Filed 1/18/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUTH McCLAMMA STUEVE et al.,

 Plaintiffs and Appellants,

v.

BUCHALTER NEMER et al.,

 Defendants and Respondents.

 G052779

 (Super. Ct. No. 30-2010-00411651)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert J. 

Moss, Judge. Reversed.

Barnes Law, Robert E. Barnes and Keobopha Keopong for Plaintiffs and 

Appellants.

Greenberg Gross, Wayne R. Gross, Alan A. Greenberg, Evan C. Borges 

and Bret D. Hembd for Defendant and Respondent.

Sinclitico & Burns, Dennis J. Sinclitico, Hugh R. Burns and Daniel R. 

Mayer for Defendants and Respondents.

Bienert, Miller & Katzman, Thomas H. Bienert, Jr., Michael R. Williams 

and Ali Matin for Defendants and Respondents.

Edgerton & Weaver, Samuel Y. Edgerton III, Theodore C. Peters and 

Sabryne Coleman for Defendants and Respondents.
2

Generally, an action must be “brought to trial” within five years of the 

filing of a civil complaint. (Code Civ. Proc., § 583.310, et seq.)

1

 If the time period is not

tolled by statute, the case must be dismissed. (§§ 583.340, 583.360.) “In an action tried 

to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Bruns v. 

E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723 (Bruns), italics added.)

Here, with just three days remaining before the fifth anniversary of the 

filing of a civil complaint, a panel of 75 prospective jurors assembled in a courtroom for 

jury selection (voir dire). The court clerk administered an oath and the panel swore to 

give truthful answers. Seven days later, while voir dire was still in progress, defendants

moved to dismiss under the five-year dismissal statute. The trial court granted the 

motion, finding that the jury had not yet been “impaneled and sworn.”

We reverse. The jury was “impaneled” when the panel of prospective 

jurors assembled in the courtroom for voir dire. The panel was “sworn” when the

prospective jurors took an oath to respond truthfully. Accordingly, the action was, in 

fact, “brought to trial” within five years of the filing of the civil complaint. Thus, the trial 

court should not have granted defendants’ motion to dismiss.

I

FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2010, plaintiffs filed a civil complaint. Plaintiffs are the 

“heirs” (in lay terms) to the Alta Dena Dairy fortune built by the Stueve family. 

Defendants are several attorneys and law firms. The causes of action generally include 

allegations of fraud, as well as claims of negligent hiring and supervision.

 

1

Further undesignated statutory references will be to the Code of Civil Procedure.
3

On Monday, September 21, 2015, the trial court began the jury selection 

process in a large courtroom it had reserved for that purpose. A panel of 75 prospective 

jurors arrived in the large courtroom. The court clerk administered an oath, the parties 

gave “mini-opening” statements, and voir dire began.

On Wednesday, September 23, voir dire was still continuing. In the late 

afternoon, the trial court explained to the prospective jurors that the large courtroom was 

unavailable on Thursday, and that the court had other duties on Friday. The court 

declared a recess and adjourned until the following Monday.

On Monday, September 28, defendants filed a motion to dismiss the case 

on the grounds that the action had not been brought to trial within five years of the filing 

of the initial complaint (September 24, 2010). (§§ 583.310, 583.360.) The trial court 

excused the jurors, ordered further briefing, and conducted hearings on the motion.

On October 9, the trial court entered an order of dismissal. The court found 

that the action had not been brought to trial within five years. “Bruns is a California 

Supreme Court case from 2011 and states in no uncertain terms, ‘In an action tried to a 

jury, the action is brought to trial when the jury is impaneled and sworn.’” (Bruns, supra,

51 Cal.4th at p. 723, italics added.) Further, the trial court found that the five-year time 

period had not been statutorily tolled, except as to defendant Berger Kahn.

2

 

2

The trial court had, at an earlier point, dismissed defendant law firm Berger Kahn from 

the action. Plaintiffs appealed and were ultimately successful in bringing Berger Kahn 

back into the lawsuit prior to trial. (See Stueve Bros. Farms, LLC v. Berger Kahn (2013) 

222 Cal.App.4th 303.) The court therefore tolled the five-year deadline for the period of 

time (22 months) it had lost jurisdiction, but only as to Berger Kahn. (§ 583.340, subd. 

