Filed 11/24/14 Colavincenzo v. Corby Gould Pools CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

NORMAN J. COLAVINCENZO, 

Plaintiff and Appellant,

v.

CORBY GOULD POOLS, INC., et al.,

Defendants and Respondents.

 H039430

 (Monterey County

 Super. Ct. No. M83809)

On March 27, 2007, plaintiff Norman J. Colavincenzo, as Trustee of the Pescadero 

Point Revocable Directional Holding Trust, sued 11 defendants for defects in the 

multimillion dollar construction/renovation of a swimming pool and spa in Pebble Beach.

Between 2007 and 2012, various defendants obtained multiple continuances over 

Colavincenzo’s objections. Most of the defendants settled. In 2012, the four remaining 

defendants moved to dismiss the case for failure to bring it to trial within five years 

(Code Civ. Proc., § 583.360).1 The trial court granted the motions of defendants Aloha 

Pool & Spa (Aloha) and Corby Gould Pools, Inc. (Corby) and dismissed Colavincenzo’s 

complaint against them with prejudice.2

 

1

Subsequent statutory references are to the Code of Civil Procedure unless 

otherwise noted.

2

The trial court denied the motions of the other two defendants, Earl Adams Tile 

Coping and Plastering, Inc. (Adams) and Associated Rebar (Associated), finding that 
2

Colavincenzo appeals from the trial court’s orders granting Aloha’s and Corby’s 

motions. He contends that the trial court (1) improperly based the dismissals on delays 

entirely outside of his control, (2) erred in ruling that the doctrine of equitable estoppel 

did not bar Aloha’s and Corby’s motions, (3) erred in finding Colavincenzo responsible 

for the running of the five-year statute, (4) exceeded its jurisdiction in sua sponte 

reversing its prior rulings that the five-year statute was tolled, (5) erred in finding that the 

discovery stay imposed by the special master was only partial, (6) erred in depriving 

Colavincenzo of the benefit of tolling “merely because [he] stated [he] was prepared to 

try the case prior to the running of the statute,” and (7) erred in dismissing Aloha and 

Corby with prejudice. We reverse the orders.

I. Background

The complaint was filed on March 27, 2007, and trial was originally set for 

October 25, 2010. A special master was appointed in 2008 to manage the litigation. In 

February 2009, a stipulated case management order stayed formal discovery “except for 

good cause demonstrated on application to the Special Master.” Colavincenzo’s repeated 

efforts to have the stay lifted were unsuccessful but in April 2010, the special master 

ordered defendants to undertake destructive testing and to provide certain other 

information. 

In September 2010, four defendants that have since settled moved to continue the 

trial on the ground that the stay of formal discovery made it “logistically impossible” to 

adequately prepare for trial. At the hearing before the Honorable Kay T. Kingsley, 

Colavincenzo asked for “the earliest date” the court could accommodate and suggested 

 

they were judicially estopped from reversing the positions they took to obtain a 

continuance beyond the five-year deadline. Adams and Associated petitioned this court 

for a writ relief. (Associated Rebar et al. v. Monterey Superior Court (Colavincenzo et 

al.), H039407.) By separate order, we summarily deny their petition.
3

January or February 2011. The court observed, “You’re at four years next March” but 

“we’re a small court with few judges.” The court told the parties that “the soonest” 

available date was “possibly” late April. The court continued the trial to June 6, 2011. 

The discovery stay was lifted in April 2011. In May 2011, a defendant that has 

since settled sought a further continuance after its counsel suffered a brain hemorrhage. 

Adams, Associated, and a third defendant joined in the motion. The moving parties 

claimed insufficient discovery. Colavincenzo and six other parties were unable to 

participate in the hearing because their court call was transferred to the wrong 

department. The trial court continued the trial to February 6, 2012. 

In January 2012, Colavincenzo applied ex parte to continue the trial to 

March 19, 2012 or to a date certain before the five-year deadline, to give the parties “the 

best possible shot” at resolving the case short of trial. The application was unopposed. 

The trial court continued the trial to March 19, 2012. It ordered the parties to proceed 

with mediation. 

