Mediation Message No. 19

MEDIATIONS AND THE FIVE-YEAR RULE

The just-published decision of Gonzalez v. County of Los Angeles (No. B168867; October 4, 2004; 2004 DJDAR 12228) clarifies how the order of a mediation at least four years and six months after a case has been filed impacts the requirement that the case be brought to trial within five years of its filing. (See CCP §583.310.)

A full discussion of the facts in Gonzalez is not required; it is necessary to note only that the case in question was filed on May 14, 1998 and, had the court not ordered a mediation on February 26, 2003, that the five-year period would have ended on May 14, 2003.
However, because the mediation was ordered more than four years and six months after the case was filed, CCP §1775.7(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.”

Here’s where Gonzalez becomes interesting. It holds that the tolling of the five-year period starts, even if the mediation is ordered 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 is ordered. In other words, the tolling is retroactive to the start of the four year, six month date. 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(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.

Gonzalez is also important for what it implies but did not specifically provide; that is, that court-ordered mediations prior to the commencement of the four year, six month period do not toll the five-year rule; that, for section 1775.7(b) to apply, the mediation must be ordered by the court rather than be a voluntary act of the parties and that a series of court-ordered mediations within the four year, six month period will consecutively toll the five-year statute.

Copyright, Michael D. Marcus October 2004

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