Borrayo v. Avery CA1/1

Filed 7/20/22 Borrayo v. Avery CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

LIDIA C. BORRAYO,
Plaintiff and Appellant, A161347

v. (San Francisco City & County
G. JAMES AVERY, Super. Ct. No. CGC-12-525769)
Defendant and Respondent.

Plaintiff filed an action for medical negligence against defendant in
2012. Defendant’s motion for summary judgment was granted on the ground
that plaintiff’s expert, a physician in Mexico, was not qualified to provide
expert testimony on the standard of care in the United States. Plaintiff
appealed, and this court reversed. (Borrayo v. Avery (2016) 2 Cal.App.5th
304 (Borrayo I).) The remittitur was filed in the trial court on October 19,
2016. Pursuant to Code of Civil Procedure1 section 583.320, subdivision
(a)(3), plaintiff had three years after the remittitur was filed— until October
19, 2019—to bring the action to trial.

All statutory references are to the Code of Civil Procedure unless
1

otherwise specified.
 On June 16, 2020, defendant filed a motion to dismiss for lack of
prosecution. The court granted the motion on the grounds plaintiff had failed
to exercise reasonable diligence in bringing the case to trial and the deadline
was not tolled by impossibility or impracticability under section 583.340,
subdivision (c). The court also found Judicial Council emergency rule 10(b)
(Cal. Rules of Court, appen. I, emergency rule 10(b) (emergency rule 10(b)))
did not extend the deadline by six months and, even if it did, that deadline
had also passed. Judgment for defendant was entered, and plaintiff timely
appealed.
On appeal, plaintiff contends that she was reasonably diligent in
bringing the matter to trial and that the deadline to bring the case to trial
under section 583.320, subdivision (a)(3) was tolled due to impossibility and
impracticability under section 583.340, subdivision (c). Plaintiff also
contends that the deadline under section 583.340, subdivision (a)(3) was
extended by six months pursuant to emergency rule 10(b) and that plaintiff
was entitled to an additional six months based upon the extension created by
that “statute” pursuant to section 583.350, for a total extension of one year.
We affirm the dismissal.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The facts alleged in plaintiff’s underlying medical negligence action are
described in this court’s previous opinion and need not be repeated in detail
here. In essence, plaintiff filed a complaint alleging defendant was negligent
in treating her thoracic outlet syndrome. (Borrayo I, supra, 2 Cal.App.5th at
pp. 307–308.) Before trial, defendant moved for summary judgment. In
opposition to the motion, plaintiff submitted a declaration of Dr. Abraham
Castrejon Pineda, a physician practicing in Mexico. Defendant objected to

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the declaration of Dr. Castrejon Pineda on the basis he had failed to establish
he was sufficiently familiar with the standard of care in the United States.
(Ibid.) The trial court sustained the objection and granted the motion. (Id. at
pp. 308–309.) On appeal, we reversed, concluding that defendant’s “locality
objection” to plaintiff’s expert declaration should not have been granted. (Id.
at p. 314.)
The remittitur was filed in the trial court on October 19, 2016, which
triggered the three-year deadline under section 583.320, subdivision (a)(3) to
bring the case to trial. On November 3, 2016, defense counsel advised
plaintiff’s counsel of his wish to depose Dr. Castrejon Pineda. According to
plaintiff’s counsel, he did not reply to this request because he did not believe
defendant was entitled to take Dr. Castrejon Pineda’s deposition. Over a
year later, during December 2017, plaintiff’s counsel reconsidered and
attempted to contact Dr. Castrejon Pineda, only to learn that the doctor had
died on February 9, 2016, during the pendency of the earlier appeal. On
December 20, 2017, the date he learned of the doctor’s passing, plaintiff’s
counsel e-mailed defendant’s attorney, asking him to stipulate to the naming
of another retained expert as soon as they obtained one.2
Counsel for plaintiff had concluded that there was a reluctance on the
part of experts in the United States to testify against defendant. In addition,
the “financial capacity” of plaintiff’s counsel to advance costs was not
unlimited, and he anticipated a renewed search for an expert would be long
and entail “far more costs than [he] could ever afford to pay,” having already
advanced more than $10,000 for litigation costs. Plaintiff had limited

2According to plaintiff’s counsel, during the year that had passed since
the remittitur was filed, he had been waiting for “the court to resume
procedural oversight of the case by setting a case management conference.”

