Filed 6/14/24 Gray v. Citigroup CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DIANA GRAY,

Plaintiff and Appellant,

v.

CITIGROUP, INC. et al., 

Defendants and Respondents.

 B328089

 (Los Angeles County

 Super. Ct. No. BC526888)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert S. Draper, Judge. Affirmed.

Thaler Law, Jesse J. Thaler, for Plaintiff and Appellant.

Bryan Cave Leighton Paisner, Alexandra C. Whitworth, 

Adam Vukovic, Anna Donald, for Defendants and Respondents.

_________________________
2

Diana Gray (then known as Diana Bogden) was one of 

many plaintiffs who filed this action in November of 2013, 

asserting claims arising out of their home loan transactions. The 

trial court dismissed Gray’s case on March 1, 2023, for failure to 

bring it to trial within five years. On appeal, Gray argues that

the court abused its discretion by not excluding from the five-year 

period certain times when, she asserts, it was impossible or 

impracticable to bring the case to trial. We find no abuse of 

discretion, and we affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second time this case has been on appeal. In 

2019, we reversed an order denying Gray’s motion to set aside a 

prior dismissal of the case. (Bogden v. Citigroup, Inc. (May 30, 

2019, B278352 [nonpub. opn.].) That dismissal had occurred as a 

result of her then-counsel failing to oppose defendants’ demurrers 

and, after the demurrers were sustained with leave to amend, 

failing to file an amended complaint.

Because this appeal is from an order having nothing to do 

with the merits of the case, we will only summarize the facts 

relevant to the dismissal. This case was filed on November 5, 

2013, as a mass-joinder action brought on behalf of Gray and 67 

other individuals. The original complaint alleged 24 causes of 

action arising from (1) intentionally placing borrowers, by means 

of deceptive tactics, into home loans they could not afford; 

(2) individual appraisal inflation to make it appear that plaintiffs

qualified for these loans; (3) market fixing; (4) deception in loan 

modifications; and (5) unauthorized foreclosures. The defendants 
3

included Citigroup, Inc. and Citibank, N.A. Of those defendants, 

only Citibank is a party to this appeal.1

On January 6, 2014, six named defendants (including 

Citigroup and Citibank) removed the case to federal court 

because one cause of action arose under the Sherman Anti-trust 

Act (15 U.S.C. § 1), over which federal courts have exclusive 

jurisdiction. Plaintiffs filed a motion to remand the case to 

superior court. In April of 2014, the federal trial court granted 

the motion to remand, but conditioned the order on plaintiffs 

dismissing their Sherman Act claim. By this time plaintiffs’

counsel had ceased participating in the litigation, and it was not 

until August 7, 2014, when the federal court dismissed the 

Sherman Act claim on its own motion, that the case was 

remanded back to the superior court.

Once returned to superior court, defendants demurred to 

the complaint. Plaintiffs’ counsel failed to respond to the 

demurrers and they were sustained on the ground of misjoinder. 

The court granted one plaintiff leave to amend within 10 days, 

but Citibank and its co-defendants served a notice of ruling 

stating, incorrectly, that all plaintiffs were granted leave to 

amend. Within a day or two after Citibank served this notice of 

ruling, plaintiffs’ counsel was suspended by the State Bar, and no 

plaintiff filed an amended complaint. After the time to amend 

1 Although respondents’ brief is filed on behalf of both 

Citigroup, Inc. and Citibank, N.A., only Citibank is named in 

Gray’s first, second and third amended complaints, only Citibank 

demurred to those complaints, and only Citibank answered 

Gray’s third amended complaint. Only Citibank moved to 

dismiss the third amended complaint and the trial court’s order 

dismissing the case named Citibank only. 
4

had passed, Citibank served a proposed order dismissing the case 

as to all plaintiffs. The court signed this order on June 12, 2015. 

In September of 2015 the court modified the order of 

dismissal to provide that it was without prejudice. In November 

of 2015, a new attorney for plaintiffs filed a motion for leave to 

file a first amended complaint as well as a separate motion to set 

aside the dismissal, supported by an affidavit of fault by the 

former counsel. The motion to vacate the dismissal was heard 

and denied in August of 2016. Gray’s prior appeal was from the 

order denying that motion.

On July 31, 2019, we issued the remittitur following Gray’s 

successful appeal, and the case returned to the superior court.

