1

Filed 12/12/22 (see concurring opinions)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JEAN SETO et al.,

Plaintiffs and Appellants,

v.

KWOK HUNG SZETO et al.,

Defendants and 

Respondents.

 A163846, A164849,

 A164925

(San Francisco City & 

County Super. Ct. No. 

CGC 15548180)

These consolidated appeals concern the trial court’s 

dismissal of a shareholder derivative complaint for failure to 

bring the action to trial within five years (Code Civ. Proc., 

§§ 583.310, 583.360) and two subsequent awards of attorney’s 

fees.1 Plaintiffs argue the trial court erred by dismissing their 

complaint because its calculation of the five-year deadline 

improperly failed to exclude a period of approximately six months 

between when the parties signed a settlement agreement and 

when defendants abandoned it. 

Determination of the five-year deadline in this case 

requires us to analyze the distinction between contract formation

and conditions precedent to contract performance. As explained 

1 Undesignated statutory references are to the Code of Civil 

Procedure.
2

below, we agree with plaintiffs that the court miscalculated the 

five-year period under sections 583.310 and 583.340 because it 

erroneously viewed the failure to satisfy a condition precedent to 

performance as a bar to valid contract formation. We shall

therefore reverse the dismissal order and the subsequent fee 

awards.

BACKGROUND

On September 28, 2015, Jean W. Seto, in her capacity as 

the trustee of a trust, filed a shareholder derivative complaint on 

behalf of ARP-I, LLC and ARP-II, LLC against Kwok Hung Szeto. 

About eight months into the case, Seto, together with HM Wong 

Group, Tina Wong Chin, Alexander Hans Wong, and Eric Kim 

Wong (collectively, plaintiffs) filed a first amended complaint that 

added Nikki So-Kuen Szeto and Patrick Szeto as defendants and 

named the LLCs as nominal defendants. About three years and 

eight months into the case, plaintiffs filed a fourth amended 

complaint, which added as defendants Charles M. Thompson and 

Thompson Welch Soroko & Gilbert, LLP (attorney defendants), 

who were alleged to have provided legal advice to the nominal 

defendants. 

While this litigation was proceeding, the trial court stayed 

the proceedings for various reasons for a total of 127 days. In 

January 2020, about four years and four months into the case, 

the attorney defendants moved to dismiss the action for failure to 

serve them within three years of the filing of the original 

complaint. 
3

Later that same month, the parties participated in a 

mediation. At the end of the mediation, the parties drafted a 

document titled, “Settlement Agreement Following Mediation.” 

The settlement stated, “By execution of this Settlement 

Agreement the Parties confirm that it is their intention that this 

Agreement shall be valid, binding, and enforceable in connection 

with the resolution of their dispute.” Representatives of all of the 

parties except the attorney defendants signed the agreement, 

although the representative of the nominal defendants signed it 

three days after the end of the mediation.2 In the agreement, the 

signatories represented and warranted that they were duly 

authorized to execute it and to bind the parties they represented 

to its terms. 

The settlement terms were that the nominal defendants 

would purchase the plaintiffs’ membership interests in the 

nominal defendants as well as two non-party partnerships for a 

specified price. In exchange, plaintiffs promised that, within two 

business days, they would file with the trial court a notice of 

settlement and a dismissal of the attorney defendants without 

prejudice. They also promised to move for dismissal of the rest of 

the defendants with prejudice within 30 days of execution of the 

agreement. However, the agreement provided that “[p]ayment 

2 Although the attorney defendants were listed as parties to 

the agreement and plaintiffs agreed as part of the settlement to 

dismiss them without prejudice, there was no signature line for 

them. This was apparently because the agreement did not 

obligate the attorney defendants to perform any actions in 

exchange for their dismissal. 
4

and this settlement shall be conditioned upon approval of (a) the 

Superior Court because it is a derivative action, 

(b) Medicare/Medical/child support because there are claims of 

financial elder abuse, (c) USLI confirms that there are no liens, 

(d) the unanimous consent of the members of ARP-I and ARP-II 

respective[ly], (e) the unanimous consent of the limited partners 

and the general partner of WAA-I and WAA-II; and any 

reasonable execution of documents required by the insurance 

carrier USLI, and (f) and subject to the right of first refusal as 

may be required by non-parties CSC and Alexander Hans Wong 

Associates.”3 (Sic.) The agreement also stated that if any 

disagreement arose regarding the agreement, then the mediator 

would have binding authority to determine the issue and all 

parties would be bound by the mediator’s decision, without the 

ability to appeal to any judicial or arbitral authority. 

Pursuant to the agreement and with defendants’ 

cooperation, on January 27, 2020, plaintiffs filed a notice of 

conditional settlement with the trial court that stated a request 

for dismissal would be filed by March 6, 2020. The trial court 

took off calendar a discovery motion and the attorney defendants’ 

motion to dismiss, and it removed the action from the master jury 

calendar. Defendants hired a law firm to draft agreements to 

effectuate the nominal defendants’ purchase of plaintiffs’ 

membership interests. 

3 The parties do not explain the roles of CSC and insurer 

USLI in the litigation. WAA-I and WAA-II are non-party 

partnerships in which plaintiffs held interests. 
5

Nominal defendants’ members did not unanimously 

consent to purchase plaintiffs’ membership interests. By 

February 15, 2020, some of the members had filled out forms 

indicating that they did not consent, although there is no 

indication that nominal defendants told plaintiffs of this at the 

time. Counsel for nominal defendants apparently believed it was 

still possible to achieve unanimity, so he told plaintiffs’ counsel in 

early March 2020 that he would be able to sign a declaration 

stating that the members had approved the settlement. Not until 

April 9, 2020, did counsel for the nominal defendants inform 

plaintiffs that he had not achieved unanimous consent. Even 

then, however, he stated that the nominal defendants wanted to 

wait for 90 to 120 days to monitor the development of the COVID19 pandemic emergency, which had begun in March 2020. In 

response, plaintiffs threatened to file a motion in court to enforce 

the settlement under section 664.6. 

Meanwhile, in May 2020, the trial court issued an order to 

show cause why the case should not be dismissed in light of the 

prior notice of settlement and set a hearing for June 30, 2020. In 

June 2020, plaintiffs realized the settlement agreement gave the 

mediator authority to resolve disputes related to enforcement of 

the agreement. Plaintiffs therefore contacted the mediator to ask 

him to resolve the dispute. At the same time, plaintiffs filed a 

new notice of conditional settlement stating that the case would 

be dismissed by July 16, 2020. In response, the trial court 

rescheduled the hearing on the order to show cause for August 

25, 2020. 
6

On July 31, 2020, about four years and ten months into the 

case, the mediator ruled, consistent with both sides’ arguments, 

that he had binding authority under the settlement agreement to 

resolve the dispute. He further ruled that the agreement was not 

enforceable against the nominal defendants. The mediator 

reasoned that the signature of nominal defendants’ 

representative on the agreement did not mean that the condition 

precedent had been met. The mediator also found that none of 

the communications between the parties’ counsel was sufficient 

to bind the parties to performance of the settlement agreement. 

Over the course of the next few months, plaintiffs asked 

counsel for defendants and nominal defendants for trial dates, 

with little response. On August 5, 2020, on its own motion, the 

trial court continued the hearing on the order to show cause until 

October 27, 2020. 

On August 27, 2020, the attorney defendants re-filed their 

motion to dismiss, in which they notified the court that the 

settlement had stalled. The trial court granted this motion on 

October 8, 2020. Over the course of the following eight months,

the trial court repeatedly set and continued hearings on the order 

to show cause regarding dismissal of the case, with the final 

hearing scheduled for August 2021. Plaintiffs twice filed notices 

of appearance asking to be heard about the need for trial, to no 

effect. Finally, in late June 2021, about five years and nine 

months after they filed the complaint, plaintiffs filed a motion to 

vacate the conditional settlement and reset a case management 

conference. In late July 2021, the trial court granted the motion 
7

and set a case management conference for October 6, 2021, which 

would have been a little over six years after the start of the case. 

In September 2021, defendants filed a motion for 

mandatory dismissal of the action for failure to bring it to trial 

within five years under sections 583.310 and 583.360. 

Defendants argued that after taking into account the periods 

during which the action was stayed and emergency orders that 

had extended the five-year period due to the pandemic, the fiveyear period expired on August 2, 2021, about five years and ten 

months after plaintiffs filed the complaint. Plaintiffs countered 

that the five-year period had to be extended by an additional 196 

days, which was the length of the period between January 17,

2020, when most parties signed the settlement agreement, and

July 31, 2020, when the mediator issued his ruling that the 

settlement could not be enforced. Plaintiffs also suggested that 

at a minimum the five-year deadline should be extended by the 

period from January 17 to April 9, 2020, which was when 

nominal defendants’ counsel first notified plaintiffs that the 

condition to the settlement was not met. 

The trial court granted defendants’ motion, ruling that the 

deadline to bring the case to trial expired on August 2, 2021. The 

trial court later awarded defendants and nominal defendants 

attorney’s fees as the prevailing parties based on a fee provision 

in nominal defendants’ operating agreements. 
8

DISCUSSION

I. Statutory Scheme and Standard of Review

Section 583.310 states, “An action shall be brought to trial 

within five years after the action is commenced against the 

defendant.” “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 . . . .” (§ 583.360, subd. (a).) This dismissal 

requirement is mandatory and “not subject to extension, excuse, 

or exception except as expressly provided by statute.” (Id., 

subd. (b).) “Under the press of this statutory requirement, 

anyone pursuing an ‘action’ in the California courts has an 

affirmative obligation to do what is necessary to move the action 

forward to trial in timely fashion.” (Tanguilig v. Neiman Marcus 

Group, Inc. (2018) 22 Cal.App.5th 313, 322 (Tanguilig).)

Section 583.340 states, “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.” 

“Because the purpose of the dismissal statute ‘is to prevent 

avoidable delay, . . . [section 583.340, subdivision (c) 

(§ 583.340(c))] makes allowance for circumstances beyond the 

plaintiff’s control, in which moving the case to trial is 

impracticable for all practical purposes.’ ” (Tanguilig, supra, 
9

22 Cal.App.5th at p. 323.) Section 583.130 instructs that “the 

policy favoring trial or other disposition of an action on the merits 

[is] generally to be preferred over the policy that requires 

dismissal for failure to proceed with reasonable diligence in the 

prosecution of an action in construing the provisions of this 

chapter.” “Accordingly, the tolling provisions of Code of Civil 

Procedure section 583.340 must be liberally construed consistent 

with the policy favoring trial on the merits.” (Dowling v. Farmers 

Ins. Exchange (2012) 208 Cal.App.4th 685, 693 (Dowling).)

The Law Revision Commission drafted section 583.340 to 

revise a previous set of statutes that established a deadline to 

bring a case to trial. (Gaines v. Fidelity National Title Ins. Co.

(2016) 62 Cal.4th 1081, 1090, 1100–1101 (Gaines).) The 

Legislature enacted the Law Revision Commission’s draft 

without change, so we give the Commission’s comments 

significant weight when interpreting the statute. (Sierra Nevada 

Memorial–Miners Hospital, Inc. v. Superior Court (1990) 

217 Cal.App.3d 464, 469 (Sierra Nevada).)

The Law Revision Commission commented that under 

cases interpreting the previous statutes, “the time during which 

an action must be brought to trial may be tolled during periods 

when it would have been impossible, impracticable, or futile to 

bring the action to trial. However, if the impossibility, 

impracticability, or futility ended sufficiently early in the 

statutory period so that the plaintiff still had a ‘reasonable time’ 

to get the case to trial, the tolling rule doesn’t apply.” (Revised 

Recommendation Relating to Dismissal for Lack of Prosecution 
10

(June 1983) 17 Cal. Law Revision Com. Rep. (1984) pp. 918–919, 

fn. omitted.) “Under Section 583.340 the time within which an 

action must be brought to trial is tolled for the period of the 

excuse, regardless whether a reasonable time remained at the 

end of the period of the excuse to bring the action to trial. This 

overrules cases such as State of California v. Superior Court, 

98 Cal.App.3d 643 (1979), and Brown v. Superior Court, 

62 Cal.App.3d 197 (1976).” (Id. at p. 936.) The Law Revision 

Commission further explained that this approach was “consistent 

with the treatment given other statutory excuses,” such as the 

exception that excluded from the five-year period time during 

which jurisdiction of the court is suspended, and “increase[d] 

certainty and minimize[d] the need for a judicial hearing to 

ascertain whether or not the statutory period has run.” (Id. at 

p. 919, fn. omitted.) “Thus, a condition of impossibility, 

impracticability, or futility need not take the plaintiff beyond the 

five-year deadline to be excluded; it will be excluded even if the 

plaintiff has a reasonable time remaining after the period to 

bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.)

When applying the tolling exceptions in section 583.340(c), 

a trial court “must consider ‘ “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.” ’ ” (Gaines, supra, 62 Cal.4th at 

p. 1100.) “ ‘The question of impossibility, impracticability, or 
11

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 . . . 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.]’ [Citation.] Under that standard, 

‘[t]he trial court’s findings of fact are reviewed for substantial 

evidence, its conclusions of law are reviewed de novo, and its 

application of the law to the facts is reversible only if arbitrary 

and capricious.’ ” (Ibid.) 

Where, as here, the trial court’s ruling depends on its 

interpretation of a contract, we independently review that 

interpretation, but continue to apply the abuse of discretion 

standard to the extent the trial court resolved any factual 

questions involving extrinsic evidence. (Dowling, supra, 

208 Cal.App.4th at p. 694; Brown & Bryant, Inc. v. Hartford 

Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 252 (Brown 

& Bryant) [“whether a settlement agreement executed during the 

pendency of a lawsuit makes it impossible, impracticable, or 

futile to proceed to trial” is “a legal question and not a factual 

one,” so it is reviewed independently].)

II. Conditional Settlement

A line of cases holds that “the time during which a 

settlement agreement is in effect tolls the five-year period, for the 

reason that attempting to bring an action to trial when all issues 
12

have been resolved through settlement would be futile” within 

the meaning of section 583.340(c). (Canal Street, Ltd. v. Sorich

(2000) 77 Cal.App.4th 602, 608; see also Brown & Bryant, supra, 

24 Cal.App.4th at pp. 254–255; Schiro v. Curci (1990) 

220 Cal.App.3d 840, 844–845.) Most relevant here is Brown & 

Bryant, supra, 24 Cal.App.4th at pages 249–250, which involved 

a suit for recovery of environmental cleanup costs. There, the 

parties signed a settlement agreement that conditioned the 

parties’ obligations to perform on a government agency’s 

execution, by a deadline, of a release of the plaintiff from further 

cleanup liability. (Ibid.) The Court of Appeal held that that “a 

timely and enforceable settlement agreement which finally 

disposes of all issues in the underlying lawsuit renders section 

583.310 et seq. ‘legally irrelevant’ ” because it is futile to try to 

bring to trial issues that have been resolved by settlement, even 

if the settlement later becomes null and void for failure of a 

condition precedent to performance. (Id. at pp. 254–255.) The 

court rejected the defendants’ argument that the failure of the 

condition precedent to performance meant the agreement was 

never consummated. (Id. at p. 255.) It found a binding 

agreement existed between the signing of the agreement and the 

expiration of the period for the agency to provide the necessary 

release, since if the agency had provided the release, the parties 

would have been obligated to perform. (Id. at pp. 255–256 [“An 

executory contract is, nevertheless, a binding and enforceable 

agreement”].)
13

The court reasoned that “[o]nce the parties reach an 

enforceable agreement, ‘the court can assume the matter has 

indeed been finally disposed. Details of execution may remain, 

but it is reasonable to assume the matter will not go to trial.’ ” 

(Brown & Bryant, supra, 24 Cal.App.4th at p. 256.) It 

summarized, “The salient factor is not what ultimately did, or did 

not, happen. Rather, it is whether during the period covered by 

the agreement, [the plaintiff] would have been acting in bad faith 

and in violation of the spirit of the agreement by proceeding with 

the prosecution of the action.” (Ibid.) Brown & Bryant also 

rejected the argument that the plaintiff failed to exercise 

reasonable diligence by not obtaining a stipulation to toll the fiveyear period during the life of the settlement agreement or by 

failing to bring the action to trial in the two years that remained 

of the five-year period after the failure of the condition precedent. 