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resources as her only income was from disability benefits. Therefore,
plaintiff’s counsel encouraged his client to find a treating doctor in Mexico
who would be willing to perform reconstructive surgery and consult with him.
Counsel thought it likely that such a doctor would be willing to consult with
him “more or less gratis” concerning the medical-legal issues. In mid-2018,
plaintiff learned of an orthopedic surgeon, Dr. Jose Miguel Huerta, located in
Guadalajara, Mexico. Because plaintiff had limited income, she needed to
save money to pay for the trip to see Dr. Huerta. Eventually, plaintiff
attended appointments with Dr. Huerta in January and February 2019.
During these visits, Dr. Huerta indicated his willingness to perform
corrective surgery and to consult with her counsel.
In the meantime, on November 16, 2018, defendant filed another
summary judgment motion. Although Dr. Huerta opined to plaintiff’s counsel
that defendant had departed from the standard of care, he ultimately
“balked” at finalizing and signing a declaration drafted by counsel in
opposition to the motion. As plaintiff’s counsel describes it, “in the equivalent
of a ‘Hail Mary pass,’ ” in March 2019, he launched a search for another
forensic orthopedic expert in the United States. Counsel was able to retain
an orthopedic surgeon, Dr. Bruce E. Ellison, in less than a month. He claims
that, this time, his search for an expert located in the United States was
aided because he now had color films (apparently computerized tomography
(CT) scans) taken by Dr. Huerta. On April 12, 2019, plaintiff filed a
declaration of Dr. Ellison in opposition to the second summary judgment
motion. After taking Dr. Ellison’s deposition, defendant took the motion off
calendar shortly before the hearing date of June 21, 2019.
With the summary judgment motion resolved, plaintiff’s counsel
“expected that said activity would put this case back on the court’s radar

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screen” and that an order scheduling a case management conference would be
forthcoming. When he did not hear anything, he e-mailed defense counsel on
March 11, 2020 to propose bringing a joint ex parte application for a case
management conference or trial setting conference. Defense counsel did not
respond. By mid-March 2020, the COVID-19 pandemic was underway.
June and July saw a flurry of activity by both sides. On June 12, 2020,
plaintiff filed a case management statement seeking the earliest possible
date for a nonjury trial. On June 16, 2020, defendant filed a motion to
dismiss on the ground that plaintiff had not brought the case to trial within
the three-year timeframe mandated by section 583.320, subdivision (a)(3).
Also on June 16, plaintiff filed an ex parte application for an order shortening
time on a motion for preference in trial setting. The application was denied
without prejudice to bringing a motion on a regularly scheduled basis. On
June 17, 2020, the court issued an order setting a case management
conference for July 22, 2020.
On June 25, 2020, defendant submitted a case management statement
asserting the time for trial had already expired and alternatively requesting
a jury trial. On June 26, 2020, plaintiff filed a motion for preference in
setting trial. On July 8, 2020, the court issued a notice setting the case for
jury trial on January 11, 2021. On July 8, 2020, defendant filed opposition to
the motion for preference. On July 10, 2020, plaintiff filed opposition to the
motion to dismiss. On July 14, 2020, plaintiff filed her reply in support of the
motion for preference. On July 15, 2020, defendant filed reply papers in
support of the motion to dismiss.
The court denied plaintiff’s motion for preference on July 21, 2020. On
July 23, 2020, after argument, the court issued a written order granting the