There ensued a series of amended complaints and responsive

demurrers. On August 3, 2021, the court sustained in part and 

overruled in part defendants’ demurrers to Gray’s third amended 

complaint. At that point Gray elected to stand on her pleading, 

and Citibank answered on October 6, 2021. On December 6, 

2021, the superior court held a case management conference, and 

set the case for trial on May 23, 2023. Citibank requested an 

earlier date, but the court responded that no earlier trial date 

was available owing to the backlog occasioned by the COVID 

emergency.

The register of actions shows no further activity in the case 

by either party until October 27, 2022, when Citibank filed its 

motion to dismiss Gray’s third amended complaint for failure to 

bring the case to trial within five years. Citibank acknowledged 

that Gray’s time was tolled during the appeal from the prior 

order dismissing the case, and that Gray was entitled to a sixmonth extension under emergency court rules addressing the 

COVID emergency. Gray opposed the motion, arguing that in 
5

addition to the time the case was on appeal, the five years was 

also tolled during the time the case was removed to federal court. 

In addition, she argued that the five years was also extended by 

additional periods during which it was “impossible, impracticable 

or futile” to bring the case to trial for reasons including the 

suspension and disbarment of her prior counsel, the time spent 

litigating defendants’ demurrers, and an additional 18 months 

because of the COVID trial backlog. She argued that these 

events tolled the five-year period until November 5, 2026 –

exactly 13 years after the case was filed.

On March 1, 2023, the trial court heard, and granted, 

Citibank’s motion to dismiss. The court agreed that the time 

spent on appeal and removal to federal court was excluded from 

the five years to bring the case to trial. The court did not address 

the six-month extension under court rules addressing the COVID 

emergency. Instead, the court calculated that the five years had 

run prior to the December 2021 case management conference. 

The court also rejected Gray’s arguments that additional tolling 

was appropriate. It found that Gray had failed to meet her 

burden of showing how her prior counsel’s suspension in 2015 

had affected her ability to bring the case to trial following the 

successful appeal, and that the COVID emergency had not 

affected Gray’s ability to prosecute her case. The court signed a 

written order dismissing the case on March 1, 2023, and an 

identical order prepared by Citibank on March 22.

Gray filed a timely notice of appeal from the signed order 

dated March 1.
6

DISCUSSION

A. The Governing Statute and Standard of Review

Code of Civil Procedure section 583.3102 expresses 

California’s five-year rule: “An action shall be brought to trial 

within five years after the action is commenced against the 

defendant.” The five-year rule is “mandatory and . . . not subject 

to extension, excuse, or exception except as expressly provided by 

statute.” (§ 583.360, subd. (b).) Thus, “[d]ismissal is mandatory 

if the requirements of section 583.310 are not met and an 

exception provided by statute does not apply.” (Martinez v. 

Landry’s Restaurants, Inc. (2018) 26 Cal.App.5th 783, 793.) 

There are four avenues of “extension, excuse or exception”

provided by statute. First, the parties may stipulate to extend 

the five-year period. (§ 583.330.) The other three means of 

tolling the statutory period are set out in section 583.340, which 

reads as follows: “In computing the time within which an action 

must be brought to trial pursuant to this article, there shall be 

excluded the time during which any of the following conditions 

existed: [¶] (a) The jurisdiction of the court to try the action was 

suspended. [¶] (b) Prosecution or trial of the action was stayed 

or enjoined. [¶] (c) Bringing the action to trial, for any other 

reason, was impossible, impracticable, or futile.” Here, neither 

party is arguing that there was a stipulation to extend the time 

to bring the case to trial, and no stay of the action was ever 

entered. Thus, we are only concerned with whether Gray’s time 

to bring the action to trial was extended under subdivisions (a) or 

(c) of section 583.340.

2 All undesignated statutory references are to the Code of

Civil Procedure unless otherwise specified.
7

Whether the trial court’s jurisdiction was suspended within 

the meaning of subdivision (a) of section 583.340 generally 

presents a legal issue that does not involve the exercise of 

discretion. (Spanair S.A. v. McDonnell Douglas Corp. (2009) 

172 Cal.App.4th 348, 358-359; see also Schwenke v. J & P Scott, 

Inc. (1988) 205 Cal.App.3d 71, 77 [section 583.340, subd. (a) “is 

an express statutory exception to the five-year bar, separate and 

distinct from exceptions based on impossibility or 

impracticability”]; Wills v. Williams (1975) 47 Cal.App.3d 941, 

946 [former § 583, subd. (f), now § 583.340, subd. (a), “ ‘deals with 

a defined state of facts and declares the legal consequence that 

flows therefrom’ ”].) 