On February 29, 2012, Adams, Associated, and a third defendant applied ex parte 

to continue the trial until August 2012 because their counsel were in trial in Napa in 

another matter. The trial was expected to last “at least four months.” Defendants

acknowledged in their motion papers that “there is no question of plaintiff failing to 

diligently prosecute its case. Rather, it is the unavoidable circumstances of defense 

counsel which require a continuance of the trial.” Adams and Associated argued as an 

alternative ground for the requested continuance that the stay of formal discovery made it 

“impossible, impracticable, or futile” to bring the case to trial by March 19, 2012. They

declared that “the lengthy discovery stay created a situation where, for an extended 

period of time, bringing the case to trial was simply not possible.” They argued that 

“[s]ome or all of this period of time should be excluded from the five years, which

allow[s] more than enough time for a continuance of this trial. Plaintiff will therefore not 
4

find itself subject to the five-year statute because when the tolling during the discovery 

stay is taken into account, this case is nowhere near the five-year limit.” 

Colavincenzo opposed the continuance, expressing concern that those defendants 

that had ignored his ex parte application would “swoop in if the Court continued this 

matter, and try to seek dismissal of the case against them.” Judge Kingsley responded 

that she had discretion to find that the discovery stay tolled the five years, “which means 

that they can’t make that argument.” “So I appreciate your concern about the five years,

but I think your position is protected if the Court determines that the five years was tolled 

for the period of time that the discovery was tolled in this case.” “I am determining that 

the period of time that discovery was stayed in this case by the Special Master has also 

tolled the five-year statute for purposes of when that would have run . . . .” The trial 

court declined Colavincenzo’s suggestions to have the case trail the Napa case or to set a 

status conference for an update on the progress of the Napa case. The court vacated the 

March 19, 2012 trial date, scheduled a March 9, 2012 trial setting conference, and 

instructed Adams’s counsel to prepare an order. 

Colavincenzo’s counsel approved the form of the proposed order that Adams’s 

counsel prepared, and Adams submitted it to the trial court on March 5, 2012. Both 

counsel assumed that the order was filed. Colavincenzo learned later that the trial court 

had returned it to Adams’s counsel unsigned and unfiled. 

At the March 9, 2012 trial setting conference, Colavincenzo reiterated that his 

“main concern” was the five-year statute. Judge Kingsley responded that “[t]he finding 

that I made [at the February 29, 2012 hearing], and I believe it was supposed to be 

incorporated into an order after hearing by [Colavincenzo’s counsel], which I don’t see 

yet, the -- I found that the five-year statute was tolled during the time that the matter was 

stayed by the special master.” (Italics added.) “So you’ve got whatever additional time, 

which I think was about two years, to get it to trial based on that determination. 

Now . . . , you need to get an order I think would be appropriate, but I think we have 
5

everybody here now that can hear that was the Court’s determination.” (Italics added.) 

The court told the parties that an October 1, 2012 trial date was the earliest the calendar 

could accommodate. The court rejected Colavincenzo’s suggestion that it order 

defendants to give notice when their Napa trial ended. The court continued the trial to 

October 29, 2012, seven months past the five-year deadline. 

Discussions about revising the earlier order (which everyone assumed had been 

filed) to specify the starting and ending dates of the tolled period followed. 

Colavincenzo’s counsel volunteered to submit a proposed order by April 30, 2012. 

The Napa case settled on March 12, 2012. Notwithstanding numerous e-mail and 

telephone requests by Colavincenzo for status updates, defendants did not apprise him or 

the court of the settlement. 

The proposed order that Colavincenzo had volunteered to submit by 

April 30, 2012 was not circulated until May 23, 2012. It specified the tolled period as 

February 2009 to April 27, 2011. No defendant objected to the specified period of 

tolling. Colavincenzo’s counsel “inadvertently” neglected to file the proposed order.

On October 24, 2012, Colavincenzo’s counsel told the court that he was in trial in 

Santa Barbara in another matter. He applied ex parte for an order that trial in this matter 

would trail the Santa Barbara trial. The court denied the application because of its 

concern “about the five years.” The court explained that “there was an agreement [at the 

February 29 and March 9, 2012 hearings] that we were safe continuing [the trial] six 

months, which is [why] we put it out from the March to the October date -- maybe a little 

bit more than that, because I agreed that there could be some tolling because of the stay 

on discovery imposed by the Special Master.” The court noted that the discovery stay 

was not “a complete and absolute stay . . . .” The court told Colavincenzo, “I think 

there’s a strong argument to be made that the five years [were not] tolled from 

February 26, 2009, which is when the Special Master’s Order putting stays on discovery 

and restrictions on discovery in place [was filed], through April 27, 2011.” However, “I 
6

think you can make a strong argument that it was tolled from February 26, 2009, maybe, 

although there wasn’t a complete stay . . . .” Judge Kingsley said she never received the 

proposed order that Colavincenzo was supposed to have prepared by April 30, 2012. 