(b).) Given our ruling that the action was, in fact, brought to trial within five years, we 

need not consider plaintiffs’ alternative claims that the court improperly refused to toll 

the action as to the remaining defendants. (§ 583.340, subd. (c).)
4

II

DISCUSSION

The interpretation and application of statutes are questions of law that are 

reviewed de novo. (Redevelopment Agency v. County of Los Angeles (1999) 75 

Cal.App.4th 68, 74.) As always, our fundamental task is to determine the Legislature’s 

intent. (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268.) We first look at the words 

of the statute, giving them their plain and ordinary meaning. (Ibid.) But we do not look 

at the words of a statute in isolation. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) Rather, 

we look at the entire statutory scheme in order to determine the meaning of words taken 

in context. (Ibid.) If the language is clear, we need not turn to external sources such as a 

statute’s legislative history. (MacIsaac v. Waste Management Collection & Recycling, 

Inc. (2005) 134 Cal.App.4th 1076, 1083 [“If the statutory language is clear and 

unambiguous, our task is at an end, for there is no need for judicial construction”].)

Here, there is no dispute as to the facts. On September 24, 2010, plaintiffs 

filed a civil complaint. On September 21, 2015, jury selection began. On September 28, 

defendants moved to dismiss because the action had not yet been “brought to trial” within 

five years. (§ 583.310, et seq.)

3

 The trial court agreed and dismissed the action, relying 

on Bruns: “In an action tried to a jury, the action is brought to trial when the jury is 

impaneled and sworn.” (Bruns, supra, 51 Cal.4th at p. 723, italics added.)

Thus, we are presented with a pure question of law: is a jury “impaneled 

and sworn” when a panel of prospective jurors assembles in a courtroom for voir dire and 

 

3

“An action shall be brought to trial within five years after the action is commenced 

against the defendant.” (§ 583.310, italics added.) “An action shall be dismissed by the 

court on its own motion or on motion of the defendant, after notice to the parties, if the 

action is not brought to trial within the time prescribed in this article.” (§ 583.360, subd. 

(a), italics added.)
5

is sworn to tell the truth, or does that occur later when the actual trial jurors are sworn? 

We hold that a jury is “impaneled and sworn” in the first instance. We reach that 

conclusion based on: 1) how the words “impaneled and sworn” are used in the relevant 

statutes; and 2) how the phrase has been applied and understood in the relevant case law.

A. “Impaneled and Sworn” As Used in the Relevant Statutes

The process of selecting a jury is thoroughly laid out in the Trial Jury 

Selection and Management Act (the Act). (§ 190 et seq.) Although the Act is included in 

the Code of Civil Procedure, the Act encompasses both criminal and civil trials. (§ 192.) 

Within the Act, the Legislature has defined the meaning of several words and phrases. 

(§ 194.) “In examining the language [of statutes], the courts should give to the words of 

the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself 

specifically defines those words to give them a special meaning [citations].” (Halbert’s 

Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1239.)

By statute, the jury selection process begins with a “source list” of names. 

(§§ 194, subd. (m), 197.) A group of “prospective juror[s]” are randomly selected from 

the source list. (§§ 194, subds. (i) & (m), 197.) An appropriate number of prospective 

jurors are then summoned to court. (§ 208.) From that group, the jury commissioner 

then randomly selects “jury panels to be sent to courtrooms for voir dire.” (§ 219, subd. 

(a), italics added.) “‘Trial jury panel’ means a group of prospective jurors assigned to a

courtroom for the purpose of voir dire.” (§ 194, subd. (q), italics added.)

Once the trial jury panel is assembled in a courtroom, the court administers 

an “oath of truthfulness.” (See People v. Carter (2005) 36 Cal.4th 1114, 1174.) “Prior to 

the examination of prospective trial jurors in the panel assigned for voir dire, the 
6

following perjury acknowledgement and agreement shall be obtained from the panel, 

which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do 

you, and each of you, understand and agree that you will accurately and truthfully 

answer, under penalty of perjury, all questions propounded to you . . . in the matter 

pending before this court . . . .’” (§ 232, subd. (a), italics added.)