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motion to dismiss. Judgment for defendant was entered the same day. This
timely appeal followed.
II.
DISCUSSION
A. Applicable Law and Standard of Review
An action must generally be brought to trial within five years after it is
commenced. (§ 583.310.) If, on appeal, an order granting a new trial is
affirmed or a judgment is reversed, and the action is remanded for a new
trial, the action must be brought to trial within the later of the five-year
period or the three-year period following the filing of the remittitur by the
clerk of the trial court. (§ 583.320, subds. (a)(3) & (b).) This provision has
been construed to apply to a reversal after a summary judgment. (Rel v.
Pacific Bell Mobile Services (2019) 33 Cal.App.5th 882, 892.) Dismissal for
failure to meet these timelines is mandatory except as provided by statute.
(§ 583.360.)
Section 583.340, subdivision (c) provides that in computing the time to
bring the action to trial, any period in which it was impossible, impracticable,
or futile to bring the action to trial is excluded. In considering whether the
statutory deadline is tolled pursuant to section 583.340, subdivision (c), the
“trial court must determine whether plaintiff has shown a circumstance of
impossibility, impracticability, or futility, a causal connection to the failure to
move the case to trial, and that he or she was ‘reasonably diligent in
prosecuting the case at all stages of the proceedings.’ ” (Bruns v. E-Commerce
Exchange, Inc. (2011) 51 Cal.4th 717, 731 (Bruns); see also Gaines v. Fidelity
National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 (Gaines) [in deciding
whether exception applies, “the court must consider ‘ “all the circumstances
in the individual case, including the acts and conduct of the parties and the

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nature of the proceedings themselves,” ’ ” quoting Bruns].) “ ‘The critical
factor in applying these exceptions to a given factual situation is whether the
plaintiff exercised reasonable diligence in prosecuting his or her case.”
(Bruns, at p. 730.) Tolling is warranted “if and only if the court finds that the
plaintiff used due diligence to [bring the matter to trial] and that in spite of
such due diligence, it was impossible, impracticable, or futile” to do so.
(Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270 (Sanchez),
italics omitted.)
Additionally, “ ‘[t]he text of section 583.340 impels the view that there
must be a causal connection between the circumstance upon which [the]
plaintiff relies and the failure to satisfy the [statutory deadline]. Bringing
the action to trial must be impossible, impracticable, or futile for the reason
proffered.’ ” (Sanchez, supra, 109 Cal.App.4th at p. 1272, quoting Sierra
Nevada Memorial-Miners Hospital, Inc. v Superior Court (1990)
217 Cal.App.3d 464, 473 (Sierra Nevada), italics omitted.) For instance, in
Sanchez, the appellate court concluded that the failure to timely bring the
action to trial was not due to the proffered reasons—the suicide of the
plaintiff’s counsel, the four months it took to find replacement counsel, and/or
the three months during which the plaintiffs were seeking writ review of a
discovery order. (Sanchez, at p. 1272.) Rather, the failure was due to
“counsel’s lack of diligence in failing to keep apprised of the case’s
chronology.” (Ibid.)
Following the outbreak of COVID-19 in March 2020, the Judicial
Council adopted an emergency rule which tolled the deadlines to bring a civil
action to trial under sections 583.310 and 583.320. Emergency rule 10,
effective April 6, 2020, provides in pertinent part as follows: “(a) . . . [¶]
Notwithstanding any other law, including Code of Civil Procedure

7
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 time
of five years and six months. [¶] (b) . . . [¶] Notwithstanding any other law,
including Code of Civil Procedure section 583.320, for all civil actions filed on
or before April 6, 2020, if a new trial is granted in the action, the three years
provided in section 583.320 in which the action must again be brought to trial
is extended by six months for a total time of three years and six months.
Nothing in this subdivision requires that an action must again be brought to
trial before expiration of the time prescribed in (a).” (Cal. Rules of Court,
appen. I, emergency rule 10.) Finally, section 583.350 provides that “[i]f the
time to bring an action to trial 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 to bring the action to trial, the action shall not
be dismissed if the action is brought to trial within six months after the
period of tolling or extension.
“ ‘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.” ’ ” (Gaines,
supra, 62 Cal.4th at p. 1100; accord, Bruns, supra, 51 Cal.4th at p. 731.)
Thus, “ ‘[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,
at p. 1100.) Moreover, “[t]he plaintiff bears the burden of proving that the

