JCCP Coordination Submission Tolls Three- and Five-Year Rules

Fid. Nat’l Home Warranty Co. Cases, No. D074161 (D4d1 Mar. 20, 2020)

This is an appeal of a pair of cases that were dismissed under the five- and three-year rules in Code of Civil Procedure §§ 583.310 and 583.320. 

There’s a threshold issue regarding the timeliness of the notice of appeal. The trial court entered an order dismissing the cases on December 15, 2017. But it did not enter judgments until March 7 and April 2, 2018. Plaintiffs filed a consolidated notice of appeal on May 1. There’s no question that the appeal is timely if the March 7 and April 2 judgments are the only final appealable judgments in the case. See Cal. R. Ct. 8.104(a)(1)(can file notice of appeal, at minimum, 60 days from entry of judgment). But if the December 15 dismissal order is itself a judgment, then the appeals are too late.

It all comes down to the interplay between Code of Civil Procedure §§ 581d and 581(k). Section 581d says an order dismissing a case needs to be signed by the court and filed in the action. When the order takes that form, it constitutes a final judgment. But § 581(k) says a certified class action can’t be dismissed unless and until notice approved by the court has been given to the class and the court orders a dismissal. Here, that issue wasn’t raised until after the entry of the December 15 order. The Court ultimately approved the form of notice in one case and found that notice was unnecessary in the second case because no class had been certified. 

Until the notice issues were resolved, § 581(k) prohibited the cases from being dismissed. Thus, the Court of Appeal holds that the December 15 order cannot be treated as a final judgment under the authority of § 581d. Only an order issued after the § 581(k) prerequisite had been satisfied, and which conformed to formalities in § 581d could count as a final judgment. That being the case, the judgments entered on March 7 and April 2 were the real judgments in the cases, and thus the appeals were timely taken.

On the merits, the cases were put on ice for 135 days while a coordination judge decided whether cases should be rolled into a coordinated JCCP action. A plaintiff is entitled to tolling of the 3 and 5 year limits when it is impossible, impracticable, or futile” to bring a case to trial. § 583.340(c). And the Rules of Court pertaining to JCCP proceedings specifically say that a trial can’t be commenced with the coordination motion is pending. Cal. R. Ct. 3.515(i). Thus, notwithstanding a split of authority on the question, the court finds that plaintiffs were entitled to another 135 days of tolling and that the trial court abused its discretion in failing to count it. 

That helps one case but not the other. One case was subject § 583.310’s five-year rule. The 135 days of tolling was enough to take that case out of the statute. So that’s reversed. 

But in the other case, there had been a prior reversal on appeal. So that case was subject to § 583.320’s three-years post remand rule. The 135 days of tolling was not enough to get that case within the three years. And the trial court didn’t abuse its discretion in declining to permit tolling based on other impracticalities in getting to trial claimed by plaintiffs, such as budgetary constraints, plaintiff’s claims of diligent prosecution, or defendant’s purported delays in complying with discovery. So that’s affirmed.

Reversed in part.