charade.” But ultimately, it does not matter exactly which oath
7
In fact, Hilliard quoted Hartman and both of those courts had relied on Kadota: “In
Hartman . . . , the California Supreme Court discussed some procedures for bringing a
jury case and a nonjury case to trial under the so-called ‘five-year statute.’ In . . .
footnote [three], the court referred to Kadota without disapproval and noted ‘[t]he
opinion’s statement of the issue, . . . , implies that a jury case is brought to trial “when the
parties commence the examination of prospective jurors.”’ (Id., at p. 765, fn. 3.) In view
of Kadota and the Supreme Court’s recent citation thereof [in Hartman], we can only
conclude that a party can put a jury trial beyond the bar of [the five-year statute] by
commencing the jury selection process.” (Hilliard, supra, 148 Cal.App.3d at p. 390.)

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was administered because in both cases each panel of prospective jurors was “sworn,”

and that is all that was required after the prospective jurors had been “impaneled.”
(Bruns, supra, 51 Cal.4th at p. 723.)

In sum, in both Hilliard, supra, 148 Cal.App.3d 378, as well as Hartman,

supra, 30 Cal.3d 762, an assembled group of prospective jurors was impaneled and
sworn. In Hilliard, an appellate court found that the action had been “brought to trial

within five years.” (Hilliard, supra, 148 Cal.App.3d at p. 389, original capitalization

omitted.) In Hartman, the Supreme Court found that the action had been “brought to trial

within five years.” (Hartman, supra, 30 Cal.3d at p. 762.) Accordingly, consistent with

Hilliard and Hartman, as well as over 100 years of long-standing case law, in this matter

the jury was impaneled and sworn within five years of the filing of the civil complaint;

therefore, the action was brought to trial within five years of the filing of the civil

complaint. (§ 583.310.) Thus, the action was improperly dismissed.

III
DISPOSITION
The judgment is reversed. Plaintiffs shall recover their costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.

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