(Id. at pp. 256–257.) It held that the five-year period was tolled 

while the settlement agreement was in effect, even if a 

reasonable time remained afterwards to bring the case to trial. 

(Id. at p. 257.)

The trial court distinguished Brown & Bryant on the basis 

that the settlement agreement here was not binding and 

enforceable because the agreement made the unanimous consent 

of the nominal defendants’ members, as well as court approval, a 

condition precedent to enforceability. The trial court based this 

conclusion on nominal defendants’ counsel’s April 2020 notice 

that no settlement agreement was in effect. The trial court also 

noted that the mediator had binding authority to resolve 
14

disagreements about the settlement and had ruled that the 

agreement was not enforceable because the condition precedent 

of unanimous approval of the nominal defendants’ members was 

not satisfied. 

Defendants’ arguments on appeal expand upon the trial 

court’s reasoning regarding the agreement’s enforceability. Like 

the defendants in Brown & Bryant, supra, 24 Cal.App.4th at 

pages 255–256, who contended their agreement was never 

consummated, defendants argue that unanimous consent was a 

condition to their assent to the agreement, so that the failure of 

the condition means no agreement was formed. (Santa ClaraSan Benito etc. Elec. Contractors’ Assn. v. Local Union No. 332

(1974) 40 Cal.App.3d 431, 436 [when “two parties execute a 

contract with the understanding that the approval of a third 

party is necessary for the agreement to take effect, the contract is 

not complete until the third party has approved. Until that 

happens neither party is bound by the agreement”].) They then 

assert that nominal defendants’ operating agreements required 

unanimous consent of their members to enter the settlement 

agreement, and that the settlement agreement itself reflected 

this condition. 

Defendants compare this case to Earp v. W.G. Nobmann

(1981) 122 Cal.App.3d 270, 289 (Earp), disapproved of on other 

grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, 219, which 

held that a company officer’s signature on a contract, made under 

the express condition that another company officer also approve 

the contract, was a conditional acceptance and not immediately 
15

effective. Plaintiffs, on the other hand, rely on Brown & Bryant

and cases like Jacobs v. Freeman (1980) 104 Cal.App.3d 177, 

188–189 (Jacobs), which held that a company employee’s 

signature on a contract that stated it was conditioned on 

approval by the company’s board of directors embodied a 

condition precedent to performance of the contract, not a 

condition to the formation of the contract. Jacobs interpreted the 

agreement as impliedly obligating the company’s employees to 

act in good faith to submit the sale to the board for approval and 

obligating the board to consider the sale. (Id. at p. 190.)

The principle of conditional performance as applied in 

Jacobs and Brown & Bryant controls here, not the rule of 

conditional assent applied in Earp. Nominal defendants’ 

representative signed the settlement agreement a few days after 

the mediation, apparently after conferring with their insurer. 

The signatories warranted in the agreement that they could bind 

the parties they represented. There is no evidence in the record 

to suggest that the representative signed under any express oral 

condition that would have contradicted this warranty or 

prevented formation of a contract. (Cf. Earp, supra, 

122 Cal.App.3d at p. 289 [signature was given with express 

condition].) To the contrary, the fact that nominal defendants’ 

representative signed a few days after the other parties 

demonstrates that nominal defendants believed their 

representative’s signature had some significance to the formation 

of a contract. Had nominal defendants believed their 

representative’s signature was ineffective to form a contract 
16

because of the unanimity condition, either there would have been 

no obstacle to signing the agreement immediately during the 

mediation or there would have been no reason to sign it at all.

Defendants argue that nominal defendants’ operating 

agreements required their members’ consent to enter into the 

settlement agreement, implying that their representative lacked 

the authority to bind the entities to the agreement. Defendants 

do not direct us to anywhere in the record where the operating 

agreements can be found. Instead, they point to the unanimous 

approval condition in the contract. But the unanimous consent 

provision is listed together with several other conditions, such as 

approval of the court or various social services agencies, which 

are construed most reasonably as conditions to performance. 

This undercuts defendants’ argument. If their members’ consent 

were a condition to the authority of nominal defendants’ 

representative to form the agreement, it is unlikely that condition 

would have been lumped in with a number of conditions 

precedent to performance. 

Moreover, even if nominal defendants’ organizing 

documents barred their representative from committing to buy 

plaintiffs’ membership interests without the unanimous consent 

of the entities’ members, defendants cite nothing to suggest he 

could not sign the agreement to obligate the entities to act in 

good faith and seek their members’ approval, like the agreement

in Jacobs. (Jacobs, supra, 104 Cal.App.3d at p. 190.) And as in

Brown & Bryant, supra, 24 Cal.App.4th at page 256, for a time 

the agreement bound both sides to perform if the unanimous 
17

approval condition were satisfied (such as the requirement that 

plaintiffs file a notice of settlement within two business days of 

execution of the agreement), which was enough to make it 

impossible or futile to bring the action to trial during that time—

even if it later became clear that nominal defendants’ main 

promise to purchase plaintiffs’ membership interests could not be 

enforced.

The agreement’s plain statement on its first page that the 

parties intended that the agreement to “be valid, binding, and 

enforceable in connection with the resolution of their dispute” 

buttresses our interpretation. Defendants attempt to dismiss 

this statement as boilerplate that conflicts with and must fall to 

the more specific conditions later in the agreement, but we are 

unpersuaded. Both statements can be given effect by construing 

the latter conditions as conditions precedent to performance, 

rather than to formation of a contract.

To the extent there is an ambiguity in the settlement 

agreement or its surrounding circumstances, defendants’ 

subsequent conduct before the five-year dismissal issue arose, 

which affords the “ ‘most reliable’ ” means of determining their 

intent, confirms that the settlement agreement constituted a 

binding contract. (Jacobs v. Locatelli (2017) 8 Cal.App.5th 317, 

326.) Defendants and plaintiffs cooperated in the filing of the 

notice of conditional settlement, which was one of the actions the 

settlement agreement obligated plaintiffs to perform. 

Defendants’ participation in this process indicates that they 

believed they were immediately entitled to the benefit of the 
18

agreement and contradicts their argument here that the 

formation of the agreement was conditioned on nominal 

defendants’ later assent.

More significantly, defendants accepted the mediator’s 

authority to rule on the enforceability of the settlement 

agreement by arguing to the mediator, as did plaintiffs, that he 

had binding authority to resolve whether the agreement required 

nominal defendants to buy plaintiffs’ membership interests. But 

that authority presupposed the parties’ formation of an 

agreement, since the mediator’s authority to resolve the dispute 

over the enforceability of the agreement arose from the 

agreement itself. Defendants’ submission of the dispute to the 

mediator demonstrates that they believed the settlement 

agreement was a valid agreement to at least some extent, like the 

agreement in Jacobs. (Jacobs, supra, 104 Cal.App.3d at pp. 188–

190.) For the same reason, the trial court’s ruling that the 

mediator’s ruling was binding cannot be reconciled with its ruling 

that the agreement was not enforceable. 

Because defendants argued to the mediator that he had 

authority under the settlement agreement to resolve the parties’ 

dispute and then prevailed before the mediator, principles of 

judicial estoppel would prevent defendants from now arguing to 

the contrary that no agreement was formed. (Cf. 

DotConnectAfrica Trust v. Internet Corp. for Assigned Names & 

Numbers (2021) 68 Cal.App.5th 1141, 1158–1159 [judicial 

estoppel applies to arbitration proceedings]; Rapture Shipping, 

Ltd. v. Allround Fuel Trading B.V. (S.D.N.Y. 2004) 
19

350 F.Supp.2d 369, 374 [judicial estoppel prevented party who 

convinced one court that a contract was formed from later 

arguing to the contrary in a different court].) 

Even if defendants could change their position, the 

mediator’s ruling that he had such authority undermines such an 

argument. The mediator expressly ruled that he had authority to 

issue a ruling on the merits as to defendants but did not have 

such authority over two partnerships who did not sign the 

agreement. This shows that the arbitrator believed the parties 

had formed at least a limited agreement, as in Jacobs, despite the 

fact that the condition precedent to enforcing nominal 

defendants’ purchase of plaintiffs’ membership interests later 

failed. Although the mediator ruled that plaintiffs could not 

enforce the agreement to require nominal defendants to purchase 

their membership interests, the mediator’s mere issuance of such 

a ruling, combined with the parties’ assent to it, demonstrates 

that the parties were bound by the settlement agreement to that 

extent. 

Moreover, in their briefing in this court, defendants 

maintain that the mediator had this authority and cite the 

mediator’s ruling as authority for their position that the 

agreement was not enforceable. Defendants’ continued reliance 

on the mediator’s ruling further undercuts their position that the 

parties did not form an agreement.

In any event, even if the settlement agreement were not 

binding because nominal defendants’ acceptance was conditional, 

we would still exclude the period during which it was in effect 
20

under the rationale expressed in Brown & Bryant. As that case 

noted, the “salient factor” for applying the tolling exceptions in 

section 583.340(c) “is whether during the period covered by the 

agreement, [a plaintiff] would have been acting in bad faith and 

in violation of the spirit of the agreement by proceeding with the 

prosecution of the action.” (Brown & Bryant, supra, 

24 Cal.App.4th at p. 256.) Here, after the parties’ settlement 

negotiations bore fruit in a signed agreement to put an end to the 

case, plaintiffs would have been acting in bad faith and contrary 

to the spirit of the signed agreement by actively litigating the 

case until the unanimous approval condition was either satisfied 

or had failed.4 Contrary to defendants’ arguments here, it is 

unlikely the trial court would have granted a request by plaintiffs 

to set the action for trial, after all parties had signed the 

agreement and while nominal defendants were still seeking their 

members’ unanimous consent. This conclusion is supported by

the trial court’s act of taking several motions off calendar and 

removing the case from the master jury calendar in response to 

the notice of conditional settlement that plaintiffs filed pursuant 

to the settlement agreement. The trial court evidently viewed a 

4 Gaines, supra, 62 Cal.4th at pages 1102–1104, held that a 

stay of a case to conduct mediation did not make it impossible or 

impracticable to bring the case to trial because mediation is an 

ordinary part of litigation, the plaintiff agreed to it, the plaintiff 

could still conduct her own trial preparation, and the plaintiff 

could have moved to lift the stay. There was no argument in 

Gaines that a signed settlement agreement after the mediation 

made it impossible or impracticable to bring the case to trial.
21

conditional settlement as a sufficient basis for suspending the 

litigation.

Likewise, it was impracticable for plaintiffs to complete any 

of the few litigation steps remaining, which were expert 

depositions and the setting of the matter for trial, while it was 

still possible that the settlement would be effectuated. Indeed,

defendants in all likelihood would have objected to any such 

attempts, given that their conduct (e.g., cooperating in the filing 

of the notice of settlement and hiring a law firm to draft the 

purchase agreements) demonstrated their belief that the 

agreement was binding. Moreover, settlement negotiations are 

delicate, and any step that antagonized defendants and nominal 

defendants or forced them to incur trial preparation costs in the 

form of attorney time and expert fees could well have jeopardized 

completion of the settlement, even if nominal defendants’ 

members were otherwise inclined to purchase plaintiffs’ 

membership interests. This is especially likely here, where the 

settlement agreement required plaintiffs to quickly file a notice of 

settlement with the trial court, thus indicating that defendants 

did not want to continue to litigate the case while they sought the 

unanimous consent of nominal defendants’ members to the 

purchase of plaintiffs’ membership interests. 

To be sure, it would have been preferable for plaintiffs to 

include a provision in the settlement agreement tolling the fiveyear deadline, to make clear that the attempt to achieve 

unanimous consent would not count toward the five-year period

for bringing a case to trial. But a ruling that plaintiffs should 
22

have proceeded with litigation merely because the execution of 

the settlement agreement lacked such a provision, regardless of 

its impact on the settlement process, would be contrary to the 

well-established public policy favoring settlements. (Schiro v. 

Curci, supra, 220 Cal.App.3d at p. 844 [policy of the law highly 

favors settlements].)

In sum, whether we view the settlement agreement as a 

binding settlement that made it per se futile to bring the action 

to trial under the rationale of Brown & Bryant or we consider the 

settlement process here to constitute some other type of 

impracticable circumstance, the period before the unanimous 

consent condition failed must be excluded under section 

583.340(c) from the calculation of the five-year period. Plaintiffs 

argue the relevant exclusion period ran from the execution of the 

settlement on January 17, 2020, until the mediator’s July 31, 

2020, ruling that the condition precedent had failed. This may 

overstate the case; nominal defendants did not sign the 

agreement until January 21, 2020, and their notice to plaintiffs 

on April 9, 2020, that the condition had failed could have 

signified the collapse of the settlement and the resumption of

litigation. However, even then nominal defendants’ counsel held 

out to plaintiffs the possibility that unanimous consent could still 

be achieved after a short delay, so arguably the settlement did 

not entirely fail until the mediator so ruled. Notwithstanding the 

ambiguity of the April 9, 2020, communication from nominal 

defendants’ counsel, if we err on the side of caution and toll the 

five-year deadline for only the 79 days between January 21 and
23

April 9, 2020, after extending the five-year period by 127 days for 

the periods during which litigation was stayed and an additional 

six months pursuant to the pandemic emergency orders, 

plaintiffs’ deadline to bring the action to trial did not expire until 

October 20, 2021. The trial court’s order dismissing the case on 

October 5, 2021, was therefore premature and erroneous, as the 

five-year period had not yet run.5

III. Causation and Diligence

A.

As alternative grounds for refusing to exclude the period 

between the execution of the settlement agreement and the 

mediator’s ruling, the trial court ruled that the period of the 

failed settlement was not tolled because plaintiffs failed to show 

that they could not have brought their claims to trial “as a result 

of” the failed settlement agreement, and because they did not 

exercise reasonable diligence in setting the case for trial after 

learning in April 2020 that there was a disagreement about the 

settlement. The trial court relied on this court’s statement in 

Tanguilig, supra, 22 Cal.App.5th at page 323 that for the tolling 

5 Nikki So-Kuen and Patrick Szeto were not named as 

defendants until plaintiffs filed the first amended complaint in 

June 2016, about eight months after plaintiffs filed the original 

complaint. The five-year period is calculated separately for each 

defendant. (See Brunzell Construction Co. of Nevada v. Wagner

(1970) 2 Cal.3d 545, 555 [applying predecessor statute]; Weil & 

Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The 

Rutter Group 2022) ¶11:193.3.) The order dismissing the action 

as to Nikki So-Kuen and Patrick Szeto would thus likely need to 

be reversed even if the five-year period were not tolled during the 

79-day settlement agreement period.
24

provision in section 583.340(c) to prevent a case from being 

dismissed, “a plaintiff must prove (1) a circumstance establishing 

impossibility, impracticability, or futility, (2) a causal connection 

between the circumstance and the failure to move the case to 

trial within the five-year period, and (3) that she was reasonably 

diligent in prosecuting her case at all stages in the proceedings.” 

In finding that plaintiffs were not entitled to tolling, the court 

pointed out that plaintiffs waited almost a year after the 

mediator’s ruling to move to vacate the notice of settlement and 

reset a case management conference. 

Tanguilig does not support the trial court’s causation or 

diligence analyses. To the extent it is relevant here, Tanguilig

involved whether certain class plaintiffs were entitled to tolling of 

a 351-day period during which some of the claims asserted by one 

of the representative plaintiffs were subject to mandatory 

arbitration under an arbitration order, thus making it impossible 

for the court to try all of the claims pleaded by the class during 

that period. (Tanguilig, supra, 22 Cal.App.5th at pp. 324–327.) 

Tanguilig upheld the trial court’s refusal to toll that 351-day 

period, since the remainder of the claims in the case could have 

been tried and little was done to make that happen. (Ibid.) In so 

holding, Tanguilig focused on the plaintiffs’ “ability to ‘mov[e] the 

case to trial’ during the relevant period” claimed to be tolled. 