8
circumstances warrant application of the section 583.340[, subdivision] (c)
exception.” (Bruns, at p. 731.)3
B. Plaintiff Failed To Exercise Reasonable Diligence To Bring the
Case to Trial
Plaintiff claims on appeal that the three-year period to bring the case to
trial should have been tolled during two separate time periods under 583.340,
subdivision (c). The “ ‘First Period,’ ” October 2016 to December 2017, should
have been tolled based upon impossibility; the “ ‘Second Period,’ ”
December 2017 to March 2019, should have been tolled based upon
impracticability. We affirm the trial court’s conclusion that the statute was
not tolled during either period because plaintiff failed to exercise reasonable
diligence to bring the matter to trial.
1. The First Period—Impossibility
Plaintiff defines the First Period (which lasted 14 months) as running
from the issuance of the remittitur in October 2016, until plaintiff learned
that Dr. Castrejon Pineda had died in December 2017. Plaintiff asserts that
“the loss of her expert posed an absolute obstacle to trial readiness until a
suitable replacement expert could be found.” Plaintiff relies upon Sierra
Nevada, supra, 217 Cal.App.3d 464, but that case does not support plaintiff’s
position. In Sierra Nevada, the plaintiff’s counsel miscalendared the five-

3 Citing Tamburina v. Combined Ins. Co. of America (2007)
147 Cal.App.4th 323, plaintiff argues that our proper standard of review in
this case is de novo. We disagree. Tamburina is distinguishable because it
did not consider whether the plaintiff exercised reasonable diligence in
bringing the matter to trial, remanding that issue after resolving certain
legal claims regarding the use of stipulations to prove impracticality due to
extended illness. (Id. at pp. 328–336.) Here, the trial court made a factual
finding of no reasonable diligence, which we review for substantial evidence.
Whether the facts justified dismissal under section 583.340, subdivision (c) is
properly reviewed for abuse of discretion as set forth above.

9
year deadline to bring the case to trial but claimed the deadline should
nevertheless be tolled for 77 days due to counsel’s surgery and convalescence.
(Id. at p. 467.) After the trial court denied a motion to dismiss, the Court of
Appeal granted defendant’s writ, directing the trial court to dismiss the
action. The Court of Appeal noted that the impossibility must be due to
factors not reasonably within the control of the plaintiff. Additionally, it held
that there must be a causal connection between the circumstance upon which
the plaintiff relies and the failure to satisfy the deadline. (Id. at pp. 467,
471–473.)
Here, plaintiff argues that Dr. Castrejon Pineda’s death was not within
her control. While that much is true, the question is whether there was a
causal connection between his death and the failure to satisfy the statutory
deadline. The answer is no.
In November 2016, defendant requested Dr. Castrejon Pineda’s
deposition, but plaintiff did not think the defense was entitled to the
deposition and did not respond. Only when plaintiff’s counsel “reconsidered”
and decided to produce Dr. Castrejon Pineda for deposition in December 2017
was it discovered that he had died in February 2016, while the appeal was
pending. There is nothing in the record as to what prompted plaintiff’s
change of position. It was within plaintiff’s power to ascertain Dr. Castrejon
Pineda’s availability for trial and also to take steps to have the case set for
trial. Instead, the case languished for 14 months after the remittitur was
filed in October 2016. It was not Dr. Castrejon Pineda’s death that caused
the impossibility to bring the matter to trial. Rather it was plaintiff’s failure
to remain apprised of the doctor’s availability to testify as an expert witness
and to act with reasonable diligence to secure a trial date before the deadline.
Nothing prevented plaintiff from learning of Dr. Castrejon Pineda’s death,

10
launching efforts to locate a new expert, and securing a trial date during the
passage of these 14 months.
Plaintiff appears to blame this delay on defendant by arguing
“[d]efendant . . . made no post-remittitur effort to revive or recalendar the
[summary judgment] motion for further hearing. If [d]efendant had done so,
[d]efendant might arguably have been entitled to depose Dr. [Castrejon
Pineda] in connection therewith.” But defendant was under no obligation to
move for summary judgment and may have strategically decided not to do so
until a later date. Rather, it was plaintiff’s obligation to marshal the case
forward. (See Gaines, supra, 62 Cal.4th at p. 1104 [“ ‘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,’ ” and, if a trial court does not take any action, “to seek
an order from the trial court . . . rescheduling the trial date”]; see also Greene
v. Howmedica, Inc. (1993) 13 Cal.App,4th 912, 915 [“Even if [the plaintiff]
believed this case would be set for trial automatically on the issuance of the
remittitur, ‘there comes a time when [the] plaintiff can no longer be
considered “diligent,” and entitled to claim impossibility, impracticability or
futility in moving the case forward, without at least taking some action to call
the matter to someone’s attention.’ ”].)4
Plaintiff cannot sit back and do nothing and then claim that, because
she did not discover that her expert died, it was impossible to bring the case

