Category: five-year dismissal

Stueve v. Buchalter Nemer, 1/19/17, 4DCA

Certain members of the Stueve family, heirs to the Alta Dena fortune, sued various attorneys and law firms for claims like fraud.  A panel of 75 prospective jurors were impaneled and sworn a few days before the five year anniversary of the filing the case.  The voir dire process extended past the five year anniversary.  Defendants filed a motion to dismiss under CCP section 583.310 (an “action shall be brought to trial within five years after the action is commenced against the defendant.”). The trial court granted the motion.  Held: Reversed.

In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn.  The word “impaneled” is not defined by statute.  Relying on Black’s Law Dict., the court said it generally means: “The act of the clerk of the court in making up the list of jurors who have been selected for the trial of a particular cause.  All the steps of ascertaining who shall be the proper jurors to sit in the trial of a particular case up to the final formation.” Moreover, the statutes dealing with voir dire refer to prospective jurors as being in a panel (a word that is not used to refer to the jurors who are chosen to try to the case); and prospective jurors must be “sworn,” albeit for purpose of answering voir dire. 

The court’s conclusion had a lot of support.  For example, a Supreme Court decision from the 1800s held that impaneling the jury was part of the trial.  A DCA case from 1958 and one from 1983 held that the impaneling of the venire constitutes bringing the matter to trial for purposes of the five year rule.  In fact, in the 1958 DCA case, in very similar circumstances, the court reversed a trial court’s dismissal based on the five year rule, holding that “brought to trial” includes when the parties commence the examination of prospective jurors and the impanelment of the jury.  

In dismissing the Stueve case, the trial court relied on a 1982 Supreme Court case of Hartman v. Santamarina. In Hartman, there was no voir dire; 12 jurors were simply impaneled and sworn to try the case as part of a charade to beat the five year rule (one of the trial counsel was engaged elsewhere). The SC held that when the actual jurors are impaneled and sworn to try the case, the trial begins.  Here, 4DCA here held that the ruling in Hartman did not exclude the finding, based on more than 100 years of precedent, that trial also begins where the venire are impaneled and sworn for purpose of answering voir dire.