Patricia A McNally vs Director, Jean Shiomoto, Department of Motor Vehicles

Case Number

17CV05693

Case Type

Hearing Date / Time

Mon, 11/06/2023 - 10:00

Nature of Proceedings

Motion: Dismiss

Tentative Ruling

Patricia A. McNally vs. Director, Jean Shiomoto, Department of Motor Vehicles 

Case No. 17CV05693

           

Hearing Date: November 6, 2023                                          

HEARING:              Motion For Mandatory Dismissal Or, In The Alternative, For Discretionary Dismissal For Delay

                                                           

ATTORNEYS:        For Petitioner Patricia A. McNally: Self Represented

                             For Respondent Director, Jean Shiomoto, Department of Motor Vehicles: Rob Bonta, Gary S. Balekjian, Catherine E. Wise, Office of the Attorney General of California

TENTATIVE RULING:

For all reasons discussed herein, the motion of respondent for mandatory dismissal of this proceeding is granted. This matter shall be dismissed without prejudice.

Background:

On December 18, 2017, petitioner Patricia A. McNally filed her verified petition for writ of administrative mandamus or mandate, alleging that respondent Jean Shiomoto, who is alleged to be the Director of the Department of Motor Vehicles, improperly and illegally suspended petitioner’s driver’s license without just cause or a legitimate investigation, based on a doctor’s form stating that petitioner had a seizure disorder that made her unsafe to drive. Petitioner effectively requests that the Court set aside the license suspension, expunge petitioner’s records, and issue cease-and-desist orders enjoining respondent from “further acts of abuses of discretion and blatant discrimination against disabled people and individuals who reside in rural areas[.]” (Petition, p. 28, ll. 4-5.)

On August 24, 2023, the Court issued an order and notice of case assignment which Court records reflect was mailed to petitioner at the address identified on the petition. The Court has no record of petitioner having filed a proof of service of the petition on respondent or any other documents in this matter.

On September 13, 2023, respondent filed a motion for mandatory dismissal of the petition under Code of Civil Procedure sections 583.310 and 583.360 on the grounds that this action was not brought to trial within five years and six months after the action was commenced. Alternatively, respondent requests discretionary dismissal of the action under Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(2)(B), and California Rules of Court, rule 3.1340, on the grounds that this action was not brought to trial within two years and that petitioner has delayed the proceeding by failing to diligently prosecute the action.

Petitioner has not filed an opposition to the motion.

Analysis:

Involuntary dismissals for delay in prosecution are governed by Code of Civil Procedure section 583.110 et seq. Under Code of Civil Procedure section 583.310, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.). California Rules of Court, Emergency Rule 10(a), which was adopted by the Judicial Council during the Covid-19 pandemic, extended the time in which to bring an action to trial “by six months for a total time of five years and six months.” (Cal. Rules of Court, appen. I, emergency rule 10(a).) The parties to a civil action may extend the time within which the action must be brought to trial by either written stipulation or by an oral agreement that is made in open court if the agreement is entered in the minutes or a transcript is made. (Code Civ. Proc., § 583.330, subds. (a) & (b).)

In addition, to compute the time within which an action must be brought to trial, the court excludes the time during which “[t]he jurisdiction of the court to try the action was suspended”, “[p]rosecution or trial of the action was stayed or enjoined”, or “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (Code Civ. Proc., § 583.340, subds. (a)-(c).) “A trial within the meaning of [Code of Civil Procedure] section 583.310, according to our Supreme Court, ‘ “ ‘is the determination of an issue of law or fact that brings the action to the stage where final disposition can be made.’ ” ’ [Citation.]” (Rel v. Pacific Bell Mobile Services (2019) 33 Cal.App.5th 882, 889.) “A case is brought to trial if it has been assigned to a department for trial, it is called for trial, the attorneys have answered that they are ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings. [Citation.] In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.)

The dismissal statutes apply to civil actions as that term is defined in Code of Civil Procedure section 583.110, subdivision (a), but do not apply to a “special proceeding except to the extent incorporated by reference in the special proceeding.” (Code Civ. Proc., § 583.120, subd. (a).) “The judicial remedy of mandamus is not a civil action, but a special proceeding of a civil nature….” (Wenzler v. Municipal Court of Pasadena Judicial Dist. (1965) 235 Cal.App.2d 128, 131-132.) Though a petition for administrative mandamus, such as the petition filed here, is a special proceeding, “the court may, by rule or otherwise under inherent authority of the court, apply this chapter to a special proceeding or part of a special proceeding except to the extent such application would be inconsistent with the character of the special proceeding or the statute governing the special proceeding.” (Code Civ. Proc., § 583.120, subd. (b).) “Accordingly, there is no bar preventing the court from applying the dismissal statutes to administrative mandamus proceedings unless, as the statute states, such application would be inconsistent with the character of that proceeding or the statute governing it.” (Binyon v. State of California (1993) 17 Cal.App.4th 952, 955.)

The provisions of Code of Civil Procedure section 583.310 are mandatory requiring the trial court to grant a motion to dismiss an action for failure to bring the matter to trial within statutory time periods unless the plaintiff can establish a statutory “extension, excuse, or exception” or demonstrate that the case falls “within … one of the implied exceptions recognized by decisional law.” (Code Civ. Proc., § 583.360, subd. (b); see also Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 828; King v. State of California (1970) 11 Cal.App.3d 307, 310.)

There is no information to demonstrate that applying the dismissal statutes to the present proceedings would be inconsistent with its nature or governing statutes. For all reasons discussed herein, available information demonstrates that petitioner failed to bring the present action to trial within five years and six months after December 18, 2017, the date the petition was commenced against respondent. Available information also indicates that there exists no applicable statutory extension, excuse, or exception to the statutory requirement that petitioner bring this matter to trial within the time prescribed by statute and no decisional exception to the requirement that the matter be brought to trial within five years and six months after the action was commenced. In addition, Petitioner has not filed an opposition showing grounds for an extension, exception, or excuse with regard to the mandatory statutory time limits applicable here.

For all reasons discussed above, respondent has met its burden to demonstrate that there exist mandatory grounds to dismiss this proceeding for failure to bring the action to trial within five years and six months from the date petitioner commenced this action against respondent. Therefore, the Court will grant the motion and order that this proceeding be dismissed without prejudice.