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The complaint here alleges that Tornberg and others involved in the transaction deceived the couple into selling their home under threat of foreclosure. She sought rescission and cancellation of the deed transferring ownership of the property. It was therefore necessary for Gaines to demonstrate that the delay had a significant enough impact on the litigation to elevate it from an ordinary circumstance to a circumstance of impracticability. 541.) Upon the filing of a statement of nonagreement by the mediator, Gaines was entitled to request that the original trial date be reinstated, or that she receive priority for a new trial date. (b).) There is no reason to believe that the stay, entered at the parties' request, could not have been similarly vacated at their request.Once begun, the suit followed an involved procedural journey. This determination requires a fact-specific inquiry in light of all of the circumstances in the case. 730–731.)On this record, the trial court was within its discretion to conclude that the time attributable to the partial stay did not qualify for tolling under section 583.340(c). 5, 8, 15; § 583.130), derives from the very same premise. Indeed, the court order facilitated plaintiff's return to court by designating a trial-setting conference on July 16, 2008, during the period of the stay and two months before the originally scheduled trial date.In April 2008 Gaines applied for an order to vacate a September 2008 trial date, which was scheduled to occur less than two years into the pendency of the litigation. There, the plaintiff appealed the trial court's order quashing service on one of the defendants. There the plaintiff sought to exclude time during which stays of discovery and other specific proceedings were in effect. 721.) We held that “the prosecution of an action is stayed under subdivision (b) only when the stay encompasses all proceedings in the action.” (Id. 722, first italics added.) We reasoned: “subdivision (b) contemplates a bright-line, nondiscretionary rule that excludes from the time in which a plaintiff must bring a case to trial only that time during which all the proceedings in an action are stayed.” (Id. 726, italics added.) Such complete stays “ ‘stop the prosecution of the action altogether’ “ (id. We review the question de novo because it does not hinge on the resolution of factual questions concerning credibility of extrinsic evidence. 865.) As with the stay of trial exception discussed above, the label used in the trial court's order is not dispositive. Mediation is “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” (§ 1775.1, subd. Accordingly, the case was properly dismissed under the mandatory provisions of section 583.360. The trial court gave its approval, striking an existing trial date and ordering that the action be stayed for a period of 120 days.The application stated that all parties had agreed to vacate the trial date, to stay the action for 120 days, and to participate in mediation. App.3d 477, 482 (Holland ).) What matters is whether the order is functionally in the nature of a stay, which implicates the legislative purposes behind tolling the five-year period, or whether it is functionally in the nature of a continuance, which does not. (1965) 62 Cal.2d 861, 865 (Parsons ).)The long-standing judicial understanding of the term stay in the context of the five-year statute is that it refers to those postponements that freeze a proceeding for an indefinite period, until the occurrence of an event that is usually extrinsic to the litigation and beyond the plaintiff's control. While this conclusion brings an end to plaintiff's suit, that is what the five-year statute is designed to do. 1.) While attempts to work cooperatively are to be lauded, they do not absolve litigants from the obligation to prosecute claims within the statutory guidelines. The court today concludes that the 120–day period during which the action was stayed qualifies neither as a period when “[p]rosecution or trial of the action was stayed” (§ 583.340(b)) nor as a period when “[b]ringing the action to trial” was “impracticable” (§ 583 .340(c)). No appearance for Defendants and Respondents Joshua Tornberg, Craig Johnson, Ray Management Group, Inc., and A. The order struck the trial date and “stayed” the proceedings while the parties engaged in mediation and completed all outstanding discovery. Knapp, Petersen & Clarke, Garcia Legal, Steven Ray Garcia and Alexander Levy for Defendants and Respondents Lehman Brothers Holdings, Inc., and Aurora Loan Services, LLC. Plaintiff's lawsuit was dismissed for failure to comply with Code of Civil Procedure 1 section 583.310, which requires that an action “be brought to trial within five years after the action is commenced against the defendant.” The issue here is whether the statute was tolled by an order entered pursuant to the parties' agreement.