(Gaines, supra, 62 Cal.4th at p. 1101, italics added; Tanguilig, 

supra, 22 Cal.App.5th at pp. 327–328.)

 Besides not being supported by Tanguilig, the trial court’s 

analysis of causation and diligence is also contrary to the purpose 
25

of those factors and the legislative intent behind section 

583.340(c). 

B.

The main authority for the causation requirement is Sierra 

Nevada, supra, 217 Cal.App.3d at pages 471–473. Sierra Nevada

required a “causal connection” between the circumstance alleged 

to justify tolling and the impossibility or impracticability of 

bringing the action to trial in order to distinguish between run-ofthe-mill illnesses of counsel during litigation, which do not cause 

it to be impossible, impracticable, or futile to bring an action to 

trial, and extended illnesses or illnesses on the eve of the 

expiration of the five-year period, which do. Sierra Nevada’s 

causation “principles were deemed applicable only with respect to 

whether the claimed disability due to illness constituted 

impracticability in the first instance. It did not hold that the 

period of impracticability had to be the cause for not bringing the 

case to trial on time.” (New West Fed. Savings & Loan Assn. v. 

Superior Court (1990) 223 Cal.App.3d 1145, 1155–1156 (New 

West).) Thus, the trial court’s examination of whether the 

settlement period made it impossible for plaintiffs to meet the 

five-year deadline as a whole did not adhere to the purpose of the 

causation inquiry.

The trial court’s approach to causation was also contrary to 

the intent behind section 583.340(c). As noted above, the Law 

Revision Commission that drafted the statute intended to 

abrogate decisions that had refused to toll a period of 

impossibility if a reasonable time remained to bring the action to 
26

trial after the conclusion of the period of impossibility. (Gaines, 

supra, 62 Cal.4th at pp. 1100–1101.) The Law Revision 

Commission cited two decisions to illustrate the approach to 

tolling it was rejecting. In the first case, State of California v. 

Superior Court, supra, 98 Cal.App.3d at pages 649–650, the court 

held under the predecessor statute to section 583.340 that a 

period in which trial of an action was impossible because the 

parties were in judicial arbitration did not prevent the running of 

the statute because the plaintiff had sufficient time after the end 

of arbitration in which to bring the matter to trial. In the second, 

the court in Brown v. Superior Court, supra, 62 Cal.App.3d at 

page 199 rejected the plaintiff’s argument that the five-year 

period had to be tolled while she was incarcerated and unable to 

take the action to trial, because the plaintiff failed to take any 

action to bring the case to trial after her release. Here, the trial 

court’s reasoning that plaintiffs were not entitled to tolling 

because the failed settlement did not cause the plaintiffs to miss 

the five-year deadline (in that sufficient time remained after July 

2020 to bring the action to trial) rests on the same discredited 

rationale that section 583.340 was intended to abrogate. 

 Defendants defend the trial court’s causation analysis by 

asserting that the trial court did not limit its causation inquiry to 

the period after the failure of the settlement, and then arguing 

that plaintiffs could have litigated the matter during the period 

between the signing of the agreement and the failure of the 

settlement. Defendants misread the trial court’s order, as the 

court’s causation analysis was not aimed at the failed settlement 
27

period. It focused exclusively on plaintiffs’ purported failures to 

bring the case to trial after April 2020, and especially plaintiffs’ 

failure between August 2020 and June 2021 to move to withdraw 

the notice of settlement. This was error, as the post-settlement 

period was not relevant to the question of whether the settlement 

caused it to be impossible, impracticable, or futile to bring the 

action to trial between January 2020 and April or July 2020. 

Moreover, as discussed ante, we disagree with defendants about 

the feasibility of litigating the matter during the failed 

settlement period. Plaintiffs were entitled to tolling for the 79-

day period between January 21 and April 9, 2020, because the 

settlement caused it to be impossible or impracticable to bring 

the matter to trial during that period, regardless of whether such 

impossibility was what caused the plaintiffs ultimately to come 

up against the trial deadline.

C.

The trial court likewise erred in depriving plaintiffs of the 

benefit of the tolling provisions in section 583.340 based on their 

purported failure to exercise reasonable diligence after the tolled 

period. As we have explained, ante, section 583.340(c) required 

tolling of the period between January and April 2020, so at the 

time defendants brought their motion to dismiss in September 

2021 and the trial court granted it in October 2021, the five-year 

deadline had not yet run. Plaintiffs’ failure to push the case to 

trial as diligently as the trial court might have liked after the 

tolled period did not divest them of the benefit of the 79 days of 

tolling to which they were entitled. 
28

The trial court’s ruling preventing plaintiffs from relying on 

section 583.340(c) because of their alleged failure to act diligently 

later in the five-year period was contrary to the intent behind 

section 583.340 that a period of impossibility “be excluded even if 

the plaintiff has a reasonable time remaining after the period to 

bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.) 

The refusal in State of California v. Superior Court, supra, 

98 Cal.App.3d at pages 649–650 to toll a period of impossibility 

because the plaintiff there “made no special effort” to bring the 

matter to trial after the period of impossibility ended can only be 

construed as denying relief because the plaintiff did not act 

diligently. The same is true of the holding in Brown v. Superior 

Court, supra, 62 Cal.App.3d at page 199 that the plaintiff did not 

make “ ‘all reasonable attempts’ ” to bring the case to trial after 

being released from incarceration. The Law Revision 

Commission’s stated intent to abrogate these holdings 

demonstrates that it intended to foreclose the type of diligence 

analysis the trial court employed. To the extent that there is an 

ambiguity on the issue, we heed the instruction in section 

583.130 to prefer the policy favoring trial or other disposition of 

an action on the merits and liberally construe the tolling 

provision in section 583.340(c). (Dowling, supra, 208 Cal.App.4th 

at p. 693.)

The trial court’s diligence analysis impliedly evaluated

plaintiffs’ efforts to bring the action to trial based on the deadline 

that would have applied in the absence of tolling. But diligence is 

relative; a plaintiff whose case is closely approaching the five-
29

year deadline will take more significant efforts to get the matter 

to trial than one who still has months or years left in which to try 

the action. (Wilshire Bundy Corp. v. Auerbach (1991) 

228 Cal.App.3d 1280, 1287 (Wilshire) [diligence required of 

plaintiff increases as five-year deadline approaches].) An 

evaluation of diligence based on the deadline that would apply in 

the absence of tolling therefore ensures that a plaintiff will only 

get the benefit of tolling a period under section 583.340(c) if the 

plaintiff litigates the case on the assumption that tolling will not 

be applied.

The trial court’s approach also keeps a plaintiff guessing 

about whether a period of impossibility will be tolled until a 

defendant moves to dismiss at the end of the nominal five-year 

period and a court evaluates the plaintiff’s diligence throughout 

the case. This is contrary to the Law Revision Commission’s 

intent that tolling under section 583.340(c) be applied to 

“increase[] certainty and minimize[] the need for a judicial 

hearing to ascertain whether or not the statutory period has run,” 

“consistent with the treatment of other statutory excuses” such as 

the exception that excludes from the five-year period any time

during which jurisdiction of the court is suspended. (17 Cal. Law 

Revision Com. Rep., supra, at p. 919.) A diligence requirement 

that requires an assessment of a plaintiff’s conduct over the 

course of years of litigation does not provide a clear deadline. 

The Law Revision Commission’s approach favors certainty and ex 

ante clarity over an approach that would require plaintiffs to 

litigate under a sword of Damocles, fearing that the case could be 
30

dismissed even if difficulties earlier in the case deprived them of 

a substantial portion of the five-year period.

Accordingly, like several courts before us, we hold that it 

was irrelevant whether plaintiffs could reasonably have taken 

the case to trial even after the period of the failed settlement. 

(Brown & Bryant, supra, 24 Cal.App.4th at p. 257; Chin v. Meier

(1991) 235 Cal.App.3d 1473, 1477–1478; Rose v. Scott (1991) 

233 Cal.App.3d 537, 541–542 (Chin); New West, supra,

223 Cal.App.3d at pp. 1155–1156; see also Howard v. Thrifty 

Drug & Discount Stores (1995) 10 Cal.4th 424, 435, 438–439 

(Howard) [without comment, tolling five-year period during 

period of impossibility, despite plaintiff’s later lack of diligence in 

requesting the matter be set for trial]; Gaines, supra, 62 Cal.4th 

at p. 1101 [focus is on “the plaintiff's ability to ‘mov[e] the case to 

trial’ during the relevant [i.e., putatively tolled] period”], italics 

added.)

D.

This is not to say that diligence is irrelevant to the question 

of tolling under section 583.340(c). As with causation, a 

plaintiff’s diligence can be relevant to the determination of 

whether a circumstance truly made it impossible, impracticable, 

or futile to bring the action to trial by using a reasonably diligent 

plaintiff as a benchmark. (New West, 223 Cal.App.3d at 

pp. 1155–1156.) Some circumstances will make it impossible or 

impracticable to bring an action to trial regardless of the 

plaintiff’s diligence, as with the period here in which the 

settlement agreement was binding. But in other situations, if a 
31

circumstance was one in which a plaintiff could have brought the 

action to trial if he or she had acted diligently, then the 

circumstance was not one in which trial of the case was in fact 

impossible, impracticable, or futile. This was the case in 

Tanguilig, where this court held that a plaintiff who chose to add 

a co-plaintiff subject to an arbitration agreement could have 

diligently proceeded to trial of her claims during a 351-day period 

of claimed impossibility while her co-plaintiff’s claims were sent 

to arbitration. (Tanguilig, supra, 22 Cal.App.5th at pp. 327–329.) 

As the California Supreme Court explained before Gaines, 

the section 583.340(c) inquiry “requires a fact-sensitive inquiry 

and depends ‘on the obstacles faced by the plaintiff in prosecuting 

the action and the plaintiff’s exercise of reasonable diligence in 

overcoming those obstacles.’ [Citation.] ‘ “[I]mpracticability and 

futility” involve a determination of “ ‘excessive and unreasonable 

difficulty or expense,’ ” in light of all the circumstances of the 

particular case.’ ” (Bruns v. E-Commerce Exchange, Inc. (2011) 

51 Cal.4th 717, 731 (Bruns).) We therefore see diligence as not 

being a separate element, but rather an indivisible part of the 

overall inquiry into whether a given circumstance made it so 

unreasonably difficult for a plaintiff to bring an action to trial 

that the time period involved should be excluded from the 

calculation of the five-year period. (See Tanguilig, supra, 

22 Cal.App.5th at p. 323.)

Gaines applied the diligence requirement in this fashion, 

considering whether a mediation stay made it impossible or 

impracticable to bring an action to trial by examining whether 
32

the plaintiff was reasonably diligent in seeking to lift the stay 

and set a trial date before the five-year deadline. (Gaines, supra, 

62 Cal.4th at pp. 1103–1104.) Likewise, Tanguilig, supra, 

22 Cal.App.5th at pages 324, 327–328 and Martinez v. Landry’s 

Restaurants, Inc. (2018) 26 Cal.App.5th 783, 795 considered 

plaintiffs’ actions only during the period in which they claimed it 

was impossible or impracticable to bring the action to trial. 

E.

Defendants cite the remarks in Tamburina v. Combined 

Ins. Co. of America (2007) 147 Cal.App.4th 323, 336 (Tamburina);

Bruns, supra, 51 Cal.4th at page 731; and Tanguilig, supra, 

22 Cal.App.5th at page 323, that a plaintiff’s duty of diligence 

applies “at all stages of the proceedings.” These statements are 

correct in that a court will not exclude a period of putative 

impossibility at any point in the five-year period unless a 

reasonably diligent plaintiff, considering the stage of the 

litigation at which the putative impossibility occurred, would 

have been unable to overcome the difficulty. This point becomes 

especially significant when paired with the principles that a 

plaintiff’s duty of diligence increases as the case proceeds to the 

end of the five-year period and that a plaintiff has the duty to call 

the court’s attention to the deadline. (Tamburina, supra, 

147 Cal.App.4th at p. 336; Howard, supra, 10 Cal.4th at p. 434.) 

It is harder for a plaintiff to demonstrate that a circumstance 

made trial impossible or impracticable at the end of the case, as 

evidenced by decisions in which courts found a trial court order 

near the five-year deadline setting a trial date beyond it did not 
33

require tolling because of plaintiffs’ lack of diligence in raising 

the problem. (E.g., Wilshire, supra, 228 Cal.App.3d at pp. 1287, 

1289 [court error in removing case from active list at end of fiveyear period did not make trial impracticable or impossible 

because a diligent plaintiff would have discovered and corrected 

the error].)

The “all stages” phrasing, however, should not be construed 

to mean that a plaintiff’s lack of diligence later in a case can 

cause the forfeiture of an earlier period of tolling to which the 

plaintiff was entitled due to the legitimate impossibility, 

impracticability, or futility of bringing the action to trial during 

that time. Tamburina did not address how an inquiry into 

diligence outside the putatively tolled period could be squared 

with its acceptance of the fact that the causation inquiry looks 

only within the tolled period or the Law Revision Commission’s 

instruction to exclude all periods of impossibility, regardless of 

whether reasonable time remains afterwards to bring an action 

to trial. (Tamburina, supra, 147 Cal.App.4th at 335–336.) We 

therefore disagree with Tamburina on this point. Bruns and

Tanguilig, meanwhile, merely quoted Tamburina’s remark 

without discussion, and neither case used the diligence factor as 

a basis for holding that plaintiffs were divested of their ability to 

toll a period of legitimate impossibility because of dilatory 

conduct later during the litigation, so they do not support 

defendants here. (Bruns, supra, 51 Cal.4th at 731; Tanguilig, 

supra, 22 Cal.App.5th at p. 323.)
34

Defendants’ citations to various other cases fare no better. 

Most of the cases they cite did not consider the Law Revision 

Commission’s intent to change the law regarding the application 

of the section 583.340(c) exceptions. (Jordan v. Superstar 

Sandcars (2010) 182 Cal.App.4th 1416, 1422; Perez v. Grajales

(2008) 169 Cal.App.4th 580, 593–594; Sanchez v. City of Los 

Angeles (2003) 109 Cal.App.4th 1262, 1272–1273; Baccus v. 

Superior Court (1989) 207 Cal.App.3d 1526, 1533–1535; Hill v. 

Bingham (1986) 181 Cal.App.3d 1, 10–12.) Accordingly, they are 

not authority for construing the meaning of that intent.6 (People 

v. Hillhouse (2003) 109 Cal.App.4th 1612, 1622 [“ ‘cases are not 

authority for propositions they did not consider’ ”].)

De Santiago v. D & G Plumbing, Inc. (2007) 

155 Cal.App.4th 365, 374 (De Santiago), refused to toll the fiveyear deadline for a period in which trial was continued due to 

court congestion because the plaintiff had not acted diligently 

later in the period by requesting a trial date before the five-year 

deadline. The court discussed Chin and Tamburina, concluded 

6 The same is true of Schwenke v. J & P Scott, Inc. (1988) 

205 Cal.App.3d 71, 79–80, and Minkin v. Levander (1986) 

186 Cal.App.3d 64, 66, fn. 1, which Justice Streeter’s concurrence 

cites. (Conc. opn. of Streeter, Acting P. J., at pp. 12, fn. 4, 13.) 

