## Facts

- In 1975, Richard Karubian and other plaintiffs filed a California superior court action against Security Pacific National Bank and others for negligent damage to real property.
- The complaint was filed on September 24, 1975, starting the five-year period for bringing the action to trial under Code of Civil Procedure § 583(b) (as then in effect).
- On December 31, 1976, plaintiffs’ counsel filed an at-issue memorandum, placing the case on the Los Angeles Superior Court “civil active list.”
- After the at-issue filing, plaintiffs changed counsel twice: a substitution occurred on February 18, 1977, and another on March 2, 1977.
- Under the court’s procedures, when a case rose high enough on the civil active list, the clerk would send a “notice of eligibility” to file a Certificate of Readiness; filing the certificate would place the matter on the “trial ready list.”
- The court’s calendar timing was such that it generally took at least six months for a case to move from the trial ready list to the start of trial.
- On April 26, 1979 (about 18 months before the five-year deadline), the clerk issued a notice of eligibility; a second notice issued on June 25, 1979.
- Both eligibility notices were mailed to plaintiffs’ initial attorney of record rather than to then-current counsel; the initial attorney did not forward the notices to plaintiffs or their current attorney.
- The initial attorney claimed he telephoned the clerk’s office and told someone he was no longer the attorney of record, but the notices still were not sent to current counsel.
- Because plaintiffs did not file a Certificate of Readiness, the case was removed from the civil active list and remained off that list.
- About 40 days before the five-year period expired, plaintiffs moved under former California Rules of Court, rule 225, to specially set the matter for trial; the trial court denied the motion and denied reconsideration.
- The trial court then dismissed the action under Code of Civil Procedure § 583(b) because it could not be brought to trial within five years, and plaintiffs appealed.

## Issues

1. Whether the clerk’s erroneous mailing of the notice of eligibility to former counsel made it impossible, impracticable, or futile for plaintiffs to bring the case to trial within five years, so as to avoid dismissal under Code of Civil Procedure § 583(b).
2. Whether the trial court abused its discretion in denying plaintiffs’ motion to specially set the case for trial filed roughly 40 days before the five-year deadline.

## Decision

- The Court of Appeal affirmed the judgment of dismissal under Code of Civil Procedure § 583(b).
- The clerk’s failure to mail the notice of eligibility to current counsel did not establish an exception to the five-year rule because plaintiffs did not show that timely trial was prevented despite reasonable diligence.
- The trial court did not abuse its discretion in denying the late motion to specially set the matter for trial.

## Legal Principles

- Code of Civil Procedure § 583(b) required dismissal when an action was not brought to trial within five years after filing, unless a recognized exception applied.
- The “impossible, impracticable, or futile” exception is applied narrowly and requires a showing that, despite reasonable diligence, the plaintiff could not bring the case to trial within five years.
- Plaintiffs bear primary responsibility for monitoring the status of their case and taking steps to move it toward trial; they may not rely on the clerk’s eligibility notice as a substitute for case management.
- A clerk’s mailing error, without sustained and timely efforts by plaintiffs to check the docket and advance the case, does not by itself excuse compliance with the five-year rule.
- A request to specially set trial made near the end of the statutory period, after extended inactivity, supports a trial court’s refusal to grant discretionary relief.

## Conclusion

Karubian held that mandatory dismissal under Code of Civil Procedure § 583(b) was proper where plaintiffs failed to bring their action to trial within five years, even though the clerk mailed eligibility notices to former counsel and the case was removed from the civil active list, because plaintiffs did not show that timely trial was prevented despite reasonable diligence and the trial court acted within its discretion in denying a last-minute special trial setting.


Karubian v. Security Pacific National Bank, 152 Cal. App. 3d 134 (1984)