Sherburne v. County of San Bernadino

Filed 7/17/06 Sherburne v. County of San Bernadino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kurt J. Lewin, Judge. (Retired Judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Trudy Ann Sherburne, in pro. per., for Plaintiff and Appellant.

Wagner & Pelayes and Risa Christensen, Dennis E. Wagner and Matthew J. Marnell for Defendant and Respondent.

Plaintiff and appellant Trudy Sherburne appeals from an order dismissing her action against defendant and respondent County of San Bernardino (the County) for failure to bring the action to trial within the mandatory five-year period, pursuant to Code of Civil Procedure section 583.310.^[1] We affirm.

PROCEDURAL BACKGROUND

On August 2, 1999, plaintiff, in pro. per., filed a complaint against the County and the County sheriff (as an individual) for damages sustained when County officials searched her property multiple times, after initially observing military weapons containers in the yard. Plaintiff alleged causes of action for unlawful search and seizure, intentional torts, negligence, fraud, deceit, and defamation.^[2] She filed the complaint in the superior court in Victorville but did not serve the defendants. Plaintiff filed and served a first amended complaint on January 26, 2000, which added another individual defendant. Defendants filed an answer on March 8, 2000.

The case was ordered to arbitration. The arbitration hearing was held on January 22, 2001. The arbitration proceeding produced a defense award, and plaintiff filed a request for trial de novo on March 1, 2001. The trial court set the case for a mandatory settlement conference on July 27, 2001, and set a trial date of August 13, 2001. Plaintiff wanted more time to complete discovery and to file an amended complaint. Thus, the court vacated the trial date. The mandatory settlement conference was continued twice, and was held on March 22, 2002. No settlement was reached, and the court set the trial for October 15, 2002.

Plaintiff then filed an affidavit of prejudice against Judge John Tomberlin. The case was reassigned to Judge John Vander Feer and transferred to the court in Barstow.

On September 11, 2002, with the trial set for October 15, 2002, plaintiff filed a motion for leave to file an amended complaint. On October 3, 2002, plaintiff withdrew the motion.

On October 11, 2002, plaintiff informed the court that she was not ready for trial because she had not completed discovery. The court suggested a trial date of November 4, 2002, but plaintiff requested more time to file an amended complaint. Defendant did not object to giving plaintiff more time, so the court set a trial date for December 10, 2002.

On October 18, 2002, defendant filed a motion for judgment on the pleadings. The court denied the motion without prejudice on November 20, 2002.

On December 6, 2002, the court vacated the trial date of December 10, 2002. On December 10, 2002, defendant filed another motion for judgment on the pleadings; the court determined that the motion would be heard as a motion in limine at the time of trial. On December 12, 2002, the parties were informed that the court was unavailable for trial, so the matter was transferred back to the Victorville court, to be heard by Judge Robert Law. The trial was set for January 13, 2003.

On January 10, 2003, plaintiff informed the court that she may file an affidavit of prejudice against Judge Law. The trial date of January 13, 2003, was vacated. The court continued the matter to January 13, 2003, and then until January 16, 2003.

On January 16, 2003, the court advised the parties of its ruling on the motion for judgment on the pleadings; the only cause of action that survived was a claim for civil rights violations. At a status conference on January 27, 2003, the court set the trial for September 8, 2003.

On June 4, 2003, defendant filed a motion for summary judgment/summary adjudication. On August 7, 2003, the court granted summary adjudication on two of the causes of action and as to the two individual defendants.

On August 18, 2003, plaintiff filed a motion for leave to file a second amended complaint. At a hearing on August 28, 2003, the court advised plaintiff that if it allowed her to amend, she would have to start the legal process of having the second amended complaint attacked and that the September 8, 2003, trial date would have to be vacated. Plaintiff chose to amend her complaint, and the court vacated the trial date. The second amended complaint was filed that day; it named the County as the only defendant.

On September 25, 2003, defendant filed a demurrer to the second amended complaint. On November 24, 2003, the court sustained the demurrer as to four causes of action without leave to amend. Two causes of action remained.

On January 9, 2004, plaintiff filed a motion to reset the trial. The court granted the motion and set the trial date for August 23, 2004.

On March 19, 2004, the August 23 trial date was vacated and the trial was reset for June 1, 2004.

At the trial readiness conference on May 28, 2004, defendant's counsel informed the court that he just started another trial and would be unavailable until July 9, 2004. The court ordered the case trailed until July 9, 2004. The court asked the parties when the five-year statute of limitations ran on the case, and plaintiff responded, â€