Allison Armour vs Bruce Tamao Hayashi et al

Case Number

19CV03456

Case Type

Hearing Date / Time

Fri, 01/09/2026 - 10:00

Nature of Proceedings

Motion to Dismiss

Tentative Ruling

For all the reasons stated herein, defendants Bruce Tamao Hayashi and Janice Hayashi’s motion to dismiss is denied.

Background:

On July 2, 2019, plaintiff Allison Armour initiated this action by filing a complaint against defendants Bruce Tamao Hayashi and Janice Hayashi asserting six causes of action for (1) declaratory relief, (2) assault, (3) intentional infliction of emotional distress, (4) private nuisance, (5) spite fence, and (6) injunctive relief.

On November 20, 2019, plaintiff filed the operative first amended complaint (FAC) against defendants.

On November 2, 2020, defendants filed the operative second amended cross-complaint (SACC) against plaintiff.

The parties are neighbors and share a property line, but their respective homes are at different elevations. (FAC, ¶¶ 1-2) Plaintiff alleges that defendants planted trees and installed large water tanks with the express purpose of blocking her views and took other actions to harass or threaten her. (FAC, ¶¶ 14-34.) Defendants allege that plaintiff unlawfully entered their property and cut down or partially destroyed their trees and underwood, among other alleged acts. (SACC, ¶¶ 6-9.)

On June 10, 2024, the court approved the parties’ written stipulation to “set the trial date such that the trial could take place within the following date ranges: November 1-14, 2024 or the earliest date after January 20, 2025 that the Court’s calendar permits.” (Order on Stip. to Cont. Trial Dates, June 10, 2024, ¶ 5.) The court set trial for February 28, 2025. (Id. at p. 3, ll. 1-9)

On January 7, 2025, counsel for plaintiff filed a notice of conditional settlement of the entire action indicating a request for dismissal would be filed no later than May 31, 2025. The conditional elements of settlement were apparently not executed.

On July 8, 2025, the court issued an order to show cause (OSC) regarding dismissal of the action and set the OSC for hearing on August 22, 2025. (OSC, July 8, 2025.)

On July 8, 2025, the parties requested by stipulation that the court schedule a case management conference (CMC). The court granted their request. (Minute Order, July 10, 2025.)

On August 8, 2025, the court held a CMC and set a mandatory settlement conference (MSC) on March 13, 2026, and set a trial confirmation conference (TCC) on March 27, 2026. (Minute Order, Aug. 8, 2025.)

On November 9, 2025, defendants filed this motion to dismiss this action because trial has not occurred within the five-year deadline pursuant to Code of Civil Procedure section 583.310. This motion is opposed.

On December 3, 2025, the court advanced the hearing on this motion to this hearing of January 9, 2026. (Minute Order, Dec. 3, 2025.)

Analysis:

“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.)

“The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means: [¶] (a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal. [¶] (b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made.” (Code Civ. Proc., § 583.330.)

When a defendant agrees to a trial date after the applicable deadline, “there [is] no need for the defendant expressly to waive the benefit of section 583.310 because an agreement to extend trial to a specific date beyond the five-year period necessarily waived, until that date, the right to dismissal under the five-year statute.” (Nunn v. JPMorgan Chase Bank, N.A. (2021) 64 Cal.App.5th 346, 355 (Nunn).) An “interchange [before the court] constitutes an oral agreement within the meaning of section 583.330.… The parties expressed their agreement to extend the trial deadline to this date when counsel for both sides ‘indicated’ on the record that they had ‘no objection’ to [the new] trial date…. By explicitly agreeing to the [new] trial date, the parties implicitly agreed to extend the statutory period to [the new trial date].” (Id. at pp. 356-357.)

Here, this action was commenced on July 2, 2019. (Complaint.) On August 8, 2025, the court held a CMC and set an MSC for March 13, 2026, and a TCC for March 27, 2026. (Minute Order, Aug. 8, 2025.) The TCC is considered for all purposes the first day of trial in this court.

The certified transcript for the August 8 CMC indicates that counsel for all parties agreed to these new dates. (Declaration of Aaron L. Arndt (Arndt Decl.), Ex. 4 at p. 4, l. 13 - p. 5, l. 25.) Counsel for plaintiff indicated, “[t]hose dates work for Plaintiff.” (Id. at p. 5., l. 10.) Counsel for defendants indicated, “those should be fine.” (Id. at p. 5, l. 16.) The court set these dates, there were no objections, and the parties waived notice. (Id. at p. 4, l. 13 - p. 5, l. 25.) The court’s minutes are in accord with the transcript. (Minute Order, August 8, 2025.) Defendants’ CMC statement, also in accord, indicated in part, “[t]he parties will now need to commence full discovery in earnest, so a trial setting no earlier than March 2026 will be needed.” (Def. CMC Stat., July 29, 2025, ¶ 18.)

Defendants argue in reply that Taylor v. Shultz (1978) 78 Cal.App.3d 192, 195 (Taylor), is controlling. However, in Taylor, “[t]he sole issue … [was] whether the presence alone of all counsel at a pre-trial or trial setting conference waives the requirement of a written stipulation (or oral stipulation recorded in the minutes) when the court sets a trial date after expiration of the five-year period ….” (Ibid.) Here, there is substantially more evidence than the mere presence of counsel. Moreover, Taylor was interpreting a prior statute, Code of Civil Procedure section 583, which has since been repealed and replaced in part by section 583.330. (See Preston v. Kaiser Foundation Hospitals (1981) 126 Cal.App.3d 402, 405, fn. 1 [quoting prior section 583, subs. (a) & (b)].) Cases “decided before the [current] statute allowed parties to extend a trial deadline by oral agreement … [do not] address what formalities are necessary to prove that such an agreement was made.” (Nunn, supra, 64 Cal.App.5th at p. 359.)

The parties agreed for an MSC to occur on March 13, 2026, and for a TCC (which is the first day of trial) to occur on March 27, 2026, as reflected in the transcript of the August 8 CMC and the court’s minutes. This exchange between counsel at the August 8 CMC constitutes an oral agreement within the meaning of Code of Civil Procedure section 583.330, subdivision (b). (Nunn, supra, 64 Cal.App.5th at pp. 354-357.) For all these reasons, the court will deny defendants’ motion to dismiss.