On the other hand, the statutory exception under 

subdivision (c) — whether bringing the action to trial was 

“impossible, impracticable, or futile”— is subject to the trial 

court’s broad discretion. “We review for an abuse of discretion 

the trial court’s determination not to exclude periods during 

which plaintiffs contend it was impossible, impracticable or futile 

to bring the action to trial within the meaning of section 583.340, 

subdivision (c).” (Martinez v. Landry’s Restaurants, Inc., supra, 

26 Cal.App.5th at p. 794.) “Where a trial court has discretionary 

power to decide an issue, we are not authorized to substitute our 

judgment for that of the trial court. [Citation.] Reversible abuse 

exists only if there is no reasonable basis for the trial court’s 

action, so that the trial court’s decision exceeds the bounds of 

reason.” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th

1262, 1271.)
8

B. Time Was Properly Excluded Under Section 583.340 

(a)

The trial court excluded from the five-year calculation two 

periods during which the trial court lacked jurisdiction within the 

meaning of section 583.340, subd. (a). First, the court excluded 

the time during which this action was removed to federal court. 

(Spanair S.A. v. McDonnell Douglas Corp., supra, 

172 Cal.App.4th at p. 356 [“the state court’s jurisdiction is 

suspended when the defendant seeking removal gives notice to 

the state court clerk, and it is reacquired when the district court 

clerk gives notice to the state court clerk in the form of a certified 

copy of the remand order”].) While it was proper to exclude this 

time, the trial court only extended the five-year period by the 

three and one-half months requested by Gray. However, 

although the federal court remanded the case in an order dated 

April 17, 2014, that remand was conditioned on plaintiffs 

dismissing their claim under the Sherman Antitrust Act. The 

April 17 order expressly states that “[t]he remand order will not

become effective until the Court enters an order granting the 

Plaintiffs’ request to dismiss their Sherman Act claim.” We must 

also exclude the time that the remand order was stayed. (People 

v. Bhakta (2006) 135 Cal.App.4th 631, 636 [after an action is 

removed to federal court, “jurisdiction returns to the state court 

when a remand order is filed and served on the state court, 

unless that order is stayed”].)

The complaint was filed on November 5, 2013 with the fiveyear period originally ending on November 5, 2018. It was not 

until August 8, 2014, that the federal court entered and served 

its order dismissing plaintiffs’ Sherman Act claim on its own 

motion and lifting “the stay of the prior order granting the 
9

Motion to Remand.” Thus, the trial court’s jurisdiction was 

suspended from January 6, 2014, the date the case was removed

to federal court, until August 8, 2014. This amounts to 214 days 

that should have been excluded when calculating Gray’s time to 

bring this action to trial. So adjusted, on August 8, 2014, the 

date the case was remanded to superior court, Gray’s last day to 

bring the case to trial was extended to Friday, June 7, 2019.

The court also excluded the time consumed by Gray’s 

appeal of the order dated August 10, 2016, denying plaintiffs’

motion to vacate the earlier dismissal of her action. “Appeal, 

which removes the cause to the appellate court, suspends the 

jurisdiction of the trial court to try the case and tolls the 

dismissal statute.” (6 Witkin, Cal. Procedure (6th ed. 2021)

Proceedings Without Trial, § 440, pp. 915-916.) The time 

excluded runs from the date the notice of appeal is filed to the 

date the remittitur issues. (Bergin v. Portman (1983) 

141 Cal.App.3d 23, 25.) Here, Gray filed her notice of appeal 

from the dismissal order on October 7, 2016, and the remittitur is 

dated July 31, 2019. This amounts to 1,027 days during which 

Gray’s time to bring this action to trial was tolled. Thus, upon 

issuance of the remittitur on July 31, 2019, Gray’s last day to 

bring the action to trial was extended by an additional 1,027 

days, until Wednesday, March 30, 2022.3

3 Government Code section 6803 defines a year as “a period 

of 365 days,” and further provides that “[t]he added day of a leap 

year, and the day immediately preceding . . . shall be reckoned 

together as one day.” Thus, in calculating Gray’s last day to 

bring her case to trial we need not account for the “leap day” that 

occurred in February of 2020.
10

C. Time Was Properly Extended for the COVID 

Emergency 

Gray argues that the trial court should have extended her 

time to bring the case to trial because the COVID emergency 

made it “impossible, impracticable or futile” to proceed. Citibank 

responds that the trial court properly denied any discretionary 

extension, but that Gray was entitled to a six-month extension 

under emergency court rules implemented in response to the 

COVID emergency. Defendants are correct on both counts.