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(Lehman), by then in bankruptcy, was the actual owner. 540.) It does not effectively abate the litigation “ ‘as to all issues, as to all causes of action, and as to all parties.’ “ (Marcus, supra, 75 Cal. (a)), unless the action “is or remains submitted to mediation ․ more than four years and six months after the plaintiff has filed the action ․ “ (id., subd. The period involved here did not fall within section 1775.7's timeline. 9.) But these descriptions provide little assistance in determining whether submitting an action to mediation should be considered a step in the prosecution of the action under section 583 .340(b). App.4th 842, 850.) The parties' communications regarding the stay explicitly set forth their expectations. 472.)Here, for example, when the 120–day stay was entered on April 3, 2008, the scheduled trial date was five months out, beyond the period of the stay. And nothing prevented Gaines from conducting her own trial preparation during this time. Even after the order was entered, Gaines largely retained control over the proceedings. (Rule 3.853․) In fact, unless the parties have agreed to a binding award, any party who voluntarily enters mediation may revoke its consent and withdraw from the dispute resolution process. At the trial-setting conference on July 16, 2008, the parties appeared before Judge Kalin, sitting temporarily for Judge Lee, who was out of the country.On May 19, 2012, Fidelity National Title Insurance Company (Fidelity) moved to dismiss for failure to bring the action to trial within the five-year time frame required by section 583.310. App.4th 348, 358–359 [removal of case to federal court suspended trial court's jurisdiction]; Bergin v. App.3d 23, 25–26 [appeal of motion for summary judgment suspended trial court's jurisdiction].)By contrast, stipulated continuances that are not tied to any matter outside the parties' control more logically fall under section 583.330. App.3d 192, 196.) There was no written stipulation or oral agreement here. The court in Brock found the distinction between an action at law and a contractual arbitration proceeding critical in deciding that a stay pending contractual arbitration tolled the five-year period under section 583.340(b). 1792–1793, 1796.)By contrast, mediation is not an event outside the lawsuit; it is one means by which a settlement of the lawsuit may be reached. By its terms, the April 3, 2008 order was not a complete stay “ ‘used to stop the prosecution of the action altogether.’ “ (Bruns, supra, 51 Cal.4th at p. 730.)Our construction of section 583.340(b) should encourage, rather than deter, agreements to partial stays and to continuances of the trial within the five-year period as the parties deem necessary. The letter stated the parties' agreement that Aurora would not be required to enter an appearance or answer the fourth amended complaint for 120 days and that Gaines would not file a request for default judgment during that period. Turkus (1958) 51 Cal.2d 402, but those cases are distinguishable. Rather, in these types of circumstances, 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. Additionally, case law both predating and postdating the 1984 statutory revision has long held that “[f]or the tolling provision of section 583.340(c) to apply, there must be ‘a period of impossibility, impracticability or futility, over which plaintiff had no control,’ “ because the statute is designed to prevent avoidable delay. (§ 170.6.) On October 2, 2008, the case was reassigned to Judge Rex Heeseman, and a status conference was set for November 6, 2008.When the motion was filed, the case had been pending for approximately five and a half years. At no time did Gaines move to advance the trial date. That section provides that the parties may extend the five-year period during which an action must be brought to trial by written stipulation or oral agreement made in open court. We conclude that this order striking the trial date at the parties' request should be construed as a continuance of the trial of the action rather than a stay. Instead, the date was struck pending two defined contingencies: a definite 90–day period for mediation to occur and a 120–day stay of the proceedings. 