Dumag v. Allen
The trial court dismissed this case pursuant to Code of Civil Procedure sections 583.310 and 583.360 because the plaintiffs failed to bring it to trial within five years of its commencement. The plaintiffs, Restituto and Magdelena Dumag, argued that these statutes did not apply because the trial court had stayed the entire action, for almost its entire pendency, on account of the bankruptcy of defendant Robert E. Allen. Code of Civil Procedure section 583.340, subdivision (b), tolls the five-year period while [p]rosecution or trial of the action was stayed or enjoined. The trial court reasoned that dismissal was still required because the Dumags failed to act diligently to comply with the trial courts instructions to obtain relief from the bankruptcy court, sever Allen, or dismiss him. In doing so, the trial court applied an incorrect legal standard, for there is no lack-of-diligence exception to the tolling provision of Code of Civil Procedure section 583.340, subdivision (b). The defendants also argued to the trial court that the case should be dismissed because Allens debt to the Dumags was discharged in bankruptcy and because the statute of limitations and defects of pleading prevented the Dumags from obtaining judgment against defendants Chris Marx and David Morgan. The trial court did not rule on these claims. Defendants advance them now as alternative bases for affirmance of the dismissal, but as we will explain, these claims are not appropriate for decision in the first instance in this court. Court reverse.
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