Government Code section 68115 provides that the 

Chairperson of the Judicial Council may, in the event of “a state 

of emergency being proclaimed by the President of the United 

States or by the Governor . . . by order authorize the court to . . . 

[e]xtend the time periods provided in Sections 583.310 and 

583.320 of the Code of Civil Procedure to bring an action to trial.” 

(Gov. Code, § 68115, subd. (a)(6).) On March 4, 2020, Governor 

Gavin Newsom declared a state of emergency as a result of the 

spread of the COVID-19 virus. (In re M.P. (2020) 52 Cal.App.5th 

1013, 1016.) On March 27, 2020, Governor Newsom issued 

Executive Order No. N-38-20, which “suspended any limitations 

in Government Code section 68115 or any other provision of law 

that limited the Judicial Council’s ability to issue emergency 

orders or rules, and suspended statutes that may be inconsistent 

with rules the Judicial Council may adopt.” (Id. at pp. 1016-

1017.) Acting on this authority, the Judicial Council issued 11 

emergency rules on April 6, 2020, including emergency rule 10(a), 

which reads as follows: “Notwithstanding any other law, 

including Code of Civil Procedure section 583.310, for all civil 

actions filed on or before April 6, 2020, the time in which to bring 

the action to trial is extended by six months for a total time of 
11

five years and six months.” (Cal. Rules of Court, appen. I, 

emergency rule 10(a).) Emergency rule 10 extended Gray’s time 

to bring her case to trial to Friday, September 30, 2022.

Gray, however, argues that “there was an 18-month period 

wherein bringing the action to trial was impossible, 

impracticable, or futile due to the COVID-19 pandemic and/or the 

court’s unavailability for trial,” and that the court abused its 

discretion by not extending her time to bring the action to trial. 

“ ‘The question of impossibility, impracticability, or futility is best 

resolved by the trial court, which “is in the most advantageous 

position to evaluate these diverse factual matters in the first 

instance.” ’ ” (Gaines v. Fidelity National Title Ins. Co. (2016) 

62 Cal.4th 1081, 1100.) Gray bears the burden of proving the 

circumstances justifying application of the exception under 

section 583.340, subd. (c) for impossibility, impracticability or 

futility. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 

717,731.) Gray must also show a causal connection between the 

claimed circumstances of impracticability and her inability to 

bring the case to trial. (De Santiago v. D & G Plumbing, Inc.

(2007) 155 Cal.App.4th 365, 372.) 

Gray is silent as to what she was unable to do, as a result 

of the COVID emergency, to bring her case to trial. Her only 

specific assertion is that the trial court set a trial date in 2023 

because of a backlog occasioned by COVID. Because Gray never 

asserts that she was prepared to try the case within the statutory 

time, she cannot be heard to complain about the backlog. 

(Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240, 

248 [declining “to adopt the absurd rule that time to commence 

trial is tolled under section 583.340(c) whenever a courtroom is 

not available for trial without consideration of a plaintiff’s 
12

readiness for trial”] (emphasis in original); Jordan v. Superstar 

Sandcars (2010) 182 Cal.App.4th 1416, 1421-1422 [court-imposed 

moratoriums on civil trials not excludable under section 583.340, 

subd. (c), where “it is apparent from the record that plaintiffs 

were not ready for trial at the time of the moratoriums”].) 