730.) It directed that some discovery continue, and that the parties participate in mediation. (See § 583.130.) Plaintiffs who desire tolling for the relevant period can achieve it by obtaining defendants' written stipulation or express oral agreement in court. The letter also set forth several agreements designed “to preserve the status quo as between themselves concerning the 5,000 Loan and the Longwood Property,” specifically: “(3) Aurora Loan agrees to take no further steps during the Stay to foreclose the 5,000 Loan against the Longwood Property; (4) Aurora Loan agrees to toll as of February 26, 2008 the ‘running’ of the three month period provided for in Civil Code section 2924[, subdivision] (a)(2); (5) Aurora Loan agrees not to post or record or publish a notice of sale as provided for by Civil Code sections 2924 [, subdivisions] (a)(3) and [ (f) ] during the Stay; (6) Aurora Loan and Gaines shall execute a stipulation to toll the recordation of a Notice of Trustee's Sale during the Stay, which stipulation may be filed with the Los Angeles Superior Court for entry by the court․” Although the letter specifically mentioned the tolling effect of these latter agreements, nowhere does it mention tolling of the five-year period for trial. App.2d 923, 926–927, 930–933 [without language regarding five-year period, stipulations to continuances did not estop defendant from seeking dismissal for delay] with City of Los Angeles v. 405, 408–411 [parties expressly stipulated that an agreed-upon continuance of one year would not count against the five-year period].)Gaines relies on Tresway Aero, Inc. In Tresway, the plaintiff served a summons on the defendant within three years of filing the complaint. 441–442.) In Woley, the plaintiff, in the fifth year of litigation, filed a motion to advance the case for trial, citing former section 583. 404.) The defendant requested a continuance and the parties entered a stipulation to continue the plaintiff's motion for summary judgment and the trial “ ‘beyond [the] five year period․’ “ (Id. 405.) The defendant subsequently moved to dismiss the action based on the plaintiff's failure to bring the case to trial within five years. 407–409.) Here, by contrast, the stay in question ended well before the five-year period expired. Impossibility, Impracticability, or Futility A circumstance that does not qualify for automatic tolling under section 583.340(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. 471.)But what is meant by establishing a condition of impossibility, impracticability, or futility in the first instance? On November 6, 2008, Judge Heeseman lifted the stay.Facing foreclosure, they agreed to sell the property to Tornberg, Johnson, and Ray Management (Tornberg) with an option to lease the property and repurchase it. 333–334.) This is because ordinary delays, even ones beyond the plaintiff's control, are already accounted for in the five-year period. 472 [generally, counsel's routine illness is treated in the same manner as the usual and ordinary proceedings attendant to moving the case to trial].) Here, the delay was occasioned by the parties' agreement to participate in mediation; the need for Aurora to make an appearance and to conduct discovery; and the need for Aurora and Countrywide to file certain defensive pleadings.Tornberg obtained loans that were secured by the property and subsequently transferred to various entities. Gaines filed a complaint on November 13, 2006, alleging negligence, fraud, intentional infliction of emotional distress, and failure to follow home equity sales contract requirements contained in the Civil Code. In Tamburina, for example, the parties' stipulations established that the plaintiff's counsel suffered an unusually lengthy illness which deprived Tamburina of a substantial portion of the five-year period (424 days) to prepare for trial. These are ordinary steps in the prosecution of the action.The parties agreed that responses to pending discovery requests would not be stayed. Accordingly, we do not read too much into the trial court's declaration that the trial date is being “struck,” as opposed to “continued” or “stayed.” We review the question de novo because it does not hinge on the resolution of factual questions concerning credibility of extrinsic evidence. The five-year rule is mandatory and dismissal for noncompliance is required. (b).) The dissent protests that today's result “reward[s] plaintiff for working cooperatively with an opposing party by depriving her of her day in court.” (Dis. Established case law advised Gaines to seek an express stipulation from the parties that the agreed-upon postponements would extend the five-year period. The result is to reward plaintiff for working cooperatively with an opposing party by depriving her of her day in court. The history of the stay at issue in this case, however, warrants some elaboration.Consistent with this agreement, the trial court's April 3, 2008 order: (1) “struck” the current trial date of September 22, 2008; (2) “stayed [the case] for a period of 120 days except that [the] parties are to respond to all previously served and outstanding written discovery;” (3) set a post-mediation and trial-setting