Griffis v. S. S. Kresge Co. (1984) 150 Cal.App.3d 491 and

Karubian v. Security Pacific Nat. Bank (1984) 152 Cal.App.3d 

134, which Justice Streeter’s concurrence also cites (conc. opn. of 

Streeter, Acting P. J., at pp. 12, fn. 4, 13), were decided in

January and February 1984, respectively, many months before 

the passage of the legislation enacting the Law Revision 

Commission’s recommended changes to the trial deadline 

statutes. (See Stats. 1984, ch. 1705 [legislation enacted on 

September 30, 1984].)
35

they conflicted, and sided with Tamburina. (De Santiago, at 

pp. 375–376.) It stated that whether diligence was considered 

part of the causation analysis or as an independent factor, it was 

a critical factor to be considered when applying section 

583.340(c). (Id. at p. 375.) De Santiago reasoned that it could not 

find that the continuance for court congestion resulted in 

impracticability because the plaintiff could still have brought the 

case to trial despite the continuance. (Id. at p. 376.) It also 

concluded that Chin’s approach of merely subtracting from the 

five-year term any periods in which courtroom unavailability 

prevented the matter from going to trial would “wreak havoc” on 

application of the five-year deadline and that it was “unlikely this 

was the intent of the Legislature in enacting section 583.340, 

subdivision (c).” (Id. at pp. 376–377.)7 

7 Justice Streeter’s concurring opinion believes that the 

conflict De Santiago identified between Chin and Tamburina is a 

phantom one and that we are the first court to hold that trial 

courts should not examine diligence outside the putatively tolled 

period. (Conc. opn. of Streeter, Acting P. J., at pp. 21–22, 30.) 

His concurring opinion also remarks that the Supreme Court has 

never limited the diligence inquiry to the putative tolling period. 

(Conc. opn. of Streeter, Acting, P. J., at p. 8.) But as noted ante, 

the Supreme Court has on several occasions applied or discussed 

the standard in the same way that we do. (Howard, supra, 

10 Cal.4th at pp. 435, 438–439; Gaines, supra, 62 Cal.4th at 

p. 1101.) As also noted, ante in section III.C, Court of Appeal 

decisions going back several decades have done the same. (E.g., 

Brown & Bryant, supra, 24 Cal.App.4th at p. 257; Rose v. Scott

(1991) 233 Cal.App.3d 537, 541–542; New West, supra, 

223 Cal.App.3d at p. 1156 [affirming tolling of deadline based on 

period of impossibility; the fact that plaintiffs only needed the 

benefit of tolling because they miscalculated the correct deadline 

was “irrelevant”].) 
36

De Santiago, supra, 155 Cal.App.4th at page 376, did not 

distinguish between the concepts of causation and diligence, so 

consistency would demand that a diligence inquiry be limited to 

the period of putative tolling, just like a causation inquiry. That 

aside, excluding from the five-year term any periods in which the 

parties cannot practicably bring an action to trial, whether 

because of illnesses so extended as to make litigation 

impracticable (see Sierra Nevada, supra, 217 Cal.App.3d at 

p. 473), settlements, or courtroom unavailability when both 

parties have called ready, would certainly extend the time for 

parties to try their cases, but it would not create havoc. (Chin, 

supra, 235 Cal.App.3d at p. 1478 [rejecting havoc-like argument

in case where courtrooms were unavailable when both parties 

had called ready for trial].) The calculation would be relatively 

straightforward, and the result would be consistent with the 

policy expressed in section 583.130 favoring trials on the merits. 

As for legislative intent, the Law Revision Commission’s 

comment is explicit that this was precisely the intent behind 

section 583.340(c).8

8 In contrast to the simplicity of examining a plaintiff’s 

diligence only as part of an inquiry into whether litigation was 

impossible or impracticable in a given period, Justice Streeter’s 

concurring opinion would have trial courts consider a plaintiff’s 

diligence throughout a case while still focusing on diligence 

during the period of putative tolling, and examine whether a 

claimed delay has a causal connection with the missed trial 

deadline while still excluding periods of true impossibility even if 

there is ample time after the period to get to trial. (Conc. opn. of 

Streeter, Acting P. J., at pp. 2, 10–11, 14–16, 30.) It is unclear 
37

F.

In sum, we conclude that the trial court erred in precluding 

plaintiffs from relying on section 583.340(c) tolling for the 

January 2020–April 2020 period during which the settlement 

agreement was in place. That conclusion, however, does not free 

plaintiffs of the obligation to diligently prosecute their cases. 

Besides the fact that diligence is properly part of the analysis of 

whether a circumstance truly made it impossible for a reasonable 

plaintiff to bring an action to trial (as discussed ante), a lack of 

diligence can lead to the dismissal of a case despite the 

application of section 583.340. Separate from the five-year 

mandatory dismissal deadline in section 583.310, sections 

583.410 and 583.420 grant trial courts discretion to dismiss an 

action for failure to bring it to trial within two years. (§§ 583.410, 

subd. (a); 583.420, subd. (a)(2)(B); Cal. Rules of Court, rule 

3.1340(a).) When exercising this discretion, trial courts are 

required to consider, among other things, a plaintiff’s diligence in 

pursuing discovery and other pretrial proceedings. (Cal. Rules of 

Court, rule 3.1342(e)(4).) Like the five-year deadline, the twoyear deadline can be tolled for impossibility, impracticability, or 

futility. (§ 583.420, subd. (b).) But since dismissal after the twoyear deadline is discretionary rather than mandatory, a 

how these considerations can be reconciled. Even if they can, at 

best such reconciliation would be, as Justice Streeter’s concurring 

opinion admits, “fiendishly nuanced for courts to apply.” (Id. at 

p. 28.) The difficulties inherent in this approach thus seem at 

odds with the Law Revision Commission’s stated desire to

minimize the need for judicial hearings and increase certainty in 

applying section 583.340(c). 
38

plaintiff’s diligence can have a strong influence on the trial 

court’s decision whether to dismiss a case after two years. 

(Howard, supra, 10 Cal.4th at pp. 439–441 & fn. 6.) 

Relatedly, a plaintiff’s diligence is significant when a 

plaintiff files a motion to specially set a trial date, which may be 

necessary to get an action to trial late in the five-year period. 

(Howard, supra, 10 Cal.4th at pp. 440–441.) A trial court faced 

with such a motion must consider the same factors as when 

considering a discretionary dismissal under section 583.410, 

including dilatory conduct. (Id. at pp. 440 & fn. 6, 441.)9 And as 

with discretionary dismissals, a trial court can deny a motion to 

specially set a case for trial if a plaintiff has made little effort to 

prosecute a case and has waited until shortly before the 

expiration of the five-year deadline to request a trial. (See id. at 

pp. 435, 442–444 & fn. 6.) This means that a plaintiff who 

receives the benefit of the tolling provision but waits to request a 

trial until shortly before the tolled deadline can still find a lack of 

diligence earlier in the case hinders his or her attempts to get a 

case to trial.

DISPOSITION

The trial court’s order dismissing the action is reversed. As 

a result, the trial court’s judgment awarding attorney’s fees to 

Kwok Hung Szeto, Nikki So-Kuen Szeto, and Patrick Szeto and 

9 Howard, supra, 10 Cal.4th at p. 441 & fn. 7, discussed 

then-applicable former rule 373 of the California Rules of Court. 

The Judicial Council renumbered rule 373 as rule 3.1342 as of 

January 1, 2007. (See Franklin Capital Corp. v. Wilson (2007) 

148 Cal.App.4th 187, 213.)
39

its order awarding attorney’s fees to ARP-I, LLC and ARP-II, 

LLC are also reversed. (Gillan v. City of San Marino (2007) 

147 Cal.App.4th 1033, 1053.)

BROWN, J.

WE CONCUR:

STREETER, Acting, P. J.

GOLDMAN, J.
1

STREETER, Acting P. J., Concurring.

I concur in the lead opinion’s thoughtful analysis of 

whether the parties reached a binding and enforceable settlement 

agreement, but join the discussion section of the opinion (pts. I. 

and II.) only on that point. Although I agree with some of my 

colleagues’ discussion of causation and diligence (pt. III.), I think 

it would be an abuse of discretion to dismiss this case on this 

record under any causation and diligence analysis.

It seems beyond genuine dispute that these plaintiffs have 

been reasonably diligent in moving the case forward, evaluating 

that issue based on what they have done over the history of the 

case as a whole. It also seems beyond genuine dispute that there 

is a causal connection between the delays that beset them at the 

end of the mandatory time-to-trial period and their failure to 

secure a trial date within that period.

But while I agree with the disposition—reversal of the 

order of dismissal—I do so with some reservations, especially 

about my colleagues’ criticism of Tamburina v. Combined Ins. Co. 

of America (2007) 147 Cal.App.4th 323. Those reservations are 

significant enough that I can agree with part III. of the lead 

opinion only in result. Below, I explain my reasons for parting 

ways on the narrow legal issue addressed there.

I.

A.

“Because defendants argued to the mediator that he had 

authority under the settlement agreement to resolve the parties’ 

dispute and then prevailed before the mediator,” the lead opinion
2

holds, “principles of judicial estoppel would prevent defendants 

from now arguing to the contrary . . . .” (Lead opn., ante, at 

p. 18.) I agree. A plaintiff’s diligence generally, not just during a 

claimed tolling period, always has a role to play in the analysis of 

the issue of estoppel (Tresway Aero, Inc. v. Superior Court (1971) 

5 Cal.3d 431) under the basic precept of equity that “ ‘ “he who 

seeks equity must do equity.” ’ ” (Dickson, Carlson & Campillo v.

Pole (2000) 83 Cal.App.4th 436, 446; 2 Pomeroy, Equity 

Jurisprudence (5th ed. 1941) § 385, pp. 51–53.) Implicitly, that 

conclusion carries with it a determination that the plaintiffs were 

sufficiently diligent for the entirety of the case’s history so that 

we may erect the bar of estoppel.

I believe it would be an abuse of discretion for the trial 

court to reach any different conclusion in rejecting the plaintiffs’ 

claim to tolling under Code of Civil Procedure1 section 583.340, 

subdivision (c). But while I agree that the focus of the tolling 

inquiry under that statute should have been on events that took 

place during the claimed tolling period, I do not agree that a trial 

court’s evaluation of diligence in assessing impracticability must 

be confined to that period of time. The distinction is subtle but 

important.

B.

“The statutes governing dismissal for delay in prosecution 

were revised in 1984. (Stats. 1984, ch. 1705, § 5, pp. 6176–6180.) 

The legislative history makes clear that the revision was 

1 All subsequent undesignated statutory citations are to the 

Code of Civil Procedure.
3

prepared by the California Law Revision Commission” (the Law 

Revision Commission or the Commission). (Gaines v. Fidelity

National Title Ins. Co. (2016) 62 Cal.4th 1081, 1090 (Gaines).) 

The revised statutory scheme adopts recommendations made by 

the Law Revision Commission in a report to the Legislature

dated June 2, 1983. (Revised Recommendation Relating to 

Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law 

Revision Com. Rep. (1984) p. 905.)

In interpreting and applying the mandatory time-to-trial 

scheme (§§ 583.110–583.430),2 we must bear in mind that, with 

certain clarifications recommended by the Commission, this 

scheme codifies a regime of case law that developed over the 

course of many years under a predecessor statute dating from the 

early 20th century, former section 583. (Gaines, supra, 

2 Typically under this scheme, the mandatory time-to-trial 

period is five years after the action is commenced. (§ 583.310; 

e.g., Gaines, supra, 62 Cal.4th 1081.) But there are some 

circumstances in which the length of the period may differ. If, for 

example, there is an appeal from the judgment and the case is 

returned to the trial court for a new trial, the period will be three 

years from the filing of the remittitur on appeal, or if no appeal is 

taken and the trial court grants a postjudgment motion for a new 

trial, the period will be three years from the order granting a new 

trial. (§ 583.320, subd. (a); e.g., Nunn v. JPMorgan Chase Bank,

N.A. (2021) 64 Cal.App.5th 346 [three years from remittitur].) Or 

if the parties agree to an extension, the period will be whatever 

the parties agree upon. (§ 583.330; e.g., Nunn, supra, 

64 Cal.App.5th 346.) Thus, I refer variously to the “mandatory 

time-to-trial period,” the “mandatory time-to-trial scheme,” the 

“mandatory time-to-trial statutes,” the “mandatory time-to-trial 

deadline,” or the “mandatory time-to-trial clock,” without 

specifying a length.
4

62 Cal.4th at p. 1090.) As a result, the statutory interpretation 

issue we deal with here is somewhat unusual. The statutory text 

is key, as always, but because the Legislature’s intent was to 

restate and codify case law developed under former section 583, 

our interpretation must be guided by an extensive body of 

precedent predating the revision. (Gaines, at p. 1090.)

The idea that a plaintiff has a continuing duty to “proceed 

with reasonable diligence in the prosecution of an action” is not 

only codified as state policy in the mandatory statutory time-totrial scheme (§ 583.130) but is deeply entrenched in the relevant 

case law under former section 583. It can be found in post-1984 

cases (e.g., Cannon v. City of Novato (1985) 167 Cal.App.3d 216, 

223) as well as pre-1984 cases going back decades before that 

(e.g., Beswick v. Palo Verde Hospital Assn. (1961) 188 Cal.App.2d 

254, 260). In applying the revised statute, the Legislature has

expressed a preference for the competing policy favoring decision 

on the merits when these two policies collide (§ 583.130; see

Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 

996–1003 (dis. opn. of Johnson, J.)), but that rule of construction 

has no application here since there is no need to resolve any 

conflict between the two on this record. (See pt. II.A., post.)

Of course, in some circumstances a plaintiff’s mandatory 

time-to-trial clock may be suspended—tolled, as we say—under 

section 583.340. To understand how tolling works, we must keep 

in mind that the structure of the statute guides our analysis 

along with its text and the pre-1984 case law. Under section 

583.340, subdivisions (a) (suspension of jurisdiction to proceed) 
5

and (b) (stay or injunction against proceeding), the availability of 

tolling is “unconditional” (Ocean Services Corp. v. Ventura Port

Dist. (1993) 15 Cal.App.4th 1762, 1774) and “ ‘diligence . . . has no 

place in the analysis’ ” (ibid.; see Brock v. Kaiser Foundation

Hospitals (1992) 10 Cal.App.4th 1790, 1798, fn. 6; Herring v.

Peterson (1981) 116 Cal.App.3d 608, 616). But section 583.340, 

subdivision (c) operates quite differently.

Section 583, subdivision (c), a catchall provision, codifies 

the holding in Christin v. Superior Court (1937) 9 Cal.2d 526 

(Christin). Christin held that “the time during which ‘for all 

practical purposes, going to trial would be impossible, whether 

this was because of total lack of jurisdiction in the strict sense, or 

because proceeding to trial would be both impracticable and 

futile’ [citation] must be excluded in computing the five-year 

period.” (J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 

671.) Thus, under section 583, subdivision (c), “A circumstance 

that does not qualify for automatic tolling under section 

583.340[, subdivision] (b) may nonetheless be excludable from the 

five-year period if the circumstance makes it ‘impossible, 

impracticable, or futile’ to bring the action to trial.” (Gaines, 

supra, 62 Cal.4th at p. 1100.)

While, upon a factual showing that the requisite triggering 

conditions have been met, sections 583.340, subdivisions (a) 

and (b) are triggered automatically without regard to diligence, 

trial courts are “vested with discretion” (Wyoming Pacific Oil Co.

v. Preston (1958) 50 Cal.2d 736, 741) when they determine 

whether conditions of impossibility, impracticability, or futility 
6

exist. (Bennett v. Bennett Cement Contractors, Inc. (1981) 

125 Cal.App.3d 673, 677.) After 1984, that has continued to be 

the case (Brown & Bryant, Inc. v. Hartford Accident & Indemnity

Co. (1994) 24 Cal.App.4th 247, 251–252), even though section 

583.340, subdivisions (a), (b), and (c) are all cast in mandatory 

language. (§ 583.340 [“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” (italics added)].)

Whether the plaintiff showed reasonable diligence, 

especially in the final stages of the mandatory time-to-trial period 

(Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532), has 

always been central to the exercise of the court’s discretion. 

(Jensen v. Western Pac. R. R. Co. (1961) 189 Cal.App.2d 593, 596; 

see Baccus, at pp. 1532–1533 [“reasonable diligence constitutes a 

guideline by which to assess the existing exceptions of 

impossibility, impracticability, or futility”].) Indeed, diligence is 

the “critical factor” the court must consider. (Moran v. Superior

Court (1983) 35 Cal.3d 229, 239 (Moran), superseded by statute 

on other grounds as stated in Howard v. Thrifty Drug & Discount

Stores (1995) 10 Cal.4th 424.)

C.

