Tolling Accrues to the Diligent

Martinez v. Landry’s Restaurants, No. B278513 (D2d7 Aug. 28, 2018)

This wage and hour class action, filed in 2007, got dismissed under the five-year rule in Code of Civil Procedure § 583.310. Plaintiffs don’t argue that five years haven’t passed. But there’s potential tolling for four different periods. 


First, after the trial court ordered Defendants to produce the contact information for class members, Defendants took a writ. The Court of Appeal took up the writ and stayed enforcement of the order, but not the rest of the case. Ultimately, the writ was denied. All told, that burned 319 days.

Second, while the writ was pending, Defendant removed the case to federal court under CAFA. The district court ultimately remanded the case, because Defendant didn’t show an adequate amount in controversy. The Ninth Circuit subsequently permitted an appeal, but later affirmed the remand. The original removal took 75 days and the appeal another 169.

Third, after the trial court denied class cert, Plaintiffs appealed. Due to some other cases that were before the Supreme Court while the appeal was pending, the case bounced around between the Court of Appeal and the Supreme Court for a while. Eventually the Court of Appeal reversed the denial. That took 958 days.

Finally, after the remand, there was a bunch of fighting over discovery. The trial court granted a motion to compel. But Defendants took a long time to comply with it. That took up about nine months.

The parties don’t dispute that the 75 days the case spent on removal and the almost three years of appellate litigation over the class cert merit tolling under § 583.340 because the trial court was effectively deprived of jurisdiction during those periods. The dispute, however, is over (1) the 169 days for the Ninth Circuit remand appeal, (2) the nine months of discovery wrangling, and (3) the 319 days the writ was pending. Because the trial court formally had jurisdiction over the case during these periods and the case wasn’t fully stayed, to get tolling, Plaintiffs need to show that it was impossible, impracticable or futile to bring the case to trial during these periods under § 583.340(c).

Plaintiffs’ problem on this front is that they weren’t particularly diligent during these periods. They basically treated the case as if it were stayed during the Ninth Circuit appeal, even though it wasn’t. As to the discovery delay, those periods don’t merit tolling because every case has discovery delays and Plaintiffs didn’t do anything to speed that along. Indeed, a fair part of the problem is that Plaintiffs propounded the disputed discovery rather late in the case even though its relevance should have been clear from the outset. 

And with those periods un-tolled, the time spent on the writ doesn’t matter. Because subtracting 319 days still isn’t enough to put the case under five years.

Affirmed.