Once voir dire is completed, a second oath to “try the cause” is 

administered to the actual trial jurors: “As soon as the selection of the trial jury is 

completed, the following acknowledgment and agreement shall be obtained from the trial 

jurors, which shall be acknowledged by the statement ‘I do’: [¶] ‘Do you and each of 

you understand and agree that you will well and truly try the cause now pending before 

this court, and a true verdict render according only to the evidence presented to you and 

to the instructions of the court.’” (§ 232, subd. (b).) “‘Trial jurors’ are those jurors 

sworn to try and determine by verdict a question of fact.” (§ 194, subd. (o).)

The word “impaneled” is not defined within the Act, but generally means: 

“The act of the clerk of the court in making up the list of jurors who have been selected 

for the trial of a particular cause. All the steps of ascertaining who shall be the proper 

jurors to sit in the trial of a particular case up to the final formation.” (Black’s Law Dict. 

(6th ed. 1990) p. 752, cols. 1 & 2.) The word “sworn” is similarly not defined within the 

Act, but generally means providing an affirmative response to an oath or affirmation. 

(§ 2093 [a judge or a court clerk may “administer oaths or affirmations”].)

Based on the foregoing, we conclude that a jury is impaneled when the jury 

trial panel of prospective jurors is assembled in a courtroom for the purposes of voir dire. 

We note that the word “panel” is used consistently throughout the statutes and refers 

exclusively to the “prospective juror[s],” not the final “trial jurors.” Further, we conclude 
7

that a panel is sworn when the court (usually the court clerk) administers the initial oath 

of truthfulness and the panel collectively responds, “I do.” Although the actual trial 

jurors will ultimately be sworn again—this time to try the cause—that does not negate the 

fact that the panel was sworn at the beginning of voir dire.

Accordingly, in this case the jury was impaneled and sworn on September 

21, 2015, at the beginning of voir dire. That occurred within five years of the filing of 

the civil complaint (September 24, 2010). Thus, the action was, in fact, “brought to trial 

within five years” as required under the statute. (§ 583.310.)

B. “Impaneled and Sworn” As Applied and Understood in Case Law

Given the draconian remedy of dismissal, the question of when a case must 

be “brought to trial” has been the subject of extensive litigation, both in civil and criminal 

law.

4

 But we need only scrutinize five relevant cases in order to determine precisely

when a “jury is impaneled and sworn.” (Bruns, supra, 51 Cal.4th at p. 723.)

To start with, it is well settled that a jury trial begins when the jury is 

impaneled. (Silcox v. Lang (1889) 78 Cal.118, 124 (Silcox).) In Silcox, the plaintiffs lost 

at trial and appealed the trial court’s denial of one of their preemptory challenges during 

voir dire. (Id. at pp. 120-124.) The resolution of that issue turned on whether the trial 

court’s ruling occurred “at ‘the trial.’” (Id. at p. 124.) Our Supreme Court’s holding 

from 127 years ago is remarkably prescient: “The impaneling of a jury is a part of the 

 

4

The same “brought to trial” phrase appears in both the Code of Civil Procedure and the 

Penal Code. (§ 583.310; Pen. Code, § 1382, subd. (a).) Though the time frames are 

drastically different. Generally, absent a waiver, a criminal defendant must be “brought 

to trial” within 30, 45, or 60 days of his or her arraignment in the superior court. (Pen. 

Code, § 1382, subd. (a).)
8

trial, within the meaning of the [C]ode [of Civil Procedure], and any ruling of the court 

with respect thereto, if erroneous, is an error of law occurring at the trial . . . .” (Ibid.)

Further, in a jury trial, “the case is ‘brought to trial’ when the parties 

commence the examination of prospective jurors and the impanelment of the jury.” 

(Kadota v. San Francisco (1958) 166 Cal.App.2d 194, 195 (Kadota).) In Kadota, two 

days before the five-year dismissal period expired, “the parties regularly appeared in 

court for trial and a jury was impaneled and sworn.” Four days later, the trial court 

dismissed the action under the then existing version of the five-year dismissal statute, 

section 583. (Id. at p. 194.) The appellate court reversed and reasoned: “[Silcox] was 

decided in 1889 and section 583 was not adopted until 1905. [Citation.] We are entitled 

to assume that in using the language ‘brought to trial’ the Legislature was aware of this 

previous judicial determination that the impanelment of the jury is a part of the trial. 