conference on July 16, 2008; and (4) directed “all parties ․ to participate in good faith in a mediation of all claims in this case within the next 90 days.” The ensuing mediation conducted on May 30, 2008, was not successful except that Gaines moved to dismiss one defendant on June 9, 2008, in exchange for the reconveyance of its 0,000 interest in the property. Because that result cannot be squared with either the text of section 583.340 or the statutory policy favoring resolution of cases on the merits, I respectfully dissent. The facts relevant to the question before us are, as the majority says (maj. In November 2006, plaintiff Fannie Marie Gaines filed a complaint against defendants A. Roof, Josh Tornberg, and several others, including Countrywide Home Loans, Inc.Much delay resulted from disputes over that question and plaintiff's ultimate motion for relief from Lehman's bankruptcy stay. Contractual arbitration and mediation are different. Contractual arbitration is a remedy distinct from an action at law. 1793, 1795–1796.) A party seeking to enforce contractual arbitration is statutorily entitled to a stay of pending legal actions. In Howard, supra, 10 Cal.4th 424, we held that the parallel statute governing judicial arbitration (§ 1141.17) “restricts the amount of time that can be tolled automatically as the result of submitting an action to arbitration,” thus effectively preempting automatic tolling under section 583.310 for arbitration conducted in the first four and a half years of the litigation. 434.) The provisions of section 1775.7 demonstrate the Legislature's intent to treat mediation as part of the prosecution of the action. Many pretrial proceedings may terminate the action short of trial: Discovery between the parties may result in a settlement, and a demurrer or summary judgment motion may lead to a dismissal. App.4th 1416, 1423 (Jordan ); International Engine Parts, Inc. Nowhere did those communications reflect an understanding that the five-year statute would be tolled. Aurora, a recently added defendant, had not made an appearance, answered the amended complaint, or conducted discovery, and Countrywide anticipated filing a motion for summary judgment. Indeed, Gaines announced ready for trial against all named defendants in August 2009, three years into the litigation. The purpose of mediation is to resolve disputes “in a fair, timely, appropriate, and cost-effective manner” without derailing the litigation. (a).) Parties participate voluntarily and may withdraw at any time. Judge Kalin indicated that the case would be reassigned.We need not delve into those complexities to resolve the question before us. Its assertion constitutes a plea in abatement to the civil suit. (§ 1281.4.) “Once a court grants [a] petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration” to determine, upon conclusion of the arbitration proceedings, whether an award on the merits requires dismissal of the legal action. 1796.) This is so, in part, because the whole point of contractual arbitration is to obviate the need for an action at law. The dissent challenges this conclusion by citing general case law and statutory language that describes mediation as an “ ‘alternative’ “ to trial or litigation. But that result does not change the fact that these are all “step[s] in [the] action.” (Ray Wong, supra, 199 Cal. 18.) Indeed, section 583.130 sets forth a “policy favoring trial or other disposition of an action on the merits.” (Italics added.) Mediation resulting in a voluntary settlement of the lawsuit by the parties can be one such disposition. App.3d 1212, 1221.)Substantial evidence supports the trial court's rejection of Gaines's estoppel argument. A letter drafted by Aurora and signed by Gaines's counsel memorialized the agreement between them. It would thus be illusory to ask if it was impracticable for Gaines to try the case during the period of the stay because the posture of the case would not have allowed for such a result. Nothing about these circumstances elevated an ordinary delay agreed to by the parties into an extraordinary one. On September 4, 2008 the case was reassigned to Judge Barbara Meyers, but she was peremptorily challenged on September 12, 2008.At a November 6, 2008, status conference, the mediation stay was lifted and an August 29, 2009, trial date was set. 3.)The label the trial court uses is not dispositive of the inquiry. (Countrywide) and Fidelity National Title Insurance Company (Fidelity).The original stay was ordered to last 120 days, but was actually lifted after 217 days. The complaint alleged that she and her husband had been deceived into selling their home to Tornberg under threat of foreclosure.

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