SLATER v. RALEY’S SOUTH Y CENTER

LAW AND MOTION CALENDAR MARCH 27, 2026

2. SLATER v. RALEY’S SOUTH Y CENTER, SC20210019

Motion to Dismiss

On February 3, 2026, pursuant to Code of Civil Procedure sections 583.310 and

583.360, defendant Raley’s South Y Center (“defendant”) filed the instant motion to

dismiss for failure to bring the action to trial within five years.

On March 16, 2026, plaintiff Brian Slater (“plaintiff”) filed a timely opposition.

Defendant filed no reply.

1.

Background

Plaintiff commenced this personal injury action on February 1, 2021. A trial date was

set for April 28, 2025. During the settlement conference on March 25, 2025, plaintiff’s

counsel informed the court that plaintiff would be undergoing an MRI to determine

whether plaintiff needed surgery on his shoulder as a result of the underlying incident.

The court vacated the trial date.

On October 1, 2025, the matter was before the court for re-setting of trial. A

specially-appearing attorney for Mr. Woelfel indicated Mr. Woelfel was on medical

leave and had instructed the attorney to request a continuance of 30 to 60 days to come

back and re-set trial. Defendant did not object. The court granted plaintiff’s request and

continued the matter to January 6, 2026.

Defense counsel failed to appear at the January 6, 2026, hearing, as well as the next

hearing on January 20, 2026. The court has reviewed the audio recordings of both hearings.

During the January 6 hearing, the court noted the upcoming five-year deadline

under Code of Civil Procedure section 583.310, and pointed out that neither party had

filed the required Case Management Conference Statement prior to the hearing.

Mr. Woelfel stated that, since the October 1, 2025, hearing, he had not heard from

defense counsel and had not reached out to defense counsel. The court continued the

LAW AND MOTION CALENDAR MARCH 27, 2026

matter for two weeks, and issued an Order to Show Cause regarding defense counsel’s

failure to appear. The court directed the clerk to serve notice upon defendant.

During the January 20 hearing, the court clerk indicated that notice had not been

served upon defendant, as directed by the court on January 6. Again, the court raised

the issue of the five-year deadline. Mr. Woelfel made an oral request to set trial as soon

as possible and grant an extension for the five-year deadline due to (1) the non-

appearance of defense counsel, and (2) the prior good-cause determination to vacate

the April 28, 2025, hearing based on the uncertainty of whether plaintiff required shoulder surgery. Mr. Woelfel informed the court that, ultimately, plaintiff and his

doctors determined he did not need surgery. The court indicated it would continue the

matter to February 3, 2026, and asked Mr. Woelfel if that date would work. Mr. Woelfel

raised no objection. Instead, he responded, “I will make that work, Your Honor.” The

court continued the matter to February 3, 2026.

To date, plaintiff has not brought the case to trial.

2. Legal Principles

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

against the defendant.” (Code Civ. Proc., § 583.310.) “This dismissal requirement is

mandatory and ‘not subject to extension, excuse, or exception except as expressly

provided by statute.’ [Citation.] ‘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.’ [Citation.]” (Seto v.

Szeto (2022) 86 Cal.App.5th 76, 85.)

If a plaintiff does not bring an action to trial within the time prescribed, the action

“shall be dismissed by the court on its own motion or on motion of the defendant, after

notice to the parties.” (Code Civ. Proc., § 583.360, subd. (a).) To determine whether the

prescribed period has expired, the court must exclude any time when, amongst other reasons, “[b]ringing the action to trial ... was impossible, impracticable, or futile.” (Code

LAW AND MOTION CALENDAR MARCH 27, 2026

Civ. Proc., § 583.340, subd. (c).) The plaintiff bears the burden of proving that the

circumstances warrant applications of the exception to the five-year rule; the trial court

has discretion to determine whether the exception applies. (Bruns v. E-Commerce

Exchange, Inc. (2011) 51 Cal.4th 717, 731.) Applicability of the Code of Civil Procedure

section 583.340, subdivision (c) exception “is generally fact specific, depending on the

obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of

reasonable diligence in overcoming the obstacles.” (Howard v. Thrifty Drug & Discount

Stores (1995) 10 Cal.4th 424, 438.) “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. [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.” (Moran v. Superior Court (1983) 35

Cal.3d 229, 238.) “ ‘ “Reasonable diligence places on a plaintiff the affirmative duty to

make every reasonable effort to bring a case to trial within five years, even during the

last month of its statutory life.” ’ ” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th

1262, 1270, italics omitted.) “The exercise of reasonable diligence requires a plaintiff to

‘ “keep track of the pertinent dates which are crucial to maintenance of his lawsuit, and

to see that the action is brought to trial within the five-year period.” ’ ” (Wilcox v. Ford

(1988) 206 Cal.App.3d 1170, 1175.) A plaintiff “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.) It is not the trial court's job to

ensure a case is brought to trial within the five-year period. Instead, “if a trial court does

not take any action,” it is the plaintiff's obligation “ ‘to seek an order from the trial

court’ ” scheduling the trial by the statutory deadline. (Oswald v. Landmark Builders, Inc.

(2023) 97 Cal.App.5th 240, 249.)

LAW AND MOTION CALENDAR MARCH 27, 2026

3.

Discussion

Based on the filing date of February 1, 2021, the five-year deadline to bring the case

to trial would regularly expire on January 31, 2026.

Plaintiff argues it was impossible, impracticable, or futile to bring the action to trial

within the required time period because (1) defendant repeatedly failed to appear at

status conferences to set trial (Opp. at 1:21–24); and (2) the uncertainty of whether

plaintiff needed to undergo shoulder surgery “made it extremely uncertain and

impractical to try the case or settle at that time due to the huge difference in damages should the shoulder surgery have been necessary.”1 (Opp. at 2:8–12.)

The court finds that plaintiff has not established it was impossible, impracticable, or

futile to bring the action to trial. Ultimately, plaintiff did not require surgery on his

shoulder. It appears that this determination was made prior to the October 1, 2025,

hearing, but, at any rate, Plaintiff’s attorney made this point clear to the court on

January 6, 2026, stating plaintiff was ready for trial. Plaintiff raised no objection to the

court continuing the January 6 Case Management Conference, or even the January 20

Case Management Conference, despite the court repeatedly mentioning the five-year

deadline.

Despite defense counsel’s failure to appear on January 6, and the court’s clerical

error of failing to serve defendant notice of the January 20 hearing, it was plaintiff’s

obligation to seek an order from the trial court scheduling trial by the statutory deadline. He did not do so.

//

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1 Plaintiff does not identify the alleged time period he claims it was impossible,

impracticable, or futile to bring the case to trial due to plaintiff’s shoulder injury, but surgery appears to have been contemplated in 2025.

LAW AND MOTION CALENDAR MARCH 27, 2026

There being no applicable exception to the five-year deadline under Code of Civil

Procedure section 583.310, the court grants the motion to dismiss with prejudice.

TENTATIVE RULING # 2: THE MOTION TO DISMISS IS GRANTED. NO HEARING ON THIS

MATTER WILL BE HELD (LEWIS v. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247),

UNLESS A NOTICE OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS

TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE

TO THE COURT AT (530) 573-3042 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS

ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE BY

TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR

TO OR AT THE HEARING.