At the trial setting conference in December of 2021, Gray 

still had 10 months within which to bring her case to trial. “A 

plaintiff has an obligation to monitor the case in the trial court, 

to keep track of relevant dates, and to determine whether any 

filing, scheduling, or calendaring errors have occurred. This 

obligation of diligence increases as the five-year deadline 

approaches.” (Jordan v. Superstar Sandcars, supra, 

182 Cal.App.4th at p. 1422; see also Wilshire Bundy Corp. v. 

Auerbach (1991) 228 Cal.App.3d 1280, 1287 [“the burden must 

fall on the plaintiff to act with special diligence to ensure that the 

case is set for trial in a timely manner. Indeed, the diligence 

required of a litigant increases as the five-year deadline 

approaches”].) “Central to this duty [of diligence] is the specific 

duty to use every reasonable effort to bring the matter to trial 

within the five-year period.” (Tejada v. Blas (1987) 

196 Cal.App.3d 1335, 1340.) 

Measured by these standards, Gray was not diligent: as we 

have already observed, the register of actions shows no activity at 

all on Gray’s part following the December 2021 trial setting 

conference. Rather than silently acquiesce while the court set a 

trial date beyond the five-year period, Gray should have moved 

for a trial date within that period. “Where a plaintiff possesses 

the means to bring a matter to trial before the expiration of the 

five-year period by filing a motion to specially set the matter for 

trial, plaintiff’s failure to bring such motion will preclude a later 
13

claim of impossibility or impracticability.” (Tejada v. Blas, supra, 

196 Cal.App.3d at p. 1340.) Therefore, it was within the scope of 

the trial court’s discretion to reject Gray’s claim that courtroom 

unavailability did not make it impossible or impracticable for 

Gray to timely commence trial.

D. Gray’s Remaining Contentions Lack Merit

Gray makes two additional arguments for excluding 

additional time during which, she asserts, it was “impossible, 

impracticable or futile” to bring her case to trial. First, she 

argues that the court abused its discretion by refusing to exclude 

time during which her former counsel was suspended by the 

State Bar beginning in 2015. The trial court rejected this 

argument, noting that Gray first represented herself, and then 

retained new counsel following her former counsel’s suspension, 

and had therefore failed to show “how her former counsel’s 

unavailability in 2016 has rendered it impracticable to bring this 

case toward trial in the subsequent years.” Moreover, the 

explanation Gray offers is not supported by the record: although 

she now argues that she did not learn of the dismissal until 

November 2015, the record on her prior appeal includes her 

declaration dated July 21, 2015, stating that she learned of the 

dismissal in a telephone call on July 17, 2015, as well as Gray’s 

motion filed pro. per. on July 21, 2015, asking that the court 

reconsider the dismissal. Obviously, then, Gray was aware of the 

dismissal, and had responded to it, many months earlier than she 

has represented on this appeal. We agree with the trial court’s 

conclusion: after her successful appeal from the prior dismissal, 

Gray had almost three years remaining to bring this case to trial. 

She cannot blame her failure to do so by September 2022 on 

former counsel who was suspended in 2015. 
14

Gray’s final argument is that the court should have 

excluded time during which the parties were exchanging 

pleadings or awaiting rulings by the court. The trial court 

rejected this argument, noting that Gray cited no authority for 

excluding this time. Once again, we find no abuse of discretion 

by the trial court. Contrary to Gray’s argument, it is well

established that “ ‘ “[e]very period of time during which the

plaintiff does not have it within his power to bring the case to

trial is not to be excluded in making the computation.” ’ ” (Bruns

v. E-Commerce Exchange, supra, 51 Cal.4th at p. 731.) “Time

consumed by the delay caused by ordinary incidents of

proceedings, like disposition of demurrer, amendment of

pleadings, and the normal time of waiting for a place on the

court’s calendar [is] not within the contemplation of these

exceptions.” (Baccus v. Superior Court (1989) 207 Cal.App.3d

1526, 1532; see also J. C. Penney Co. v Superior Court (1959)

52 Cal.2d 666, 670 [time expended “in service of process, 

disposition of demurrers, amendment of the pleadings, if 

necessary, usual and reasonable time consumed in waiting for a 

place on the court’s calendar or in securing the attendance of a 

jury and suchlike usual and necessary proceedings” is not 

“excluded from a computation of the five-year period”].) To hold

otherwise would allow a plaintiff to litigate piecemeal every

delay, no matter how short, during which it was “impracticable”

to try her case, thus rendering the statute “utterly indeterminate,

subjective, and unadministerable.” (Sierra-Nevada MemorialMiners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d

464, 472.)
15

DISPOSITION

The order dated March 1, 2023, dismissing Gray’s case 

under section 583.310 is affirmed. Citibank is awarded its costs.

LEE, J.*

WE CONCUR:

MOOR, Acting P. J.

KIM, J.

* Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.