[Citation.] [¶] The holding of our court in [Silcox] not only comports with the common 

understanding among lawyers and judges, but finds support in the rulings of the courts of 

other jurisdictions . . . .” (Id. at p. 195.) Kadota went on to cite multiple cases from 

various states that had reached a similar conclusion. (Id. at pp. 195-196.)

Moreover, a civil action is brought to trial within the meaning of the fiveyear dismissal statute when the jury trial panel (the venire) is sworn by the court clerk. 

(Hilliard v. A. H. Robbins Co. (1983) 148 Cal.App.3d 374 (Hilliard).) In Hilliard, just 

five days before the fifth anniversary of the filing of the civil complaint, “[t]he jury 

venire panel was sworn and voir dire examination of prospective jurors began . . . .” 

(Id. at p. 389, fn. omitted.) The appellate court noted that: “When the jury venire panel 

arrives in the courtroom and court is convened, the trial clerk administers an oath to the 

entire panel.” (Id. at p. 389, fn. 6.) Seven days later, during voir dire, the defendant 
9

moved to dismiss, arguing “that the case had not been ‘brought to trial’ because jurors 

who would actually try the case had not been sworn . . . .” (Id. at p. 389.) The trial court 

denied the motion and the appellate court agreed, citing Silcox and Kadota. (Ibid.) 

Further, Hilliard reasoned that: “A contrary result would invite an unscrupulous party to 

delay or prolong voir dire examination of prospective jurors until the expiration of the 

five-year period.” (Id. at p. 390.)

Here, the facts in this case are on all fours with Hilliard. In both cases, the 

venire was sworn by the court clerk within the five-year deadline. (§ 583.310.) 

Recognizing this, the trial court found that the appellate court’s holding in Hilliard is at 

odds with two Supreme Court cases: Hartman v. Santamarina (1982) 30 Cal.3d 762 

(Hartman) and Bruns, supra, 51 Cal.4th 717. We disagree.

In Hartman, supra, 30 Cal.3d at page 764, a civil action was approaching 

the last day for trial under the five-year dismissal statute. But plaintiff’s counsel was 

otherwise engaged. The trial court agreed to “‘pick a jury [and] then continue the 

matter’” in order to avoid a dismissal. “Twelve prospective jurors were put into the box, 

both sides passed for cause, the jury was sworn, and plaintiff moved for a continuance 

which was granted over defendant’s objections.” (Ibid.) The Supreme Court approved of 

the procedure finding that “plaintiff brought this case to trial within the meaning” of the 

statute. (Id. at p. 767.) The court held that the jury had been “impaneled and sworn,” 
10

even though the exercise was admittedly a “charade” done solely for the purpose of 

avoiding the five-year dismissal rule. (Id. at p. 766.)

5

In Bruns, the issue was unrelated to when an action has been “brought to 

trial” under the five-year dismissal statute. (Bruns, supra, 51 Cal.4th 717.) Rather, the 

case dealt with whether the statute’s tolling provisions applied under its facts. (Id. at pp. 

721-722.) But in an introductory paragraph, the Supreme Court stated: “In an action 

tried to a jury, the action is brought to trial when the jury is impaneled and sworn.”

6

 (Id. 

at p. 723.) That sentence was followed by a citation to Hartman. (Ibid.)

Here, the trial court said: “I agree with the moving parties that a jury trial 

commences when the jury is [i]mpaneled and sworn. I think that’s the correct 

interpretation of the law. [¶] Plaintiff is correct that Hilliard holds to the contrary that a 

jury trial commences when jury voir dire begins. However, Hilliard [is] a court of appeal 

decision from 1983. Bruns is a California Supreme Court case from 2011 and states in 

no uncertain terms, ‘In an action tried to a jury, the action is brought to trial when the jury 

is impaneled and sworn.’ [¶] The case cited in Bruns for that proposition is the Hartman

case, a 1982 court of appeals case. And in Hartman, it’s interesting that the trial court 

employed the fiction of putting 12 jurors in the box and swearing them . . . . [¶] But they 

 

5

As both parties discussed in their briefing, in a criminal case such a “charade” is 

unacceptable due to the speedy trial rights of the accused. (Rhinehart v. Municipal Court

(1984) 35 Cal.3d 772, 781-782 (Rhinehart).) In a criminal matter, in order to be brought 

to trial, the case must be “called for trial by a judge who is normally available and ready 

to try the case to conclusion. The court must have committed its resources to the trial, 

and the parties must be ready to proceed and a panel of prospective jurors must be 

summoned and sworn.” (Id. at p. 780, italics added.) Here, had this been a criminal trial, 

it appears that the more rigorous Rhinehart standards were also met.