4 Moran v. Superior Court (1983) 35 Cal.3d 229 (Moran) cited by
plaintiff is inapposite because, there, a specific statutory provision imposed
the duty on the trial court to sua sponte recalendar the trial after timely
request for trial de novo following a judicially mandated arbitration. (Id. at
pp. 240–241.) Here, there was no statutory duty imposed on the trial court,
and plaintiff failed to make any application for trial setting.

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to trial. Fourteen months of inactivity is not reasonable diligence, nor does it
toll the statute. To hold otherwise would swallow the rule so that for every
period of inactivity the statute would be tolled, rendering the three-year
deadline indeterminate and subjective.
2. The Second Period—Impracticability
Plaintiff also failed to demonstrate reasonable diligence during the
Second Period from December 2017 to March 2019. After learning of Dr.
Castrejon Pineda’s death, plaintiff’s counsel determined that the best course
of action to locate a new expert would be to instruct plaintiff to find a surgeon
in Mexico willing to perform her corrective surgery who would also be willing
to consult on the case. Plaintiff’s counsel had concluded there was a
reluctance on the part of experts in the United States to testify against
defendant. In addition, due to the “financial capacity” of plaintiff’s counsel
and plaintiff’s limited resources, counsel determined this plan would be more
cost effective.
Plaintiff learned of Dr. Huerta in mid-2018 but was unable to make
arrangements to travel to see him until January 2019. She saw Dr. Huerta
again in February 2019. By this time, defendant had refiled his motion for
summary judgment in November 2018. Ultimately Dr. Huerta “balked” at
finalizing and signing a “draft declaration” sent to him. In about February
and March, Dr. Huerta declined to sign the declaration. In March 2019,
plaintiff’s counsel “launched one more try” to locate a forensic expert.
Plaintiff succeeded in locating an expert and retained Dr. Ellison, an
orthopedic surgeon. On April 12, 2019, plaintiff submitted Dr. Ellison’s
declaration in connection with the pending summary judgment motion.
Plaintiff claims the deadline for proceeding to trial should have been
tolled for the Second Period from December 2017, when her attorney learned

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of Dr. Castrejon Pineda’s death, to March 2019, when counsel was turned
down by Dr. Huerta. Plaintiff relies on Brunzell Construction Co. v. Wagner
(1970) 2 Cal.3d 545 to support her claim that seeking a replacement expert in
Mexico to conserve expenses should not detract from the reasonable diligence
with which counsel was required to proceed to trial. Brunzell was a
construction case which addressed whether claims against certain parties
were severable and could have been timely brought to trial. The case was
remanded for the trial court to consider, among other things, the expense and
difficulty that would be engendered by separate trials. (Id. at pp. 548–550.)
Brunzell does not support the general notion that steps to avoid or minimize
expense justify a finding of impracticability. In every case involving expert
testimony, parties must grapple with the challenges of locating a qualified
expert, willing to testify, as well as the expense attendant to securing that
expert testimony. It cannot be the rule that time consumed minimizing
expense or delay in locating an expert constitutes impracticability. Such a
rule would effectively result in an open-ended tolling period, defeating the
purpose of limitations statutes.
The trial court concluded that plaintiff failed to exercise reasonable
diligence during the Second Period, and we concur. Indeed, the fact that
counsel was able to launch a search for a new expert in March 2019 and
secure an expert declaration from Dr. Ellison by April 2019 demonstrates
that, with reasonable diligence, plaintiff had the ability to secure a new
expert. The trial court was within its discretion to conclude that the
circumstances of inability to obtain an expert were not beyond plaintiff’s
control, a finding we will not disturb on appeal.
3. Other Considerations
Plaintiff next takes issue with the trial court’s statement in the order