Nonetheless, “I think you probably are on good grounds as Plaintiff[] that everybody has 

agreed that it’s tolled through October 29th, but if you don’t get started on October 29th, 

you may have a tolling problem of the five years. . . . [¶] . . . [¶] . . . And without an 

order clearly stating when it’s tolled from and if we’re not ready to go on the 29th, my 

next setting would be an OSC on whether it is mandatory, whether the Court is required 

to dismiss it because we’ve gone beyond the five years.” Counsel for Aloha then 

requested that “if the Court is continuing this trial as set presently [for October 29, 2012], 

I’d ask the Court to make it clear that it is without prejudice to the Defendants to raise the 

five-year issue.” Counsel for Adams concurred. The trial court denied the application to 

continue the trial beyond October 29, 2012, “because this Court is concerned, and I don’t 

want to run afoul and let this get it out of the five years . . . I’m going to deny your ex 

parte application to trail it to the 2nd [of November]. It’s also just not feasible.” 

The parties appeared for trial on October 29, 2012. Judge Kingsley noted that the 

parties had exchanged competing orders specifying the tolled period but “[n]o order was 

ever submitted” to the court. She announced that “[t]he Court on its own motion, and 

within its inherent authority and under CCP 1008 is reconsidering its decision, and 

vacating it. I think it should be determined fresh, anew by the trial court.” 

The case was assigned to the Honorable Thomas W. Wills. The four remaining 

defendants promptly filed separate motions to dismiss (§ 583.360) asserting that the 

partial stay of discovery had not tolled the five-year statute. 

Colavincenzo argued in opposition that defendants were estopped from moving to 

dismiss because the trial was continued beyond the five-year point on their express 

representations that the five-year statute was tolled by the stay of formal discovery. He 

calculated that the statute was tolled for a minimum of 33 months: 26 months while 
7

formal discovery was stayed plus seven months from March 19 to October 29, 2012, the 

date the trial was continued beyond the five-year mark over his objections. He argued 

that he had been reasonably diligent and “could not have done more to bring this matter 

to trial sooner.” 

The trial court held a hearing on November 19, 2012. Judge Wills declared that 

the question of tolling involved “two distinct periods.” The first was when discovery was 

stayed. The second was when certain defense counsel were in trial in Napa. The court 

opined that any stay was “at best here, . . . only a partial stay” since the case management 

order “contemplate[d]” some discovery. The court stated (incorrectly) that Judge 

Kingsley “wasn’t presented with the actual case management order” and thus had to take 

“on faith what the parties are telling her: That there was a complete stay of discovery, 

and there wasn’t.” The court opined that “the judge did not have an opportunity to rectify 

the assignment of a trial date at the end of October because the order was never presented 

to be signed. And it’s clear, Judge Kingsley did not know the period of any -- any stay 

that had been ordered by the special master.” “So I do not believe that it was impossible, 

impracticable, or futile to get it to trial because of the order made by the special master.” 

The court next addressed the period of time when some defense counsel were in 

trial in Napa, noting that Colavincenzo opposed those defendants’ request for a 

continuance. “And because that period . . . occurred with less than six months remaining 

on the [five-year] statute, then six months gets tacked on.” (§ 583.350.) The court did

not mention defendants’ failure to apprise the court or Colavincenzo when their Napa 

case settled. The court stated that the end of the period of tolling on account of the Napa 

trial “would have been March 12th, when that settled.” “But that would give [you] only 

until September 12, 2012 to try it.” “[N]obody said exactly what the period of tolling is 

going to be” and no order was presented, so “the judge ha[d] no way to try to rectify or 

correct that trial log.” The court withheld a ruling until the next day. 
8

Colavincenzo argued in supplemental briefing that the five-year statute was tolled 

notwithstanding the procedure for discovery described in the case management order 

because that procedure was denied to him. He also argued that his failure to submit a 

formal order was of no moment since Judge Kingsley was well aware of the case 

management order’s terms and would not have changed her ruling had a formal order 

been submitted. Finally, Colavincenzo argued that even if the trial court’s tolling finding 

was wrong, the error should not be attributed to him because any such error was a 

circumstance beyond his control. 

On November 20, 2012, the court granted Aloha’s and Corby’s motions and 

dismissed them from the case with prejudice. 