The diligence inquiry is a holistic test. What is impossible, 

impracticable, or futile must be determined 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.” (Moran, supra, 35 Cal.3d at p. 238; see Hartman v.
7

Santamarina (1982) 30 Cal.3d 762, 768; Brunzell Constr. Co. v.

Wagner (1970) 2 Cal.3d 545, 553; General Motors Corp. v.

Superior Court (1966) 65 Cal.2d 88, 96–97; Woley v. Turkus

(1958) 51 Cal.2d 402, 407; Pacific Greyhound Lines v. Superior

Court (1946) 28 Cal.2d 61, 67; see also 2 Cal. Civil Procedure 

Before Trial (Cont.Ed.Bar 1978) § 31.25 [cited by the Law 

Revision Commission, 17 Cal. Law Revision Com. Rep., supra, at 

p. 918].)

“A determination of due diligence requires an examination 

of the circumstances existing throughout” the mandatory time-totrial period. (Cannon v. City of Novato, supra, 167 Cal.App.3d at 

p. 223.) This all-encompassing standard permits a contextual 

evaluation of the plaintiff’s conduct relative to the conduct of 

other parties in the case. Hence, the formulation, “the acts and 

conduct of the parties”—plural. (Woley v. Turkus, supra, 

51 Cal.2d at p. 407, italics added.)3 And equally important, since 

3 The court in Westinghouse Electric Corp. v. Superior Court

(1983) 143 Cal.App.3d 95 explained this well: “We believe the 

appropriateness of our approach is illustrated by the following 

example. Under some circumstances it may clearly be 

impracticable to bring a case to trial because substantial 

discovery remains to be completed at or near the end of the fiveyear period. The necessity for further discovery may be due to 

dilatoriness on the part of the plaintiff or on the part of 

defendant. If plaintiff has completed all of his discovery and is or 

has been ready to proceed to trial and the record shows that 

defendant has failed to vigorously pursue discovery, the 

nonreadiness of the case is due to defendant. In that situation, 

impracticability would constitute an excuse for noncompliance if 

plaintiff’s conduct is otherwise reasonable. However, had 

plaintiff been the dilatory party, mere impracticability is not an
8

“the concepts of impracticability and futility resist comprehensive

definition” (General Motors Corp. v. Superior Court, supra,

65 Cal.2d at p. 95), the “nature of the case” feature of the 

standard gives courts the flexibility to account for the myriad 

procedural circumstances where an excuse for impracticability or 

futility may arise in litigation (see Bank of America v. Superior

Court (1988) 200 Cal.App.3d 1000, 1014–1015 [listing examples]).

In all of our Supreme Court’s many applications of the “all 

the circumstances of the individual case” standard, the court has 

never limited the diligence inquiry strictly to the putative tolling 

period. Quite to the contrary, it has made clear that the proper 

analysis is an overall inquiry into case-as-a-whole diligence. 

Moran is the best example. That case involved a brief tolling 

period due to a compelled judicial arbitration at the end of the 

mandatory five-year timetable, preceded by years in which the 

plaintiff had moved the case forward in a reasonable fashion. 

(Moran, supra, 35 Cal.3d at pp. 234–236.) When, following the 

arbitration that resulted in an award for the plaintiff, the 

defendant requested a trial de novo, and the trial court failed to 

place the case back on calendar for trial in time to meet the fiveyear deadline. (Ibid.)

excuse, since the impracticability arises from plaintiff’s own 

fault. We believe the above examples and analysis are 

particularly pertinent to the instant case. They support the trial 

court’s determination that, notwithstanding [the plaintiff’s] due 

diligence throughout the five-year period [in this case], it was 

impracticable to bring this case to trial within that period.” (Id. 

at pp. 105–106.)
9

The Moran court looked at the entirety of the case’s history 

and concluded: The plaintiff’s “overall conduct during the fiveyear statutory period reflects her reasonable diligence in 

prosecuting the case.” (Moran, supra, 35 Cal.3d at p. 240.) The 

court examined every step in the plaintiff’s prosecution of the 

case prior to being ordered into arbitration, pointing out her 

active participation in taking and providing discovery and her 

designation of expert witnesses. (Ibid.) Given this overall 

history, the court concluded, “the impossibility of [the plaintiff] 

bringing her case to trial at the very end of this period due to the 

court’s failure to reschedule it warrants invoking the implied 

exception to mandatory dismissal pursuant to [former] section 

583[, subdivision] (b).” (Ibid.)

The Supreme Court has reaffirmed the “all of the 

circumstances in the individual case” diligence standard as a 

guideline for evaluating the applicability of section 583.340, 

subdivision (c) on multiple occasions in recent years (Gaines, 

supra, 62 Cal.4th at p. 1100; Bruns v. E-Commerce Exchange,

Inc. (2011) 51 Cal.4th 717, 730), each time citing Tamburina

favorably. The Supreme Court has also made clear that the 

burden of proving impossibility, impracticability, or futility lies 

with the plaintiff, and that in evaluating whether this burden 

has been met the trial court makes a factual determination, 

reviewable on appeal for abuse of discretion. “Under that 

standard, ‘[t]he trial court’s findings of fact are reviewed for 

substantial evidence, its conclusions of law are reviewed de novo, 

and its application of the law to the facts is reversible only if 
10

arbitrary and capricious.’ ” (Gaines, supra, 62 Cal.4th at p. 1100; 

see Bruns, supra, 51 Cal.4th at pp. 726, 730.)

D.

Naturally, to be sure, the focal point of a trial court’s 

inquiry under section 583.340, subdivision (c) will be on the 

period of claimed delay. After all, “The statute refers to 

excluding ‘the time during which . . . [b]ringing the action to trial, 

for any other reason, was impossible, impracticable, or futile.’ 

(§ 583.340[, subdivision] (c).)” (Gaines, supra, 62 Cal.4th at 

p. 1100, italics added; id. at p. 1101 [“courts have focused on the 

extent to which the conditions interfered with the plaintiff’s 

ability to ‘mov[e] the case to trial’ during the relevant period”].) 

But “[i]t 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.’ ” ’ ” 

(Gaines, at p. 1101.)

Brief delays that may be considered “ ‘ “ordinary incidents 

of [civil litigation] . . . [are] not within the contemplation of” ’ ” 

section 583.340, subdivision (c), and the measuring rod for 

evaluating that issue is diligence. (Gaines, supra, 62 Cal.4th at 

p. 1101.) “This rule reflects the Legislature’s understanding that 

a reasonably diligent plaintiff should be able to bring the case to 

trial within the relatively lengthy period of five years 

notwithstanding such ordinary delays. [Citation.] To hold 

otherwise would allow plaintiffs to litigate piecemeal every 

period, no matter how short, in which it was literally

impracticable to try the case, thus rendering the statute ‘utterly 
11

indeterminate, subjective, and unadministerable.’ ” (Ibid.) 

Filtering out things that “are ordinary steps in the prosecution of 

the action” “requires a fact-specific inquiry in light of all of the 

circumstances in the case.” (Id. at p. 1102.)

The touchstone for analysis when evaluating a section 

583.340, subdivision (c) excuse is whether the claimed tolling 

delay was avoidable. “[C]ase law both predating and postdating 

the 1984 statutory revision has long held that ‘[f]or the tolling 

provision of section 583.340[, subdivision (c)] to apply, there must 

be “a period of impossibility, impracticability or futility, over

which plaintiff had no control.” ’ ” (Gaines, supra, 62 Cal.4th at 

p. 1102, italics in original; see Christin, supra, 9 Cal.2d at p. 532 

[“The purpose of [the five-year] statute is plain: to prevent 

avoidable delay for too long a period” (italics added)].)

In the evaluation of whether a period of delay was 

avoidable, events that occurred both before and after the claimed 

tolling period will often be relevant. It makes no sense to force 

trial courts to put blinders on in evaluating diligence by confining 

their inquiry to the claimed tolling period. Courts must be able 

to consider whether, at every step in the case, the plaintiff did 

everything it reasonably could to avoid a delay that might become 

an obstacle to meeting the mandatory time-to-trial deadline. A 

legion of cases cited by the defendants show that courts have long 

been doing exactly that. (Jordan v. Superstar Sandcars (2010) 

182 Cal.App.4th 1416, 1422; Perez v. Grajales (2008) 

169 Cal.App.4th 580, 593–594; Sanchez v. City of Los Angeles

(2003) 109 Cal.App.4th 1262, 1272–1273; Baccus v. Superior 
12

Court, supra, 207 Cal.App.3d at pp. 1533–1535; Hill v. Bingham

(1986) 181 Cal.App.3d 1, 10–12.)4

Some of the cases relied upon by my colleagues provide 

additional examples. If, for instance, a plaintiff makes a tactical 

decision early in the history of a case that leads inevitably to a 

later claim of impracticability (Tanguilig v. Neiman Marcus 

Group, Inc. (2018) 22 Cal.App.5th 313), or if a plaintiff makes a 

claim of impracticability for some period of time early in the 

history of the case but then later fails to avail itself of a ready 

means of accelerating the case thereafter (Wilshire Bundy Corp.

v. Auerbach (1991) 228 Cal.App.3d 1280), then what happened 

outside the claimed tolling period is a factor the court may 

properly consider in its discretionary determination of the 

totality of the circumstances.

4 To these cases, I would add Schwenke v. J & P Scott, Inc.

(1988) 205 Cal.App.3d 71, 79–80 (plaintiff who argued it was 

impossible to move his case forward while he was awaiting 

decision on defendant’s motion to transfer his case from 

municipal to superior court was not entitled to tolling because he 

could have sought transfer himself at an earlier point in time 

and, after the transfer motion was granted, he requested that the 

case be removed from the trial calendar for two and a half years), 

and Karubian v. Security Pacific Nat. Bank (1984) 

152 Cal.App.3d 134, 136, 138–140 (plaintiff argued it was 

impossible to seek a trial date within the five-year period 

because, for nearly eighteen months as the mandatory trial 

deadline approached, the court failed to notify his counsel the 

case was eligible for a trial readiness certificate; it was not an

abuse of discretion to reject that argument where the plaintiff 

could not show diligence prior to the final eighteen months in the 

mandatory time-to-trial period, and he failed to seek a special 

trial setting until 40 days before expiration of the deadline).
13

According to the lead opinion, the fact that so many cases 

say diligence must be examined in “all stages of the proceedings” 

(e.g., Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th at 

p. 731; Brock v. Kaiser Foundation Hospitals, supra, 

10 Cal.App.4th at pp. 1798–1799, fn. 6; Minkin v. Levander

(1986) 186 Cal.App.3d 64, 69; Griffis v. S. S. Kresge Co. (1984) 

150 Cal.App.3d 491, 496; King v. State of California (1970) 

11 Cal.App.3d 307, 310), does not mean that “a plaintiff’s lack of 

diligence later in a case can cause the forfeiture of an earlier 

period of tolling to which the plaintiff was entitled due to the 

legitimate impossibility, impracticability, or futility of bringing 

the action to trial during that time.” (Lead opn., ante, at pp. 32, 

33.) It may seem neatly logical to say that a plaintiff who is 

entitled to tolling under section 583.340, subdivision (c) should 

not be stripped of that right for a post-tolling failure of diligence, 

but this framing of the issue begs the question we are dealing 

with here.

A plaintiff’s diligence—evaluated in the context of the case 

as a whole—is a threshold consideration courts consider in 

making the discretionary determination whether the plaintiff 

may lay claim to a section 583.340, subdivision (c) excuse in the 

first place. (See Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1340 

[“Where a plaintiff possesses the means to bring a matter to trial 

before the expiration of the [mandatory dismissal] period by filing 

a motion to specially set the matter for trial, plaintiff’s failure to

bring such motion will preclude a later claim of impossibility or

impracticability” (italics added)]; Sanchez v. City of Los Angeles, 
14

supra, 109 Cal.App.4th at p. 1274 [quoting Tejada for the same 

point]; Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 165 

[same]; see also Hughes v. Kimble (1992) 5 Cal.App.4th 59, 69

[“application of the impossibility exception is conditioned upon

whether ‘the plaintiff exercised reasonable diligence in

prosecuting his or her case’ ” (italics omitted)].)

In Tejada, for example, the plaintiff tried to claim 

impracticability because, early in the history of the litigation, the 

defendant was out of the country and unavailable to participate 

in a judicial arbitration. (Tejada v. Blas, supra, 196 Cal.App.3d 

at pp. 1338–1339.) “[P]laintiff was prepared to go forward” with 

the arbitration during that time, but the resulting delay had 

nothing to do with the fact that after the arbitration was 

completed the plaintiff failed to “use reasonable efforts to bring 

the matter to trial during the following one-year period preceding 

the expiration of the five years.” (Id. at p. 1340.) The court was 

not focused on whether plaintiff forfeited or should be deprived of 

a right to tolling. Its analysis looked at whether, with greater 

diligence, the plaintiff could have avoided missing the mandatory 

time-to-trial deadline, despite the delay. This was fully 

consistent with Christin, which explained that the purpose of 

former section 583 was to “prevent avoidable delay for too long a 

period.” (Christin, supra, 9 Cal.2d at p. 532, italics in original.)

E.

My colleagues’ narrow framing of the diligence inquiry for 

section 583.340, subdivision (c) tolling purposes turns on the

rationale that, in abrogating State of California v. Superior Court
15

(1979) 98 Cal.App.3d 643, and Brown v. Superior Court (1976) 

62 Cal.App.3d 197, pursuant to the recommendation of the Law 

Revision Commission, the Legislature must have “intended to 

foreclose the type of diligence analysis the trial court employed” 

when it examined the plaintiffs’ diligence after August 2020. 

(Lead opn., ante, at p. 28.) That, in my view, overreads the

legislative history. Nothing in the Law Revision Commission’s 

brief discussion of State of California and Brown mentions

diligence.

What the Law Revision Commission condemned was a 

specific rule denying plaintiffs the benefit of tolling for 

impossibility, impracticability, or futility where the impediment 

to moving forward “ended sufficiently early in the statutory 

period so that the plaintiff still had a ‘reasonable time’ to get the 

case to trial.” (17 Cal. Law Revision Com. Rep., supra, at p. 919; 

see Gaines, supra, 62 Cal.4th at p. 1101 [referring to the 

overruling of State of California and Brown, and then stating,

“Thus, a condition of impossibility, impracticability, or futility 

need not take the plaintiff beyond the five-year deadline to be 

excluded; it will be excluded even if the plaintiff has a reasonable 

time remaining after the period to bring the case to trial”].)

The Law Revision Commission cited State of California and 

Brown as examples (17 Cal. Law Revision Com. Rep., supra, at 

p. 919, fn. 60), but these two cases were not alone in taking this 

now discarded approach. State of California and Brown were two 

examples in a line of precedent standing for the same proposition. 

Other examples include Weeks v. Roberts (1968) 68 Cal.2d 802, 
16

807–808, superseded by statute as stated in Salas v. Sears,

Roebuck & Co. (1986) 42 Cal.3d 342, 348–349; Manor Drug Stores

v. Blue Chip Stamps (1977) 71 Cal.App.3d 423, 424, Youngblood

v. Terra (1970) 10 Cal.App.3d 533, 537, Bolsinger v. Marr (1969) 

1 Cal.App.3d 267, 273, Sherberne & Associates v. Vector Mfg. Co.

(1968) 263 Cal.App.2d 68, 73, and O’Donnell v. City & County of

S. F. (1956) 147 Cal.App.2d 63, 66. Many of these cases applied a 

diligence analysis to the time remaining on the pretrial schedule, 

but they also stood for a more mechanical proposition—that the 

availability of some period of time after a delay, by itself, 

defeated tolling. This was the “rule” decried by the Commission.

Without any analysis of how the reasonable-timeremaining cases fit into the case law prior to 1984, the lead 

opinion speaks vaguely of “the intent behind section 583.340(c)” 

(lead opn., ante, at pp. 25, 28, 36), and brushes aside all of the 

cases cited by the defendants for not considering that intent, but 

makes no effort to discern what the Law Revision Commission 

found to be problematic about State of California and Brown. 