13
dismissing the action that plaintiff “did not detail any steps they took to
bring the case to trial between June 2019, when defendant took [his]
summary judgment motion off calendar and March 2020, when counsel
proposed that the parties jointly seek a case management or trial setting
conference.” After plaintiff filed Dr. Ellison’s declaration in April, defendant
withdrew his motion in June 2019. Nothing in the record reflects any action
by plaintiff from June 2019 to March 2020, when plaintiff proposed a joint ex
parte application to set the case for trial.
As stated above, “[t]o avoid dismissal under the section 583.340,
subdivision (c) exception, a plaintiff must prove . . . that [he or] she was
reasonably diligent in prosecuting [his or] her case at all stages in the
proceedings.” (Tanguilig v. Neiman Marcus Group, Inc. (2018)
22 Cal.App.5th 313, 323, italics added.) Nevertheless, relying upon the Law
Revision Commission comment to section 583.340, plaintiff argues that the
trial court improperly considered the timeframe after the proffered tolling
periods in finding her lack of diligence. Subdivision (c) was intended to codify
existing caselaw regarding the “ ‘impossible, impractical, or futile’ standard.”
(Cal. Law Revision Com. com., Deering’s Ann. Code Civ. Proc. (2022 ed.) foll.
§ 583.340.) The comment further states: “Under Section 583.340 the time
within which an action must be brought to trial is tolled for the period of the
excuse, regardless whether a reasonable time remained at the end of the
period of the excuse to bring the action to trial.” (Ibid.) In Gaines, supra,
62 Cal.4th 1081, our high court interpreted the comment to mean that “a
condition of impossibility, impracticability, or futility need not take the
plaintiff beyond the five-year deadline to be excluded; it will be excluded even
if the plaintiff has a reasonable time remaining after the period to bring the
case to trial.” (Id. at p. 1101.) The comment thus has no applicability to the

14
facts here, where the issue is whether plaintiff exercised reasonable diligence
overall in bringing the matter to trial and the proposed tolling would not
have extended beyond the deadline to bring the action to trial.
Substantial evidence supports the trial court’s conclusion in this case
that plaintiff also failed to exercise due diligence in the timeframe from June
2019, when defendant took his summary judgment motion off calendar, to
March 2020, when plaintiff’s counsel proposed that the parties jointly seek a
case management or trial setting conference. Plaintiff’s excuse for inaction
during this final period is that counsel anticipated the law and motion
activity relating to the summary judgment motion “would put the case back
on the court’s radar screen, thereby reviving [counsel’s] earlier expectation
that the court would meet its ‘fast track’ responsibility by issuing an order
scheduling a conference at which a trial date could be set.”
However, as we have already discussed, plaintiff cannot sit back and
await action by the court. “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. This obligation of
diligence increases as the five-year deadline approaches.” (Jordan v.
Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1422.) Plaintiff had three
years from the remittitur to bring the case to trial and has not shown
reasonable diligence in doing so.5

5 Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424 and
Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342 cited by plaintiff are not
to the contrary. Howard involved the specific statutory tolling provision
following arbitration under section 1141.20 which was at issue in Moran.
The Supreme Court concluded that some initial, reasonable diligence on the
plaintiff’s part is required to benefit from section 1141.20’s implied tolling
provisions. (Howard, at p. 433.) In Salas, the trial court dismissed the

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C. Neither Section 583.350 nor Emergency Rule 10(b) Help Plaintiff
Section 583.350 provides “[i]f the time period 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 remain[]” then the time to bring the
action to trial is extended six months after the tolling or extension. (Italics
added.) Plaintiff contends that, even if the three-year statutory deadline for
bringing the matter to trial was not extended by impossibility or
impracticality, emergency rule 10(b) extended the three-year period by six
months to April 19, 2020, and section 583.350 further extended the deadline
to bring the matter to trial by an additional six months, to October 19, 2020.
Thus, plaintiff concludes, it was error to dismiss the case on July 23, 2020.
Rather, plaintiff reasons that, if she had again brought a motion for
preference during July 2020, there would have remained 80 days to bring the
case to trial.6 We are not persuaded.