The parties stipulated that the five-year period would be tolled from 

November 20, 2012 until six months after a final decision from this court. Colavincenzo 

filed a timely notice of appeal.3

II. Discussion

A. Impossibility

Colavincenzo maintains that courtroom unavailability and Judge Kingsley’s 

rulings with respect to tolling and the five-year statute were matters outside of his control 

that made it impossible to bring the case to trial within five years. He contends that 

Judge Wills abused his discretion in concluding otherwise. We agree.

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

against the defendant.” (§ 583.310.) “An action shall be dismissed by the court on its 

 

3 Colavincenzo also petitioned for a writ of mandate compelling the trial court to 

overturn the orders. (Colavincenzo v. Superior Court (Aloha Pool et al.), H039294.) On 

January 7, 2014, we issued an order to show cause why the petition should not be 

granted. (Ibid.) Because his writ petition raises the same issues as the appeal, which we 

decide in his favor, we will discharge the order to show cause and deny the writ petition 

as moot. (Barham v. Superior Court (1941) 18 Cal.2d 889.) 
9

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 by this article.” (§ 583.360, subd. (a).) “The 

requirements of this article are mandatory and are not subject to extension, excuse, or 

exception except as expressly provided by statute.” (§ 583.360, subd. (b).)

Colavincenzo initiated this action on March 27, 2007. Unless a statutory 

exception applies, the last day to bring the case to trial was March 27, 2012. (§§ 583.310, 

583.360.)

In computing the five-year period, the trial court must exclude the time during 

which it was “impossible, impracticable, or futile” to bring the case to trial. (§ 583.340, 

subd. (c); Rose v. Knapp (1951) 38 Cal.2d 114, 118.) The determination must be made 

“‘in light of all the circumstances in the individual case, including the acts and conduct of 

the parties and the nature of the proceedings themselves. [Citations.] The critical factor 

in applying these exceptions to a given factual situation is whether the plaintiff exercised 

reasonable diligence in prosecuting his or her case.’ [Citations.]” (Bruns v. E-Commerce 

Exchange, Inc. (2011) 51 Cal.4th 717, 730-731 (Bruns).) “ ‘“The ‘reasonable diligence’

standard is an appropriate guideline for evaluating whether it was impossible, 

impracticable, or futile for the plaintiff to comply with [the statutory five-year constraint] 

due to causes beyond his or her control.”’ [Citation.]” (Id. at p. 731.) “Impossibility 

occurs when there is no courtroom available.” (Rose v. Scott (1991) 233 Cal.App.3d 537, 

542 (Rose).) Impossibility also occurs when a trial court denies a motion to set the matter 

for trial “solely because of its mistaken belief that the five-year statute was tolled.” (Pat 

Rose Associates v. Coombe (1990) 225 Cal.App.3d 9, 17 (Pat Rose Assoc.), disapproved 

on another ground in Adams v. Murakami (1991) 54 Cal.3d 105, 115-116.) “‘The excuse 

must be liberally construed as applied to the bringing to trial requirement. This . . . is in 

recognition of the fact that . . . bringing a case to trial frequently may be hindered by 

causes beyond the plaintiff’s control.’” (Pat Rose Assoc., at p. 17.) 
10

“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.’ [Citation.] The plaintiff bears the burden of proving that 

the circumstances warrant application of the section 583.340(c) exception. 

[Citation.] . . . . The trial court has discretion to determine whether that exception 

applies, and its decision will be upheld unless the plaintiff has proved that the trial court 

abused its discretion. [Citations.]” (Bruns, supra, 51 Cal.4th at p. 731.)

Colavincenzo met his burden here. The record amply supports a finding that he 

exercised reasonable diligence in prosecuting the case. Despite the two-year stay of 

formal discovery and other obstacles, he was prepared to go to trial on March 19, 2012. 

“Plaintiff had prepared a defect list and cost of repair with the participation of a team of 

experts, had participated in over a dozen depositions since the lifting of the discovery 

stay, and exchanged voluminous document productions.” 

The trial was continued beyond the five-year mark over Colavincenzo’s 

objections. Judge Kingsley assured him on the record that his position was “protected” 

by the court’s express finding that the stay of formal discovery tolled the five-year statute 

for “about two years.” No party challenged that general finding. Additionally, “not a 

single defendant objected to the dates” when Colavincenzo belatedly circulated the 

proposed order specifying that the tolled period ran from February 2009 to 

April 27, 2011. 