Instead, my colleagues read State of California and Brown as 

diligence cases and leap to the conclusion that the diligence 

analyses in those cases is what the Law Revision Commission 

must have been focused on. But our task is not to read these two 

cases and excise from the law what we, as judges today, think 

they held, or even what the judges who decided them decades ago 

said about their own reasoning (which is not discussed in the 

Law Revision Commission’s report).
17

It may be counterintuitive to the judicial mind to see how 

the Legislature could possibly have any understanding different

from our own, but in case-by-case adjudication we are used to 

reading appellate opinions, and naturally we have a precise 

understanding of precedent as it applies in that process, 

circumscribed by the facts and reasoning in individual cases. A 

Legislature does not operate that way. To understand how the 

Legislature changed the law in 1984, we must look at what law 

reform objectives the Law Revision Commission sought to 

accomplish, rather than go behind its report and work backwards 

from the facts and reasoning in the cases it recommended for 

abrogation.

Examining the Law Revision Commission’s report for what 

it was—a policy-level document making prescriptive 

recommendations to clear up confusion in the law—the 

Commission said three things of particular note. First, speaking 

in general terms, it described “a significant problem” with the 

five-year mandatory dismissal statute. “The problem arises 

when, within the last months before the statute is about to 

expire, an event occurs that suspends the running of the 

statute . . . . [W]hen the tolling or extension ends and the statute 

begins to run again, the plaintiff has only a short time to bring 

the action to trial. In many cases, this is an unrealistic or 

impossible deadline to meet.” (17 Cal. Law Revision Com. Rep.,
18

supra, at pp. 912–913.)5 Second, addressing the impossibility, 

impracticability, or futility tolling exception specifically, the 

Commission confirmed that avoidability of delay is a critical 

consideration. The impracticability excuse “must be liberally 

construed,” the Commission explained, bearing in mind that 

“bringing a case to trial frequently may be hindered by causes 

beyond the plaintiff’s control.” (17 Cal. Law Revision Com. Rep., 

supra, at p. 918.) Third, the Commission criticized a “rule” in 

then extant case law—this is where State of California and 

Brown are cited as examples—characterizing the “rule” as one 

that renders tolling inapplicable if the tolling event happens too 

early in a case’s history. “The proposed law changes this rule so 

that the statute tolls regardless when during the statutory period 

the excuse occurs,” the Commission explained. (Id. at p. 919.)

Against that policy backdrop, we must consider what the 

Law Revision Commission, and hence the Legislature, viewed as 

problematic about the “rule” attributed to State of California and 

Brown. Based on what the Commission said in its report, it 

seems clear it believed these cases arbitrarily limited the 

availability of tolling for impracticability to a late-in-the-case 

scenario. The judgments about what constituted a “reasonable 

time” to bring a case to trial were ad hoc, and the one5 The Law Revision Commission’s recommended enactment 

of section 583.350—the grace period statute—appears to have 

been designed to address the problem of creating an unfair time 

“squeeze” for plaintiffs near the end of the mandatory time-totrial schedule. (17 Cal. Law Revision Com. Rep., supra, at 

p. 936.)
19

dimensional analysis these cases employed stood in tension with 

the more contextual—and more well-established—“all of the 

circumstances of the individual case” tolling analysis in many 

other Court of Appeal cases (e.g., Westinghouse Electric Corp. v.

Superior Court, supra, 143 Cal.App.3d at pp. 106–107; Bank of

America v. Superior Court, supra, 200 Cal.App.3d at pp. 1014–

1016), not to mention in the extensive body of Supreme Court 

precedent enunciating that broader standard. (See ante, at 

pp. 6–7.) The difficulty presented by the reasonable time 

remaining rule was in figuring out how late in a case’s history a 

delay-causing event would have to occur in order to qualify for 

tolling, or how long it would have to last before tolling would kick 

in.

Ironically, given the focus of our disagreement today over 

whether diligence analysis should be temporally limited in some 

fashion, this was simply a matter of timing, and the Commission 

came out firmly against temporal limitation. According to the 

Commission, the better solution was simple: Under the fairer, 

more liberal rule, an event qualifying as impossible, 

impracticable, or futile could arise at any time in a case’s history. 

That is what necessitated the overruling of State of California

and Brown, not dissatisfaction with the diligence analysis they 

applied, which the Commission never mentioned.6

6 Justice Goldman seems bothered that Tejada and some of 

the other post-1984 cases following it cite and rely on State of 

California and Brown. I am not. If there was a need to evaluate 

State of California and Brown in the normal way we do when 
20

Whether, today, we read State of California and Brown the 

same way the Commission did is beside the point. Because in one 

strand of the law prior to 1984, some cases had deviated from the 

whole-of-the-case approach reaffirmed in Moran only months 

before the Legislature acted, the “certainty” the Commission 

spoke of in recommending disapproval of State of California and

Brown was simply its declared objective to achieve clarifying 

uniformity in the case law. That is what law reform bodies do

(think, for example, of the American Law Institute). In my view, 

this is a better reading of the pertinent legislative history than 

the one the lead opinion adopts, since it is consistent with the 

Law Revision Commission’s overall mission—law clarification, 

not wholesale rearrangement of the architecture of pre-1984 law.

II.

A.

Although the Legislature made clear in 1984 that the mere 

existence of a “reasonable time” to take a case to trial after the 

period claimed for tolling cannot be dispositive, what the plaintiff 

does with that time—the traditional concern of diligence 

assessment—remains relevant as a consideration in evaluating 

“all of the circumstances of the individual case” throughout its 

considering the continued viability of case law—again, I do not 

think reading these cases for their stated holdings and their 

reasoning is the task here—I suppose I would say the references 

to State of California and Brown in later cases should have 

included citation history noting “superseded by statute on other 

grounds.” But careful cite-checkers know that we all make 

judgment calls about when to employ such notation for precision.
21

entire procedural history. That is why, after the enactment of 

section 583.340, subdivision (c), in line with statutory intent, 

properly read, courts have continued to employ diligence analysis 

as a prerequisite to section 583.340, subdivision (c) tolling just as 

broadly and flexibly as they did before the statute was enacted, 

looking to diligence in the case as a whole. And in undertaking 

this fact-specific analysis, trial courts have the primary role, 

since they are “ ‘ “in the most advantageous position to evaluate 

[the] diverse factual matters” ’ ” that bear on impossibility, 

impracticability, or futility “ ‘ “in the first instance.” ’ ” (Gaines, 

supra, 62 Cal.4th at p. 1100.)

Holding that Tamburina was incorrect to inquire into 

diligence “outside the putatively tolled period” (lead opn., ante, at 

p. 33), my colleagues take a more constricted view of trial court 

discretion. So far as I am aware, we are the first court to so hold. 

“To the extent that there is an ambiguity on the issue,” my 

colleagues explain, “we heed the instruction in section 583.130 to 

prefer the policy favoring trial or other disposition of an action on 

the merits . . . .” (Lead opn., ante, at p. 28.) If anything, it is my 

colleagues’ effort to cabin the discretion of trial courts that runs 

contrary to the policy favoring decision on the merits and 

“liberality” in the application of the section 583.340, 

subdivision (c) tolling rule. Here, we should be mindful of the 

importance of ruling narrowly to avoid potentially unintended 

consequences. By artificially confining the diligence inquiry to 

the putative tolling period, our holding on this point undermines 

the authority of trial courts to excuse tolling claimants who can 
22

demonstrate diligence for most of the history of a case, but who 

are charged with some type of delinquency on the eve of the 

mandatory time-to-trial deadline, as in Moran, and as in this case 

as well.

I set that concern aside for now, however, since it has to do 

with the implications of our holding in other cases down the line. 

To resolve the diligence issue that divides us on the facts 

presented here, it does not advance the ball either way to rely on 

the policy favoring decision on the merits. We are not faced with 

a choice between two different, outcome-determinative 

approaches to analyzing impossibility, impracticability, or futility

in this case. Whether the scope of our diligence inquiry is 

confined to the tolling period, as my colleagues believe it is, or 

extends to the case as a whole, as I believe it does, the diligence 

component of the tolling analysis plays a neutral role on this 

record.

The best indication of that is our shared conclusion—the 

trial court’s diligence analysis was erroneous. What divides us is 

why the trial court’s diligence analysis was faulty. I think the 

court erred because, as in State of California and Brown, it 

evaluated diligence only in the post-tolling period rather than in 

all phases of the proceedings. Ironically, the lead opinion makes 

the same error the trial court did, albeit with a different spin: 

Focusing on a different slice of time, my colleagues hold that the 

trial court erred by failing to limit its diligence assessment to the 

claimed tolling period. On this score, the lead opinion is just as 

mistaken as the trial court was.
23

B.

The Law Revision Commission stated that, prior to 1984, 

“The [mandatory time-to-trial] statutes [did] not accurately state 

the exceptions, excuses, and existence of court discretion.” 

(17 Cal. Law Revision Com. Rep., supra, at p. 910.) What 

occurred in the 1984 revision process is that, by codifying 

Christin, the Legislature created a discretion-based standard in 

section 583.340, subdivision (c), effectively adopting a rule of 

“equitable tolling” by statute.7 The language of section 583.340

states that “[i]n computing the time within which an action must 

be brought to trial, there shall be excluded the time during which 

any of the following conditions existed ” (§ 583.340, italics added) 

which is followed by subdivisions (a), (b) and (c). It is the court 

that is doing the calculating under this statute, not the litigants. 

And the statutory language specifying how that is done cannot be 

properly understood apart from the case law it codifies. Viewed 

in this way, the discretion residing in section 583.340, 

subdivision (c) is in the court’s ability to evaluate whether 

“conditions exist[]” that warrant tolling. (§ 583.340.) It is too 

simplistic to point to the word “shall” and stop there.

7 Our Supreme Court’s seminal equitable tolling opinion in

Bollinger v. National Fire Ins. Co (1944) 25 Cal.2d 399

(Traynor, J.) relies on Christin. (Id. at p. 408 [announcing a 

judicially created procedural rule that operates in equivalent 

fashion to statutes designed to save “an action . . . brought in 

good time and diligently pursued, but defeated by some 

technicality unrelated to the merits”]; see id. at p. 410 [citing 

Christin].)
24

Echoing and amplifying a point made in the lead opinion, 

Justice Goldman’s concurrence suggests that my reading of 

583.340, subdivision (c) puts a plaintiff in the position of not 

knowing whether a period she believes made it impracticable to 

move a case toward trial will be counted in the mandatory timeto-trial period until a court declares whether the period was 

tolled. It appears to me that, just as the lead opinion does, he 

mistakes the certainty the Law Revision Commission had in 

mind when it clarified the tolling rule courts should apply under 

section 583.340, subdivision (c) for the kind of certainty parties

enjoy under sections 583.340, subdivisions (a) and (b), where the 

triggering events for tolling (whether the court had jurisdiction, 

whether the court placed a stay on the whole case) are objectively 

determinable, and there is no discretion involved.

Bear in mind, as I have explained, the court is doing the 

calculating, not the litigants. It makes no sense that there 

should be “certainty and ex ante clarity” for litigants (lead opn., 

ante, at p. 29) in the application of a tolling rule of this kind. 

Litigants can never expect surefire predictability when they are 

subject to a discretionary decisionmaking regime. Just as with 

judge-made equitable tolling in the context of statutes of 

limitation, the mandatory deadline is the mandatory deadline, 

and the tolling exception is sometimes available to guard against 

harsh results. But the declared policy of the law favors plaintiffs 

who make consistent, demonstrable efforts to move their cases 

forward in all stages of a case’s history. So when and if it is 

necessary for a plaintiff to make a tolling argument in the face of 
25

a motion to dismiss on five-year grounds, diligent plaintiffs are 

rewarded in the tolling calculus for their efforts, and by the same 

token they may suffer if they have let their cases languish. There 

are no advance guarantees in this scheme for a litigant who must 

resort to tolling for impracticability.

Justice Goldman posits what he apparently sees as a 

dilemma for a plaintiff who, according to his hypothetical, is left 

in a quandary about whether tolling might apply to a period in 

which she took time out from active litigation to pursue a 

settlement midway through the mandatory time-to-trial period 

and when the settlement effort fails, cannot predict with any 

certainty when the mandatory trial deadline will run. About this 

hypothetical, I would point out a couple of things, beginning with 

the fact that pursuing settlement is an expected task in the 

everyday handling of litigation, no different than ordinary motion 

practice or discovery, neither of which garners any special favor 

in the analysis of entitlement to tolling under section 583.340, 

subdivision (c). Hiatus periods to engage in settlement 

discussions are normal, and the failure of those talks is normal as 

well. Trial preparation may have to go on the backburner during 

these periods, but a decision to abandon it entirely is generally 

not an excuse that warrants tolling.

Simple solutions to Justice Goldman’s dilemma are 

available to litigants in this position in any event, which he 

appears to acknowledge but finds unsatisfactory: If there is any 

question about whether a period of time was tolled, the plaintiff 

should bring the question to the trial court’s attention at the 
26

earliest opportunity at a status conference or other case 

management proceeding, and in addition, as the mandatory timeto-trial clock nears its end, bring a motion for an accelerated trial

date.8 By being proactive in these ways, plaintiffs can enlist the 

court’s assistance in clarifying how much allowed pretrial time 

remains should there be some dispute between the parties about 

it (simply by raising the issue plaintiffs may find out there is no 

dispute) and ultimately in meeting the mandatory time-to-trial 

deadline. Continuing diligence is not a high bar to meet. Just by 

doing these kinds of things—successful or not—plaintiffs can 

avoid falling into the category of those who show an “appalling 

8 See Wilshire Bundy Corp. v. Auerbach, supra, 

228 Cal.App.3d at p. 1289 (“An available remedy is at hand to 

correct calendaring or other errors made by the court or its clerk 

in the scheduling of a case. Upon timely discovery of the 

problem, a motion to specially set may be made and the court is 

bound to grant it. [Citations.] In short, this is a matter that is 

within the reasonable control of the diligent plaintiff and is thus 

avoidable.”) Wilshire involved a court-created time crunch, but 

the same principle applies whenever a plaintiff’s progress toward 

trial has been impeded due to any circumstances not of her own 

making. (See Warner Bros. Entertainment Inc. v. Superior Court

(2018) 29 Cal.App.5th 243, 266 [“The factor of reasonable 

diligence applies both when a trial court is considering whether 

to toll the five-year statute under section 583.340[, subdivision] 

(c) (the impossibility, impracticality or futility exception), and 

when the court is considering a motion for trial preference”].) 

Nearly identical discretionary considerations apply in both 

contexts. (Ibid. [“Likewise, while a decision on trial preference 

rests in the sound discretion of the trial court, the court must 

consider, among other factors, ‘dilatory conduct by plaintiff,’ so 

that a plaintiff must ‘make[] some showing of excusable delay’ ”].)
27

lack of diligence” and can “offer[] no justification for the delay.” 

(Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at p. 347.)

Sure, as Justice Goldman rightly suggests, there will be 

inevitable challenges—at any given time, more or different 

discovery may be needed to prepare for trial, and sometimes 

strategic trade-offs must be made as the clock ticks away—but 

that is the reality of civil litigation, and the solution is even more 

basic than taking the steps I have described above: Think ahead, 

have a back-up plan (or two, or three), and do everything 

reasonably possible to keep pushing ahead toward trial. If a 

plaintiff monitors the mandatory time-to-trial clock on an 

ongoing basis while operating in this fashion, and ultimately 

faces a five-year mandatory dismissal motion, the diligence 

calculus will tip in her favor.

These things, of course, are matters of litigation practice, 

but we should be interpreting procedural statutes in a manner 

that sets expectations for good practice. Whether the bar takes 

the hint or not, the important legal point here is that the tolling 

calculation rule set forth in section 583.340, subdivision (c) is for 

the court to apply once a five-year mandatory dismissal motion 

has been made. It is not a rule of convenience for litigants, 

available to reassure them that, if such a motion is ever made, 

they can predict with certainty that the motion will be defeated

based on an impracticability tolling argument. Success in 

defending such a motion on that basis must be earned. In the 

meantime, the imperfect knowledge litigants must accept in 

trying to assess whether a particular pretrial delay might 
28

someday be tolled—if resort must be had to a tolling argument—

is just part of the built-in incentive system that drives cases 

forward. It is a feature, not a bug.