plaintiffs’ case for failing to bring the case to trial within the five-year
deadline. The plaintiffs had allowed a 10-month period to elapse without
moving to set their case for trial. Then, 40 days before the deadline, the
plaintiffs moved for trial preference under section 36, subdivision (d). The
trial court denied the motion. (Salas, at pp. 344–345.) The Supreme Court
affirmed, concluding the trial court had discretion to deny the motion under
the preference statute. (Id. at p. 349.) The court noted that the plaintiffs’
utter lack of diligence forfeited their right to preferential trial setting and the
case was properly subject to dismissal. (Ibid.)
6 Defendant notes that this argument was not addressed in the court
below. We may exercise our “discretion to consider a theory presented for the
first time on appeal when that theory involves only a legal question
determinable from the uncontroverted facts and those facts could not have
been altered by the presentation of additional evidence.” (County of Kern v.
T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 326.) We exercise our discretion to
do so here.

16
 Indeed, after briefing in this case was completed, the Fifth Appellate
District addressed and rejected this same argument in Ables v. A. Ghazale
Brothers, Inc. (2022) 74 Cal.App.5th 823 (Ables). In that case, emergency
rule 10(a) of the California Rules of Court, appendix I (emergency rule 10(a))
had extended the plaintiff’s time for bringing her action to trial to
January 24, 2021. (Ables, at p. 828.) The defendants brought motions to
dismiss in February 2021, arguing that Ables had failed to bring her matter
to trial within the applicable mandatory timeframe. (Id. at p. 826.) Ables
asserted that, pursuant to section 583.350, the extension referred to in
emergency rule 10(a) should be extended for an additional six months.
(Ables, at p. 827.) The trial court disagreed, dismissing the case. Specifically,
it rejected Ables’s argument that emergency rule 10(a) invoked section
583.350, because section 583.350 requires that a statute extend the period,
and emergency rule 10(a) was not a statute. (Ables, at p. 827.) The Fifth
Appellate District affirmed under the same reasoning. (Id. at pp. 827–828.)
We agree with the analysis and conclusion of Ables and find it
dispositive here. In order to invoke section 583.350, the deadline at issue
must have been “tolled or otherwise extended pursuant to statute.”
Emergency rule 10 is a rule of court, not a statute. It is located in appendix I
of the California Rules of Court. Moreover, pursuant to the California
Constitution, article VI, section 6, subdivision (d), the Judicial Council is only
authorized to adopt rules “not . . . inconsistent with statute.” (See also
California Court Reporters Assn. v. Judicial Council of California (1995)
39 Cal.App.4th 15, 21 [“The Judicial Council is empowered to ‘adopt rules for
court administration, practice and procedure,” italics added].) Finally,
Government Code section 68115, subdivision (a)(6) provides the Judicial
Council may extend the deadlines in sections 583.310 and 583.320 by order.

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It did so in emergency rule 10(b). It did not change the statute. Thus, there
was no tolling or extension by statute.
Since we have concluded that section 583.350 has no applicability here,
it does not matter whether emergency rule 10(b) is construed to apply to
actions which failed to meet their mandatory deadlines before the rule
became effective, but which had not been formally dismissed as of the
effective date. While we are skeptical that the Judicial Council intended the
rule to apply under such circumstances—and indeed there is an argument
that such a construction would be inconsistent with statute—we need not
reach the issue because, as the trial court here recognized, any such
extension would have expired months before it dismissed the case in July
2020.7
Pursuant to section 583.360, subdivision (b), dismissal is “mandatory
and . . . not subject to extension, excuse, or exception except as expressly
provided by statute.” The trial court in this case found that plaintiff failed to
act with reasonable diligence in bringing her matter to trial, and we have
determined that substantial evidence supports this conclusion. Given
plaintiff’s failure to establish a statutory exception or excuse, the trial court’s
dismissal cannot be deemed an abuse of discretion.
III.
DISPOSITION
The judgment is affirmed. Each party to bear their own costs.

7 If plaintiff’s argument were accepted, then section 583.350 would
necessarily apply to every case pending as of April 6, 2020. There is no
indication the Judicial Council intended such a result.

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 WISS, J.

WE CONCUR:

HUMES, P. J.

MARGULIES, J.

A161347N


Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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