On this record, Judge Kingsley’s ruling that the five-year statute was tolled, her 

decision to continue the trial beyond the five-year mark, and her decision to vacate her 

ruling seven months after the deadline passed were circumstances beyond Colavincenzo’s 

control. (Pat Rose Assoc., supra, 225 Cal.App.3d at pp. 16-17.) The court’s calendaring 

constraints were similarly beyond Colavincenzo’s control. (Rose, supra, 233 Cal.App.3d 

at p. 542.) There was no lack of diligence on Colavincenzo’s part. Instead, 
11

circumstances beyond his control made it “impossible” to bring the case to trial before 

the five-year deadline. (§ 583.340, subd. (c).)

Judge Wills’s lack of diligence finding was based on Colavincenzo’s failure to 

submit the proposed order to Judge Kingsley by April 30, 2012. The court reasoned that 

because Judge Kingsley “wasn’t presented with the actual case management order,” she 

had to take “on faith what the parties are telling her: That there was a complete stay of 

discovery, and there wasn’t.” The record does not support this assertion. Judge Kingsley 

signed a February 11, 2011 pretrial order stating that “[a]ll discovery, except as set forth 

below, continues to be stayed, except for good cause demonstrated on application to the 

Special Master, and as provided in this and any future Case Management Order approved 

by the Special Master and the Court.” Additionally (and contrary to Judge Wills’s 

assertion) a copy of the case management order was attached to Adams’s 

February 29, 2012 ex parte application to continue the trial. Judge Kingsley also told the 

parties at the February 29, 2012 hearing that she was “satisfied with my review of the file 

and my familiarity because I’m aware of [the special master’s] situation.” Thus, Judge 

Kingsley did not need to “take on faith what the parties were telling her.” She was well 

aware of the terms of the case management order and of the status of discovery in the 

case when she made her tolling finding and continued the trial to October 29, 2012.

Judge Wills also concluded that Judge Kingsley “did not have an opportunity to 

rectify the assignment of a trial date at the end of October because the order was never 

presented to be signed. And it’s clear, Judge Kingsley did not know the period of any --

any stay that had been ordered by the special master.” The statement assumes that a 

proposed order delineating the precise dates of the tolled period would have caused Judge 

Kingsley to recognize some “error” and change her ruling. The assumption is flawed. 

Judge Kingsley took pains to ensure that her February 29, 2012 ruling was “crystal clear” 

to Colavincenzo. No defendant asserted any error at the hearing. No defendant objected 

to the specified period of tolling (February 2009 to April 27, 2011) when the proposed 
12

order after hearing was belatedly circulated to all counsel. The 26-month period that the 

proposed order specified was entirely consistent with Judge Kingsley’s estimate of 

“about two years.” 

Even if Judge Kingsley mistakenly found the five-year statute tolled, the mistake 

cannot be attributed to Colavincenzo. (Pat Rose Assoc., supra, 225 Cal.App.3d at p. 17.) 

He kept the five-year issue at the forefront. He opposed Adams’s and Aloha’s 

application to continue the trial beyond the five-year deadline. He should not be 

penalized because the trial court’s calendar constraints precluded a trial date before 

October 2012. (Rose, supra, 233 Cal.App.3d at p. 542.) The eight-month period 

between Judge Kingsley’s February 29, 2012 ruling and her October 29, 2012 vacation of 

that ruling should have been excluded from the computation of the five-year period. 

(§ 583.340, subd. (c).) The deadline should have been extended six months beyond that. 

(§ 583.350.). Judge Wills misapplied the law when he dismissed the case against Aloha 

and Corby. “ ‘A trial court’s decision that rests on an error of law is an abuse of 

discretion.’ ” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1361.)4 The 

orders granting Aloha’s and Corby’s motions and dismissing them from the case must be 

reversed.

B. Defendants’ Arguments

Defendants’ arguments do not persuade us otherwise. Aloha relies on Bruns to 

support its argument that the stay of formal discovery did not toll the five-year statute

because the stay was only partial. Bruns construed section 583.340, subdivision (b), 

 

4 Our conclusion makes it unnecessary for us to address Colavincenzo’s additional 

arguments (1) that equitable estoppel barred all four moving defendants from obtaining 

dismissal based on Colavincenzo’s failure to bring the case to trial within five years and 

likewise barred the trial court from granting Aloha’s and Corby’s motions, (2) that Judge 

