Mediation Message No. 87

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 87

COURT CONGESTION, MEDIATIONS AND THE THREE-YEAR AND FIVE-YEAR RULES

In the halcyon days of adequate court-funding, little attention was given to Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, which holds that the five-year deadline to try a case is tolled when the action is submitted to mediation during the last six months of the five-year period. But since the three-year and five-year rules have again become a reality, it’s appropriate to revisit Gonzales.

In Gonzales, the complaint was filed on May 14, 1998 and, had the court not ordered a mediation on February 26, 2003, the five-year period would have ended on May 14, 2003. (See Mediation Message no. 41 on the power of and limitations on trial courts to order mediations.) However, because the mediation was ordered more than four years and six months after the case had been filed, C.C.P. §1775.7, subd. (b) came into play. That provision states, in part, that an action “submitted to mediation pursuant to (Civil Action Mediation, Title 11.6) more than four years and six months after the plaintiff has filed the action and ending on the date on which a statement of nonagreement is filed pursuant to Section 1775.9 shall not be included in computing the five-year period in Section 583.310.”

Gonzales then explained that the tolling of the five-year period starts, even if the mediation occurs after the four year and six month period has begun, at the commencement of the four year and six month period and not at the time the mediation has taken place. (Id. at p. 1129.) In Gonzalez, the four year, six month period began on November 14, 2002. Even though the court ordered mediation on February 26, 2003, some 116 days after November 14, 2002, because that order occurred within the four year, six month period, section 1775.7, subd. (b) became operative and the five-year statute was tolled retroactively to November 14, 2002 and continued to be tolled until the statement of nonagreement was filed on April 17, 2003. Accordingly, April 17 became the new four year, six month date and the five-year deadline was extended to October 17, 2003.

Gonzales also looked at the three-year statute (CCP § 583.410, subd. (a)) which, unlike the five-year statute that mandates dismissal if the deadline is missed, vests the trial court with discretion to dismiss a case. “In ruling on a motion under the three-year statute, the trial court considers several factors, including the plaintiff’s diligence in seeking to effect service of process, the diligence of the parties in pursuing discovery, the extent to which the parties have engaged in settlement discussions, and the nature of any extensions of time or other delay attributable to either party.” (Id. at p. 1131.)

Neither Gonzales nor section 1775, subd. (b) discuss whether a mediation, to toll the five-year rule, must be the first mediation in that case. As a practical matter, mediations, either because of court encouragement or the now common practice to initiate that process early on, now occur quite often within one year after a case has been filed. Regardless, in the absence of clarifying language, it probably can be argued that a renewed mediation after the four years and six months has passed, can still toll the running of the five-year rule until the parties have filed a statement of nonagreement with the court.

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.

1900 Avenue of the Stars. Suite 250

Los Angeles, California 90067

(310) 201-0010

Copyright, Michael D. Marcus May 2013

Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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