Reset A A Font size: Print

Court of Appeal, Second District, Division 7, California.

Rollin FORSYTH, Plaintiff, Respondent and Cross–Appellant, v. RITTER AND RITTER, etc., et al., Defendants, Appellants and Cross–Respondents.

No. B019138.

Decided: September 23, 1988

Lewis, D'Amato, Brisbois & Bisgaard and Mark E. Augustine, Los Angeles, and Greines, Martin, Stein & Richland and Alan G. Martin, Beverly Hills, for defendants, appellants, and cross-respondents. Joseph Daniel David and Charlotte E. Costan, Los Angeles, for plaintiff, respondent and cross-appellant.

In this attorney malpractice action, plaintiff Rollin Forsyth recovered a judgment, after a jury trial, against defendants Ritter and Ritter.   Both plaintiff and defendants appeal.   Defendants contend that the trial court erred in denying their motion to dismiss based on plaintiff's failure to bring the matter to trial within five years, and prejudicially erred as to various matters which arose at trial.   Plaintiff contends that he was entitled to more interest than was awarded.   We find no substantial error, and affirm.


Motion to Dismiss

The complaint in this case was filed on August 15, 1980.   In July 1985, in response to defendant's demands that plaintiff comply with discovery requests, the court ordered that plaintiff appear for deposition and that the trial “shall not take place until 5 days” after the deposition.   The deposition was completed on August 12, 1985.

The five-year period was to expire on August 15, 1985.   The matter was set for trial on August 14.   No courtrooms were available on August 14, 15 or 16.   The matter was assigned to a trial court the next court day, August 19.

On August 19, the matter was “called for trial” and court and counsel conferred in chambers at an unreported conference.   On August 20, 21 and 22, the trial court heard and ruled on various in limine motions.   On August 22, a jury panel was sworn.

During the conferences held on August 20 and August 21, defendants moved to dismiss the case on grounds that the five-year period had expired.   In denying the first motion, the court referred to the five-day extension granted in connection with defendant's discovery motion, and noted that the last day would have been the 17th (a Saturday).   In denying the second motion, the court rejected defendant's theory that a jury must be impanelled within five years.

We note that under no conceivable theory of tolled time could the five-day extension for plaintiff's deposition or the unavailability of a courtroom on the 14th, 15th, and 16th combine to result in a “last day” of August 22, when jury selection began.  (See Breacher v. Breacher (1983) 141 Cal.App.3d 89, 93, 190 Cal.Rptr. 112.)

We reject, however, defendants' theory that the five-year clock did not stop until the jury was impanelled on the 22nd, beyond the five-year period, taking into account several tolled days.

 We assume, to simplify our analysis, that the last day to begin the trial was August 19, the day that the matter was assigned to a trial court, and an unreported conference was held.1

Defendants concede that plaintiff cannot be deprived of a trial because the five-year period ended when no courtrooms were available.  (E.g., Goers v. Superior Court (1976) 57 Cal.App.3d 72, 75, 129 Cal.Rptr. 29.)   No courtroom was available until the 19th, when the case was sent to a trial court and proceedings related to the trial began.

 A trial traditionally begins by swearing a witness or impanelling a jury.  (E.g., Weeks v. Roberts (1968) 68 Cal.2d 802, 805, 69 Cal.Rptr. 305, 442 P.2d 361.)   A plaintiff can satisfy the five-year rule by having a jury impanelled, even when that act is done with no likelihood that trial will follow.  (Hartman v. Santamarina (1982) 30 Cal.3d 762, 765, 180 Cal.Rptr. 337, 639 P.2d 979.)   Doubtless, plaintiff could have avoided all questions by the use of the “trial-started” fiction.  (Central Mutual Ins. Co. v. Executive Motor Home Sales, Inc. (1983) 143 Cal.App.3d 791, 795, 192 Cal.Rptr. 169.)

We conclude, however, that although the device of impanelling a jury is sufficient to satisfy or toll the five-year period, the device is not necessary when the trial court decides the trial has begun and conducts proceedings related to that trial.

 The five-year period is tolled if it is impossible, impracticable or futile to bring the matter to trial.  (E.g., 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, §§ 139 et seq.;   see also Code Civ.Proc., § 583.340, subd. (c).)  Once a plaintiff has obtained a trial date within the five-year period, that plaintiff has done all a litigant can do to bring the matter to trial and delays due to court action are not chargeable to the plaintiff.  (Goers v. Superior Court, supra, 57 Cal.App.3d 72, 74–75, 129 Cal.Rptr. 29.)   If no trial court is available, it is impossible for a plaintiff to try the case, because the plaintiff has no control over the system.   So here, it was impossible for plaintiff to do more than appear in the trial court on the 19th ready to try the case.

 Plaintiff and defendants did appear in the trial court prepared to try the case.   The trial court decided to hear and decide various in limine motions related to the exclusion of witnesses and evidence before the jury was involved.2  The trial court was entitled to control the order of proceedings, and to decide whether the motions were heard before, during, or after jury selection, and whether the motions were heard piecemeal as the case progressed or in a bunch before trial.   Indeed, the trial court's procedure was sensible and protective of court resources.3

In short, once the case was assigned to and accepted for trial by a trial court, plaintiff had no power to determine the precise manner in which the case would be tried.   It was impossible for plaintiff to “try” the case until the trial judge permitted him to do so.

Defendants correctly point out that delay resulting from pretrial proceedings is not excluded from the five-year period.  (E.g., J.C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 670, 343 P.2d 919.)   But these proceedings were “pretrial”—that is, before impaneling of the jury—only because the trial court chose to hear the motions before the jury was impanelled.   We are satisfied that no reasonable comparison can be made between the multifarious motions and conferences that often substitute for a trial, and the determination immediately before trial of inevitable evidentiary issues.

We need not and do not decide the range of variations which the present scenario suggests.   In this case, (1) the matter was sent to a trial court within the five-year period;  (2) the trial court on the first day and for several days thereafter heard and ruled on evidentiary matters which would arise at trial;  and (3) as soon as those matters were decided, a jury panel was called and sworn, and jury selection began.   On these facts, it was impossible for plaintiff to bring the case to trial sooner than he did.



The judgment is affirmed.   Plaintiff to recover costs.



1.   The time is calculated by setting aside the period during which it was impossible to bring the matter to trial, and examining the time remaining both before and after the exempt period.  (Stella v. Great Western Sav. & Loan Assn. (1970) 13 Cal.App.3d 732, 741, 91 Cal.Rptr. 771.)   The 14th and 15th are excluded from the five-year count;  no courtroom was available on the 16th, a day beyond the five-year period, and the 17th and 18th were a Saturday and Sunday.   The last day of five years would then appear to be the 19th.   Even if only court days are counted in adding time to the end of the five-year period, the result in this case would be the same.

2.   Motions in limine are “designed to prevent the prejudicial effect that may result when an objection to evidence is sustained, and the jury is then instructed to disregard the evidence.”  (6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 2.)

3.   The trial judge explained it to the jury panel:  “We have spent a lot of time in this lawsuit trying to save you time.   I spend more time before the jury comes trying to save time that I sometimes do in a trial, and the purpose is to try to make the issues as narrow and as complete as possible so that there will be no delays․  We have spent a lot of time trying to make your job easier.   That way we try to avoid the delays during the court of the trial.”

FOOTNOTE.   See footnote *, ante.

SOVEN, Associate Justice.*** FN*** Assigned by the Chairperson of the Judicial Council.

LILLIE, P.J., and JOHNSON, J., concur.