Private Mediations Do Not Toll The Five-Year Prosecution Statute

By: Zachary P. Marks
April 24, 2016

If you thought private mediation could toll the five-year period for case prosecution – think again. In a recent decision handed down by the Second District Court of Appeal, the court unequivocally held that voluntary, private mediations do not toll the five-year period before dismissal for failure to bring an action to trial.

California Code of Civil Procedure section 583.310 sets forth the applicable rule: “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” Section 1775.7(b) clarifies this rule, stating that the five-year period can be tolled if it is “submitted to mediation” within the final six months of the five-year period. However, the Code is silent with respect to the effect of tolling on public versus private mediations.

The Court of Appeal addressed this issue in its recent decision entitled Castillo v. DHL Express (USA) (2015) 243 Cal.App.4th 1186. Castillo was an employment class action brought by truck drivers against their employers. Plaintiffs argued that the case was “submitted to mediation” within the meaning of Section 1775.7(b) because the court’s Case Management Order reflected the fact that the parties agreed to pursue mediation. Conversely, defendants argued that the Case Management Statement clearly stated that the parties voluntarily agreed to a private mediation, not a court-ordered mediation.

In finding for the defendants, the Court of Appeal concluded that Section 1775.7 (b) automatically tolls the five-year statutory time to prosecute an action only if the parties participate in a mediation conducted through a court-annexed mediation program. The court reasoned that because the legislative intent of Section 1775 was to focus on court-ordered mediation as an alternative to judicial arbitration, private mediations do not apply to the tolling provision.

The Castillo case is certain to raise concerns with the plaintiffs’ bar. In contrast, as defense attorneys engage in eleventh-hour mediations, it is important to consider the effect of public versus private mediations on potential motions to dismiss a case for failure to diligently prosecute.

About the author

Zachary P. Marks

Mr. Marks is an Associate at Chapman Glucksman Dean Roeb & Barger.

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