C.

I readily acknowledge that, simple as the duty of 

continuing diligence is to state, sometimes it is fiendishly 

nuanced for courts to apply. Under the established mode of 

analyzing “causal connection” (Sierra Nevada Memorial-Miners

Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 473),

plus “reasonable diligence” (Tamburina v. Combined Ins. Co. of 

America, supra, 147 Cal.App.4th at p. 336), to tease out 

procedural delays that are truly avoidable from those that are 

not, there is often going to be overlap between causation and 

diligence. That is because these two concepts are interrelated. 

But they are not identical—or “indivisible,” as the lead opinion 

phrases it (lead opn., ante, at p. 31) in a turn of phrase that can 

be read to merge the traditional diligence inquiry out of 

existence.9

9 When I say the concepts of “causal connection” and 

“reasonable diligence” are interrelated, I mean there will be 

circumstances where the same facts bear on each of the two legal 

components of the analysis, not that these twin considerations 

are somehow at war with one another or so intertwined that they 

are confusing or impossible to understand. Although my 

colleagues appear to suggest otherwise, any trial judge charged 

with the task of applying a discretionary test for evaluating an 

issue where multiple considerations must be weighed and 

balanced in order to achieve substantial justice would readily 

know what I mean. This kind of multifactorial decisionmaking 

process—which is of course characteristic of an equity-based 
29

I do not think we should be demoting a test our Supreme 

Court has described repeatedly as the “critical factor” in 

analyzing impossibility, impracticability, or futility in this way. 

But even if we had the authority to rewrite the law and declare 

that causation and diligence should no longer be described as 

“independent,” I fail to see why there is any need to do so, except 

perhaps as an exercise in intellectual fastidiousness. As I see 

things, the court in De Santiago v. D & G Plumbing, Inc. (2007) 

155 Cal.App.4th 365, was correct to say that “[w]hether 

reasonable diligence is considered in the context of determining 

the element of causal connection (Sanchez) or as an independent 

factor (Tamburina) it is a critical factor to be considered in 

determining whether the impracticability exception applies.” (Id.

at p. 375.)

I am also reluctant to turn this exceedingly fine point of 

doctrine into a full-blown conflict in the case law. It is 

commonplace to say that we are not bound by the decisions of our 

sister courts, but I believe we should depart from them only for 

good reason. As a Sixth District panel once put it, “We 

acknowledge we are not bound by an opinion of another District 

Court of Appeal, however persuasive it might be.” (Greyhound

Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 

standard—can be difficult and often involves lots of subtleties. 

There is nothing bad or unwise about that from the standpoint of 

judicial administrability. Trial judges do it all the time. So do 

we, but without the difficult task of grappling with contested 

evidence and finding facts.
30

485.) But “[w]e respect stare decisis, . . . which serves the 

important goals of stability in the law and predictability of 

decision. Thus, we ordinarily follow the decisions of other 

districts without good reason to disagree.” (Ibid.)

I respectfully suggest we have no good reason to depart 

from Tamburina, which fits comfortably within a large body of 

case law interpreting and applying section 583.340, 

subdivision (c) over the last four decades, with roots going back 

much further than that. If there is something problematic in the 

case law we are called upon to apply here, it is the passing 

observation in De Santiago that Tamburina is in conflict with 

Chin v. Meier (1991) 235 Cal.App.3d 1472. The lead opinion

borrows that observation and makes it a central feature of its 

analysis. I think this is a phantom conflict.

In my view, it is possible to say that, yes, under Chin, a 

court asked to apply section 583.340, subdivision (c) must exclude

a period of impracticability from the computation of the statutory 

period to take a case to trial even if there is ample time to try the 

case after the tolled period, but at the same time that, under 

Tamburina, as part of its discretionary factual determination 

whether “conditions exist[]” (§ 583.340, subd. (c)) to justify a 

finding of genuine impracticability, the court may consider 

whether there was (i) a causal connection between the claimed 

delay and the missed trial deadline and (ii) diligent prosecution 

throughout the entire history of the case. At the last step of this 

analysis, both of these Tamburina factors may bear on whether 

delay stemming from the claimed tolling period was avoidable.
31

III.

In the final analysis, the disagreement I have with my 

colleagues is narrow, and it boils down to this: I would prefer to 

see us avoid building on what I view as a false conflict in the 

section 583.340, subdivision (c) precedent because, in doing so, we 

risk creating unnecessary confusion in the law. We may also be 

creating a need for the California Supreme Court to devote time 

and resources to resolving a conflict that need never have been 

elevated from stray dicta in one Court of Appeal case to 

established law.

STREETER, Acting P. J.
1

GOLDMAN, J., Concurring.

I join Justice Brown’s opinion, but write to offer some 

additional explanation in light of Justice Streeter’s concurrence.

I. The Problem

As Justice Streeter correctly suggests, the concern 

underlying the discussion of diligence in the lead opinion is that 

the phrase “at all stages of the proceedings” (Tamburina v. 

Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336) 

could be construed to mean that a plaintiff who has established 

circumstances of “impossibility, impracticability, or futility” 

under Code of Civil Procedure1 section 583.340, subdivision (c), 

may nonetheless lose the ability to toll the five-year statute upon 

a court’s determination that the plaintiff failed to exercise a 

particular level of diligence after the period of claimed tolling 

ended. Justice Streeter states that it “may seem neatly logical to 

say that a plaintiff who is entitled to tolling under 

section 583.340, subdivision (c), should not be stripped of that 

right for a post-tolling failure of diligence,” but contends that this 

framing “begs the question” because a plaintiff who has not been 

diligent throughout the entire case is not entitled to claim tolling 

under section 583.340(c) in the first place; in other words, you 

can’t lose what you never had. (Conc. opn. of Streeter, Acting

P. J., ante, at p. 13.) 

On one level, the two formulations have the same practical 

consequence; whether a later deficit of diligence means the 

1 All subsequent undesignated statutory citations are to the 

Code of Civil Procedure.
2

plaintiff forfeits the tolling or lacks the ability to claim it, the 

result is the same. Nonetheless, there is at least one difference 

between them. Justice Streeter’s framing means that it would be 

impossible, or at least premature, to determine at the end of the 

period of claimed tolling whether any time has been tolled. To 

ground the discussion, consider a lawsuit filed on January 1, 

2000; the plaintiff is required to bring the case to trial before 

January 1, 2005. Suppose that, on July 1, 2003—three and half 

years into the period—the parties enter into a putative 

conditional settlement, rendering it impracticable or futile to 

bring the case to trial. On June 30, 2004, after lengthy but 

unsuccessful efforts to satisfy the conditions of the settlement, 

the defendant notifies the plaintiff that it is abandoning further 

efforts and disputes that there was ever a binding agreement.2 

The next day, July 1, 2004, the parties appear for a case 

management conference. The parties tell the court what has 

happened over the past year, submit documentation, and set 

forth their respective positions. According to the plaintiff, the 

five-year period has been tolled for twelve months, so it has until 

January 1, 2006, to bring the case to trial. The defendant takes 

the opposite view: There has been no tolling, so the five-year 

period expires in six months—January 1, 2005.

2 My intent here is to paraphrase the situation in this case. 

Justice Streeter joins the lead opinion insofar as it concludes that 

what happened here constituted a circumstance of 

impracticability, notwithstanding the doubt he expresses about 

whether tolling would be appropriate in this hypothetical.
3

In contrast to the approach taken by Justice Streeter’s 

concurrence, I think the trial court already has available to it all 

the information it needs to determine when the five-year period 

expires. It would be markedly unhelpful for the court to declare 

the date unknowable because it depends on whether the plaintiff 

exercises reasonable diligence in the future. And the difference 

matters. Eighteen months out, the plaintiff can, for example, 

seek out additional fact and expert witnesses, and explore 

different theories through discovery—things that take time and 

may or may not pan out. Six months from trial, by contrast, the 

plaintiff may have to narrow rather than broaden its approach, 

abandoning unexplored or underexplored avenues and focusing 

on readying the case for trial based on what it already has or 

thinks it can get in the limited time left. In my view, if a 

circumstance of impossibility, impracticability, or futility existed 

between July 1, 2003 and June 30, 2004, then on July 1, 2004, 

the plaintiff was entitled to proceed as if it had eighteen months 

to bring the case to trial, not six. To conclude otherwise is to 

ignore the change that the California Law Revision Commission 

(the Law Revision Commission, or the Commission), and by 

extension the Legislature, intended to make with the enactment 

of the current statutory scheme in 1984.

I therefore disagree with Justice Streeter insofar as he 

would require a plaintiff in this situation to bring a motion for an

accelerated trial date. As I discuss below, that was the position 

of the courts in State of California v. Superior Court (1979) 

98 Cal.App.3d 643 (State of California), and Brown v. Superior 
4

Court (1976) 62 Cal.App.3d 197 (Brown), which the Law Revision 

Commission intended to abrogate. Because they held that tolling 

was unavailable if the plaintiff did not seek a trial date as if no 

time had been tolled, they effectively prevented plaintiffs from 

taking advantage of tolling. That approach denies plaintiffs a 

right I think the Legislature intended to protect when it enacted 

the current statutory scheme. While Justice Streeter sees no 

harm in a rule that requires plaintiffs to “do everything 

reasonably possible to keep pushing ahead toward trial,” (conc. 

opn. of Streeter, Acting P. J., ante, at p. 26–27) that formulation 

sidesteps the real issue: To “keep pushing ahead toward trial” 

entails different things depending on whether one is eighteen 

months from trial or six. I cannot agree that no harm is done by 

requiring a plaintiff to litigate the case as if no tolling is 

available.

Still, one word of clarification is warranted. While we are 

assuming in this hypothetical the existence of a fortuitously 

timed case management conference in which the parties can 

present their disagreement to the court, a prudent and diligent 

plaintiff should in any event ask for the defendant’s position as to 

whether there was any tolling (or about its willingness to 

stipulate to a different date), and if unsatisfied, seek guidance 

from the court well in advance of the original deadline of 

January 1, 2005. (Cf. Tanguilig v. Neiman Marcus Group, Inc.

(2018) 22 Cal.App.5th 313, 333, fn. 11 [“it seems to us there is a 

legitimate question here whether, in November and December 

2012, [plaintiff] should have taken more proactive steps to hedge 
5 

against the risk that her legal position on tolling might be 

wrong”].) Furthermore, if the plaintiff waited until, say, 

December 15, 2004, to raise the issue and the court determined 

there was no tolling because the plaintiff’s belief that there was 

any kind of settlement was ill-founded, the court would properly 

consider the plaintiff’s diligence or lack thereof (including its 

decision to wait until December 15th) in deciding whether to 

grant what we can assume would be a forthcoming request to set 

the case for trial within the next two weeks. (See, e.g., Salas v. 

Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 349; Minkin v. 

Levander (1986) 186 Cal.App.3d 64, 72; Beswick v. Palo Verde 

Hospital Assn. (1961) 188 Cal.App.2d 254, 260.) But the purpose 

of this diligence inquiry is to inform the court’s decision on a 

motion to specially set the case for trial—which the caselaw 

treats as equivalent to the standard for discretionary dismissal 

for failure to prosecute—not to decide whether the five-year term 

was tolled in the first place. It is the latter issue that was 

addressed by the Law Revision Commission. 

II. The Law Revision Commission 

The Law Revision Commission comment to subdivision (c) 

of section 583.340 states that “the time within which an action 

must be brought to trial is tolled for the period of the excuse, 

regardless whether a reasonable time remained at the end of the 

period of the excuse to bring the action to trial,” a new provision 

that it described as “overrul[ing] cases such as State of California 

v. Superior Court [(1979) 98 Cal.App.3d 643], and Brown v. 

Superior Court [(1976) 62 Cal.App.3d 197].” (Revised 
6 

Recommendation Relating to Dismissal for Lack of Prosecution 

(June 1983) 17 Cal. Law Revision Com. Rep. (1984) p. 936.) 

Elsewhere in its report, the Commission explained that the new 

rule “is consistent with the treatment given other statutory 

excuses” and “increases certainty and minimizes the need for a 

judicial hearing to ascertain whether or not the statutory period 

has run.” (Id. at p. 919.)

Under Justice Streeter’s view, even in principle plaintiffs 

cannot know by the end of the period of impossibility, 

impracticability, or futility whether the statute has been tolled. 

This result is contrary to the Commission’s intent to increase 

certainty and to ensure that tolling applies regardless of how 

much time remains. Moreover, because Justice Streeter agrees

that “the focal point of a trial court’s inquiry under 

section 583.340, subdivision (c), will be on the period of claimed 

delay” (conc. opn. of Streeter, Acting P. J., ante, at p. 10), and 

that the trial court’s inquiry in this case “should have been on 

events that took place during the claimed tolling period” (id. at 

p. 2), he defends an approach that he believes generally should 

not be employed, without explaining why or when it should be. 

This approach thereby adds yet another layer of uncertainty to 

the uncertainty already inherent in saying that tolling under 

subdivision (c) of section 583.340 depends not only on an 

evaluation of whether it was impossible, impracticable, or futile 

to bring the case to trial during the period at issue, but also on an 

evaluation of the plaintiff’s level of diligence after that period 

ended. 
7 

Justice Streeter faults the lead opinion for “read[ing] State 

of California and Brown as diligence cases” (conc. opn. of 

Streeter, Acting P. J., ante, at p. 16), but that is how the courts 

themselves analyzed the problem, albeit by construing “diligence” 

to mean diligent efforts to set the case for trial before the 

expiration of the original five-year period (i.e., without any 

tolling). (See State of California, supra, 98 Cal.App.3d at pp. 647, 

649 [rejecting plaintiffs’ contention that “they proceeded with due 

diligence and all expediency within their power to bring the case 

to trial at the earliest possible time,” because they “made no 

special effort to have this matter set for trial” even though six 

and a half months remained]; Brown, supra, 62 Cal.App.3d at 

p. 199 [rejecting plaintiff’s contention that she made “all 

reasonable attempts” to bring the case to trial after her release 

from prison, when two years remained, because the record was 

“barren of any attempt to obtain an early setting date or advance 

or accelerate the cause for trial before the expiration of the fiveyear period”]; Youngblood v. Terra (1970) 10 Cal.App.3d 533, 538

(Youngblood) [referring to plaintiff’s “dilatoriness” in requesting 

that the court reset the case for trial]; Sherberne & Associates v. 

Vector Mfg. Co. (1968) 263 Cal.App.2d 68, 73 [“We are of the 

opinion that a further exception to the ‘mandatory’ requirement 

of section 583 should not be made because of a period of inactivity 

that is excusable so long before the end of the five years that time 

enough is left to overcome the effect of its imposition”]; O’Donnell 

v. City & County of S. F. (1956) 147 Cal.App.2d 63, 66 [concluding 

that “the failure to obtain a trial date within [the time remaining 
8 

was] due to the lack of diligence of the attorneys involved”].)3 

Whether a “reasonable time remained at the end of the period of 

the excuse” was defined by whether a diligent plaintiff would 

have been able to request a trial date before the end of the 

original statutory period. 

Some cases after 1984 continued to follow this approach, 

but there is no indication that they considered an argument that 

it had been repudiated by the Legislature’s enactment of the Law 

Revision Commission’s proposed legislation. Consider Tejada v. 

Blas (1987) 196 Cal.App.3d 1335 (Tejada). Declaring that a 

plaintiff “must be able to demonstrate diligence in pursuit of his 

or her duty to expedite the resolution of the case at all stages of 

the proceedings,” it held that the plaintiff could not claim earlier 

tolling for impossibility or impracticability because she failed to 

move the court to set the case for trial before the original fiveyear term expired. (Id. at p. 1340.) The diligence demanded of 

her was thus that she seek a trial as if no time had been excluded 

from the computation, thereby denying herself the benefit of the 

tolling she sought. It is clear that Tejada was following State of 

California’s approach; Tejada cited it for the proposition that 

“[w]here 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 

3 Justice Streeter suggests that Weeks v. Roberts (1968) 

68 Cal.2d 802 also belongs in this category, but the issue there 

was a trial court’s discretion to deny a motion to specially set a 

case for trial, not the availability of tolling for an earlier period of 

impossibility, impracticability, or futility. 
9 

motion will preclude a later claim of impossibility or 

impracticability.” (Ibid; see also, e.g., Lauriton v. Carnation Co.