6

Both parties agree that this sentence is dicta. But they also agree that it correctly states 

the law, though they disagree as to its meaning.
11

went through that fiction because it was necessary to do that. . . . There would be no 

need to employ such a fiction if that was not the rule.”

Unlike the trial court, we do not find the holding of Hilliard, supra, 148 

Cal.App.3d 378, inconsistent with the holding of Hartman, supra, 30 Cal.3d 762.

7

 In 

both cases, a panel of prospective jurors had assembled in a courtroom, though in 

Hilliard it was for the purpose of an actual trial, while in Hartman it was for the purpose 

of a “charade.” Therefore, in both cases, the prospective jurors were “impaneled,” and 

thereby met the first component of the “impaneled and sworn” requirement in order for 

an action to be “brought to trial” as stated in Bruns. (Bruns, supra, 51 Cal.4th at p. 723.)

Further, in Hilliard, supra, 148 Cal.App.3d 378, as well as Hartman, supra, 

30 Cal.3d 762, both panels were also “sworn.” Again, there are two oaths administered 

during the jury selection process. The first oath occurs when the prospective jurors swear 

to tell the truth during voir dire. (§ 232, subd. (a).) The second oath occurs when the 

trial jurors swear to “try the cause.” (§ 232, subd. (b).) In neither Hilliard nor Hartman

do the appellate opinions state exactly which oath was administered, but it is of no 

consequence. In Hilliard, the panel of prospective jurors presumably swore to tell the 

truth, because that is the oath that is given prior to voir dire. In Hartman, the prospective 

jurors presumably swore to “try the cause,” because there was no voir dire anticipated or 

necessary as part of the “charade.” But ultimately, it does not matter exactly which oath 

 

7

In fact, Hilliard quoted Hartman and both of those courts had relied on Kadota: “In 

Hartman . . . , the California Supreme Court discussed some procedures for bringing a 

jury case and a nonjury case to trial under the so-called ‘five-year statute.’ In . . . 

footnote [three], the court referred to Kadota without disapproval and noted ‘[t]he 

opinion’s statement of the issue, . . . , implies that a jury case is brought to trial “when the 

parties commence the examination of prospective jurors.”’ (Id., at p. 765, fn. 3.) In view 

of Kadota and the Supreme Court’s recent citation thereof [in Hartman], we can only 

conclude that a party can put a jury trial beyond the bar of [the five-year statute] by 

commencing the jury selection process.” (Hilliard, supra, 148 Cal.App.3d at p. 390.)
12

was administered because in both cases each panel of prospective jurors was “sworn,” 

and that is all that was required after the prospective jurors had been “impaneled.” 

(Bruns, supra, 51 Cal.4th at p. 723.)

In sum, in both Hilliard, supra, 148 Cal.App.3d 378, as well as Hartman, 

supra, 30 Cal.3d 762, an assembled group of prospective jurors was impaneled and 

sworn. In Hilliard, an appellate court found that the action had been “brought to trial 

within five years.” (Hilliard, supra, 148 Cal.App.3d at p. 389, original capitalization 

omitted.) In Hartman, the Supreme Court found that the action had been “brought to trial 

within five years.” (Hartman, supra, 30 Cal.3d at p. 762.) Accordingly, consistent with 

Hilliard and Hartman, as well as over 100 years of long-standing case law, in this matter 

the jury was impaneled and sworn within five years of the filing of the civil complaint; 

therefore, the action was brought to trial within five years of the filing of the civil 

complaint. (§ 583.310.) Thus, the action was improperly dismissed.

III

DISPOSITION

The judgment is reversed. Plaintiffs shall recover their costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.