Kingsley lacked the authority to vacate her original ruling, and (3) that Judge Wills’s notolling ruling was unsupported by substantial evidence. 
13

which automatically excludes from the five-year period any time during which 

“‘[p]rosecution or trial of the action was stayed or enjoined.’” (Bruns, supra, 51 Cal.4th 

at p. 721.) Bruns holds that the subdivision (b) exclusion applies “only when the stay 

encompasses all proceedings in the action.” (Bruns, at p. 722.) Bruns does not hold that 

a partial stay of proceedings can never be excluded from the five-year period. As the 

court observed, partial stays are governed by section 583.340, subdivision (c). (Bruns, at 

p. 730.) “The Court of Appeal did not consider whether subdivision (c) of section 

583.340 applied to those time periods in which a partial stay was in effect because it 

found those time periods came within subdivision (b).” (Bruns, at p. 732.) The high 

court remanded the case to allow the Court of Appeal to consider whether the trial court 

abused its discretion in not excluding the time periods in which a partial stay was in 

effect under the subdivision (c) exclusion. (Ibid.) Aloha’s reliance on Bruns is 

misplaced. 

Aloha next argues that the trial court properly granted its motion to dismiss

because the stay of formal discovery did not make it impossible, impracticable or futile 

for Colavincenzo to bring this case to trial within five years. Aloha bases this argument 

on Colavincenzo’s statement that he was prepared to go to trial on March 19, 2012,

despite the two-year stay of formal discovery and other obstacles. Aloha ignores the fact 

that Judge Kingsley continued the trial over Colavincenzo’s objection. It ignores the fact 

that Judge Kingsley assured Colavincenzo on the record on February 29, 2012, and again 

on March 9, 2012, that his position was “protected” by her express finding that the stay of 

formal discovery tolled the five-year statute for “about two years.” Whether 

Colavincenzo was prepared to go to trial makes no difference here. Whether Judge 

Kingsley’s initial tolling ruling was correct or incorrect also makes no difference because 

even if she mistakenly found the statute tolled, the mistake cannot be attributed to 

Colavincenzo. (Pat Rose Assoc., supra, 225 Cal.App.3d at p. 17.) Judge Kingsley’s 

ruling that the five-year statute was tolled, her decision to set the trial months after the 
14

deadline (in part because of calendar constraints), and her decision to vacate her ruling 

seven months later were circumstances beyond Colavincenzo’s control that made it 

impossible for him to bring the case to trial before the five-year deadline. (Pat Rose 

Assoc., at pp. 16-17; Rose, supra, 233 Cal.App.3d at p. 542.) 

Aloha and Corby maintain that Colavincenzo was not reasonably diligent in 

prosecuting the action. Aloha conclusorily asserts that his failure to submit the order 

“giving the parties notice of the new October 29, 2012 trial date” and specifying the 

tolled period was “another example of [his] failure to diligently prosecute this case and 

deal with the five year statute issue.” Aloha does not develop this argument further or 

cite relevant authority. Nor does it explain how timely submission of the proposed order 

would have made a difference where it was undisputed that all parties had notice of the 

new trial date and no one raised any objection to the proposed period of tolling.

“‘Appellate briefs must provide argument and legal authority for the positions taken. 

“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned 

argument and citations to authority, we treat the point as waived.”’ [Citation.] ‘We are 

not bound to develop appellants’ argument for them. [Citation.] The absence of cogent 

legal argument or citation to authority allows this court to treat the contention as waived.’ 

[Citations.]” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) 

Here, where Aloha failed to support its argument with reasoned argument or citations to 

authority, we reject the contention as not properly raised.

Corby makes a similar argument, asserting that Colavincenzo “breached his duty 

to inform the court of the statutory deadline” and “negligently relied on the 

October 29, 2012 trial date.” Corby asserts that if Colavincenzo had timely presented the 

proposed order, “both the Court and Plaintiff could have taken steps to avoid the running 

of the statute, such as making a motion for preference or setting a new trial date.” There 

are a number of problems with this argument. First, it incorrectly assumes that Judge 

Kingsley was unaware of the statutory deadline. The record establishes the fallacy of any 
15

such assumption. The argument also ignores the fact that October 1, 2012 (six months 

beyond the five-year deadline) was the earliest date the court’s calendar could

accommodate. Most importantly, it ignores the fact that Judge Kingsley had already 

determined on the record that the stay of formal discovery tolled the five-year statute for 

“about two years.” Colavincenzo was entitled to rely on the trial court’s assurance that 

his position was protected. (See Moran v. Superior Court (1983) 35 Cal.3d 229, 240.) 

We reject Corby’s argument that Colavincenzo was not reasonably diligent.

III. Disposition

The December 18, 2012 and December 21, 2012 orders granting Aloha’s and 

Corby’s motions to dismiss are reversed.
16

___________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Elia, J.