(1989) 215 Cal.App.3d 161, 164 [citing Tejada for the same 

proposition and observing that plaintiff failed to ask the court to 

set the case for trial within the three months that remained after 

he was discharged from bankruptcy].) 

Justice Streeter apparently does not accept that post-1984 

cases like Tejada and Lauriton employed the approach that the 

Commission repudiated, but even putting aside the express 

reliance on State of California, I do not see how they can be 

meaningfully distinguished. They all have the same 

fundamental problem: They effectively deny tolling by requiring 

plaintiffs who seek tolling to expend every reasonable effort to 

obtain a trial date as if no time had been tolled. Under this 

approach, the plaintiff in our hypothetical is entitled to a trial 

date eighteen months away only on condition that it ask the court 

to set trial for a date within the next six months, thereby 

forfeiting the additional year. Such an approach is inconsistent 

with the Commission’s explanation in its section 583.340, 

subdivision (c) comment that the time is to be tolled “regardless 

whether a reasonable time remain[s] at the end of the period of 

the excuse to bring the action to trial.” (Cal. Law Revision Com. 

com. to § 583.340.)

Justice Streeter characterizes the continued reliance on 

State of California as a mere citation problem, suggesting that 

Tejada could perhaps have made a different “judgment call” 

about whether to include a notation that the case had been 
10

“superseded by statute on other grounds.” (Conc. opn. of 

Streeter, Acting P. J., ante, at p. 19, fn. 6.) But State of 

California was not superseded “on other grounds”; it was 

superseded on the very ground on which Tejada relied—namely, 

that “[w]here 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 claim of impossibility or 

impracticability.” (Tejada, supra, 196 Cal.App.3d at p. 1340.) I 

don’t disagree with Justice Streeter’s assessment that the 

Commission believed it problematic that State of California and 

Brown “arbitrarily limited the availability of tolling for 

impracticability to a late-in-the-case scenario,” but the cases that 

continued to rely on them did the same thing. Justice Streeter 

observes that the Commission did not take issue with the 

diligence analysis that State of California and Brown applied, but 

only with the “rule” it attributed to them that no tolling is 

available when there remains a reasonable amount of time to 

bring the case to trial. The way those courts arrived at this rule, 

however, was by applying a diligence analysis that denied tolling 

if plaintiffs could have asked the court to set trial for a date that 

was within the original five-year period and failed to do so. Cases 

like Tejada and Lauriton that applied the same diligence analysis 

imposed the same rule, and in the same way, that State of 

California and Brown did. 

Justice Streeter argues that the Commission saw the 

problem with the rule to lie in the difficulty of figuring out what 
11

was a “reasonable time” remaining to bring the case to trial (e.g., 

his contention that courts’ judgments were “ad hoc”), rather than 

in the fact that it denied tolling to plaintiffs notwithstanding the 

existence of a condition of impossibility, impracticability, or 

futility earlier in the case. I think this is a misdiagnosis of the 

Commission’s concern. First, there is nothing in the text of the 

Commission’s report to support it, and if that is what the 

Commission had in mind, it could easily have said so. Second, on 

that score neither State of California nor Brown was particularly 

close: There were six and a half months remaining in the fiveyear period in State of California, and two years remaining in 

Brown. (State of California, supra, 98 Cal.App.3d at p. 649; 

Brown, supra, 62 Cal.App.3d at p. 199.) Neither case telegraphed 

a special problem with how to determine whether the remaining 

time was “reasonable”; each one merely faulted the plaintiff for 

failing to ask the trial court for a trial date within the time 

remaining. Third, the Commission rejected the very idea behind 

the rule, i.e., that tolling should be unavailable whenever the 

plaintiff still had a reasonable amount of time to bring the case to 

trial. That categorical rejection would be an overreaction to a 

concern that courts were not adequately explaining or evaluating 

what constitutes a “reasonable” amount of time, and if that were 

the only issue, there would have been ways for the Commission to 

refine or concretize the rule.4 And fourth, it is not inherently 

4 As Justice Streeter points out, in another section of its 

report the Commission addressed another problem: “when, 

within the last months before the five-year period is about to 
12

more difficult or uncertain for a trial court to determine whether 

the plaintiff still had a reasonable amount of time to bring the 

case to trial than it is to determine whether the plaintiff 

exercised reasonable diligence throughout the litigation. For that 

reason, it is unlikely the Commission would have viewed the 

latter inquiry as the solution if it believed the problem with the 

former inquiry was that it was unworkably uncertain. 

Justice Streeter also argues that the Commission rejected 

Brown and State of California because they were “onedimensional,” in contrast to the “all of the circumstances of the 

individual case” test employed in Moran v. Superior Court (1983) 

35 Cal.3d 229. (Conc. opn. of Streeter, Acting P. J., ante, at 

p. 18.) But often these cases, including State of California itself, 

claimed to be following the same rule, i.e., that it is necessary to 

consider “all the circumstances” of the case. (See, e.g., State of 

California, supra, 98 Cal.App.3d at p. 650; Youngblood, supra,

10 Cal.App.3d at p. 538; Tejada, supra, 196 Cal.App.3d at 

pp. 1339–1340.) If it was not obvious that there was a 

circumstance of impossibility, impracticability, or futility, these 

expire, an event occurs that suspends the running of the statute,” 

leaving the plaintiff with “only a short time to bring the action to 

trial,” which in many cases “is an unrealistic or impossible 

deadline to meet.” (17 Cal. Law Revision Com. Rep., supra, at 

p. 913.) The Commission addressed this problem by amending 

the law (through the addition of section 583.350) “to allow six 

months to bring the action to trial where there has been 

suspension of the five-year statute for any reason within the last 

six months of the five-year period.” (17 Cal. Law Revision Com. 

Rep., supra, at p. 913.) The time remaining in State of California

was greater than the six months provided for by this section. 
13

courts did consider diligence both in the post-tolling period and

during the period of claimed excuse. (See Brown, supra, 

62 Cal.App.3d at p. 199 [plaintiff’s incarceration did not prevent 

her attorney from prosecuting the case during that time]; 

Youngblood, at p. 537 [noting that, while the court ordered the 

case off calendar on its own motion, it did so after the plaintiff 

requested a continuance]; Tejada, supra, 196 Cal.App.3d at 

pp. 1340–1341 [plaintiff could have addressed defendant’s 

uncooperative conduct earlier in the case because there is an 

“arsenal of weapons” to ensure a defendant does not benefit from 

dilatory tactics]; Lauriton v. Carnation Co, supra, 215 Cal.App.3d 

at p. 165 [plaintiff could have prosecuted his case while in 

bankruptcy].) If we are to consider the Commission’s proposal in 

relation to the principle that it is necessary to consider “all the 

circumstances of the individual case,” it is more accurate to say 

that the Commission directed courts to exclude from their 

consideration of those circumstances whether, with the exercise 

of reasonable diligence, the plaintiff could have brought the 

matter to trial within the original statutory period. Cases like 

State of California and Brown relied on a factor that the 

Commission believed should be irrelevant.5 

5 The court in Moran had no occasion to consider whether 

the plaintiff had acted diligently after the period of claimed 

excuse, because the problem arose at and through the end of the 

statutory period. There was no dispute that the time during 

which the parties participated in a court-ordered arbitration 

should be excluded, and that 41 days remained once the time 

began to run again. (Moran v. Superior Court, supra, 35 Cal.3d
14

Finally, Justice Streeter invites us to read the 

Commission’s reference to “certainty” when it recommended the 

abrogation of State of California and Brown to mean simply its 

“declared objective to achieve clarifying uniformity in the case 

law.” (Conc. opn. of Streeter, Acting P. J., ante, at p. 20.) I read 

it differently. Again, the Commission explained that under the 

at p. 234 & fn. 5.) The question was whether the remaining 41-

day period, as well as additional time beyond it, should be 

excluded because the clerk failed to reset the case for trial. In 

answering that question, the court noted that the plaintiff 

“immediately” contacted the clerk’s office to request “that the 

matter be promptly reset for trial in order to meet the 

approaching five-year deadline” and made follow-up calls during 

the same week; the five-year period (as tolled by the arbitration) 

expired while the plaintiff was waiting for a response. (Id. at 

p. 239.) On the other hand, the court acknowledged that, after 

placing calls to the clerk, plaintiff’s counsel did nothing for 

almost four months, moving to have the case specially set for trial 

only after the defendants had moved to dismiss for failure to 

comply with the five-year statute. (Id. at p. 236.) But Moran

reversed the court of appeal, which had ordered the action 

dismissed (see ibid.), because the high court concluded that the 

plaintiff’s “inactivity in the relatively short period following the 

request for trial de novo” was counterbalanced by the fact that 

she had “vigorously prosecuted her case over a number of years” 

before that. (Id. at p. 240.) And it pointed out that by taking 

discovery, for example, the plaintiff had satisfied “one of the 

goals” of the five-year statute by preserving evidence before it 

was destroyed, lost, or forgotten. (Ibid.) The court saw diligence 

as a means, not an end: “Neither the courts nor litigants have 

any legitimate interest in preventing a resolution of the lawsuit 

on the merits if, through plaintiff’s exercise of reasonable 

diligence, the goals of section 538[, subdivision] (b) have been 

met.” (Id. at p. 238.) I therefore think it would misread the 

court’s point to construe the opinion as supporting a position that 

tolling should be denied simply because at some point in the case 

the plaintiff did not show diligence. 
15

proposed change, “the statute tolls regardless when during the 

statutory period the excuse occurs,” which “increases certainty 

and minimizes the need for a judicial hearing to ascertain 

whether or not the statutory period has run.” (17 Cal. Law 

Revision Com. Rep., supra, at p. 919.) This language indicates 

that the Commission sought to increase certainty, at least in 

part, for litigants by enabling them to calculate when the 

mandatory time for bringing the case to trial expires; otherwise, 

the reference to “minimiz[ing] the need for a judicial hearing” 

makes no sense. Justice Streeter may be correct that we cannot 

expect “ ‘certainty and ex ante clarity’ ” for litigants who are 

“subject to a discretionary decisionmaking regime” (conc. opn. of 

Streeter, Acting P. J., ante, at p. 24), but that observation 

counsels against a conclusion that the Commission was proposing 

a “clarification” of the law that would mean only the court, and 

only at the end, has the ability to determine the date by which 

the action must be (or must have been) brought to trial. 

III. The Statutory Language 

It is not only the Law Revision Commission’s explanation of 

section 583.340, but also the language of the statute itself, that 

supports a conclusion that plaintiffs and courts should be able to 

know by the end of the period of excuse whether any time has 

been tolled. As Justice Streeter implicitly recognizes, one would 

search section 583.340 in vain for any words expressing the idea 

that tolling under subdivision (c), unlike subdivisions (a) and (b), 

can be lost or rendered unavailable if a court finds that the 

plaintiff did not exercise diligence at some point after the period 
16

of tolling ended. The statute provides straightforwardly that 

“there shall be excluded” from the computation the time during 

which any of the “conditions” described in subdivisions (a), (b), 

and (c) existed. To be sure, subdivision (c) involves a more 

flexible inquiry than subdivisions (a) or (b), and because of the 

variety of factors the court may weigh, a finding that there was a 

condition of impossibility, impracticality, or futility requires an 

exercise of the court’s discretion. (See, e.g., Brown & Bryant, Inc. 

v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 

251–252 [“whether prosecution of an action was impossible, 

impracticable, or futile is a matter within the trial court’s 

discretion and will not be disturbed on appeal unless an abuse of 

discretion is shown”].) But upon a determination that such a 

condition exists, there is no ambiguity in the statute about 

whether that time should be excluded.6 The evident purpose of 

section 583.340 is to ensure that plaintiffs do not face mandatory 

dismissal under section 583.310 before they have had five years 

in which they could bring the case to trial. And apart from the 

treatment of subdivision (c) that Justice Streeter proposes, a 

6 Recognizing the problem posed by the phrase “shall be 

excluded,” Justice Streeter points to the court’s “ability to 

evaluate whether ‘conditions exist[ ]’ that warrant tolling.” But 

the word “condition” refers to whether there was a time during 

which “[b]ringing the action to trial, for any other reason, was 

impossible, impracticable, or futile.” (§ 583.340, subd. (c).) I 

agree that the trial court has the ability to decide whether such a 

condition existed, but the word “condition” cannot reasonably be 

construed as an additional free-floating grant of discretion to 

reject tolling notwithstanding the court’s determination that a 

condition of impossibility, impracticability, or futility existed. 
17

plaintiff never does face mandatory dismissal based on a finding 

that diligence was lacking at some other point during the fiveyear period.

Of course, a plaintiff who fails to exercise diligence, 

whether or not after a period of excuse, may still face dismissal 

under the statute giving the court discretion to dismiss an action 

based on a delay in prosecution. (§ 583.410, subd. (a) [“The court 

may in its discretion dismiss an action for delay in prosecution 

pursuant to this article on its own motion or on motion of the 

defendant if to do so appears to the court appropriate under the 

circumstances of the case”]; see Jensen v. Western Pac. R. Co.

(1961) 189 Cal.App.2d 593, 597 [while plaintiffs have a “right” 

under the mandatory dismissal statute to wait five years before 

bringing the case to trial, the court can dismiss for want of 

prosecution during that period under the discretionary dismissal 

statute].) But the existence of separate statutory provisions is a 

reason to preserve the distinction between discretionary and 

mandatory dismissal. Justice Streeter’s approach erases the line 

between them by advocating a rule that gives the court discretion 

to dismiss under the mandatory dismissal statute 

notwithstanding a conclusion that there existed an extended 

condition of impossibility, impracticability, or futility that 

section 583.340 directs “shall be excluded” from the computation 

of time.

Reading the text of section 583.340 together with the Law 

Revision Commission’s explanation of it, I cannot conclude that 

the Legislature intended courts to apply a rule that has as its 
18

consequence that plaintiffs cannot know whether a period of 

impossibility, impracticability, or futility has tolled the statute, 

and that requires them to act as if no time has been tolled. On 

the contrary, the intent is to give plaintiffs the benefit of tolling 

when there are circumstances of impossibility, impracticability, 

or futility. (See New West Federal Savings & Loan Assn. v. 

Superior Court (1990) 223 Cal.App.3d 1145, 1155 [“so long as the 

court may conclude that there was a period of impossibility, 

impracticability or futility, over which plaintiff had no control, 

the court is required to toll that period even if there is ample time 

after said period of impracticability within which to go to trial”].) 

In 1983, the Commission complained that “[t]he state of the law 

is generally unsatisfactory, requiring frequent appellate decisions 

for clarification,” observing that there have been “hundreds of 

cases . . . interpreting, clarifying, and rewriting the statutes.” 

(17 Cal. Law Revision Com. Rep., supra, at p. 910 & fn. 12.) I am 

not sure the volume of decisions has declined, but because Justice 

Streeter’s approach would displace the Commission’s plain 

statutory language with greater uncertainty about whether and 

when tolling is available, I think it would be a step in the wrong 

direction. 

 GOLDMAN, J. 
Trial Court: San Francisco City & County Superior Court

Trial Judge: Hon. Ethan P. Schulman

Counsel: Welty, Weaver & Currie, Jack W. Weaver; 

Haroche Law, Bob Haroche for Plaintiffs and 

Appellants.

 

Vogl Meredith Burke, Michael S. Burke, Mark 

D. Fenske for Defendants and Respondents

Kwok Hung Szeto, Nikki So-Kuen Szeto, and 

Patrick Szeto.

JRA Law Partners, Robert O. Divelbiss for 

Defendants and Respondents ARP-I, LLC, and 

ARP-II, LLC.

Seto et al. v. Szeto et al. (A163846, A164849, A164925)