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Is There a “Gorilla in the Room”?

by Phyllis Pollack
February 2016

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack
In January 2016, the Second Appellate District of the California Court of Appeal decided a case in which the issue was essentially caused by the Legislature’s refusal to fund the judiciary. In Castillo v DHL Express (USA) et al, Case No. B25843, ( B258432 )   plaintiff filed a class action complaint alleging wage and hour violations committed by defendants.  California has a statute –  Code of Civil Procedure Section 583.310–  that requires that all cases be brought to trial within five (5) years of being filed or else be subject to dismissal. However, this five year period is tolled if during the final six (6) months of this five year period (i.e., after the case has been on file for 4 ½ years) the matter is submitted to mediation. (Code of Civil Procedure Section 1775.7.)

As one might suspect, at some point after 4 ½ years had elapsed since the filing of the complaint, the parties participated in private mediation. The matter did not settle. Thereafter, and after the five year period had elapsed, defendants filed a motion to dismiss based on plaintiff’s failure to bring the matter to trial within five years as required by Code of Civil Procedure Section 583.310.  The trial court granted the motion and so plaintiff appealed.

In affirming the judgment of dismissal based on plaintiff’s failure to bring the matter to trial within five years, the appellate court held that Code of Civil Procedure Section 1775.7 “…only applies to mediation conducted in a court-annexed alternative dispute resolution program. “(Id. at 2.) The Court also concluded that the plaintiff “…did not show it was impossible, impracticable or futile to bring the case to trial within five years.” (Id.)  These exceptions- impossibility, impracticability or futility- are listed in Code of Civil Procedure Section583.340(c).

This sounds all well and fine until one mentions that this action was filed in Los Angeles County Superior Court, and   that thanks to the judicial budget crisis, court ordered mediation was simply not available at the time the parties had their case management conference on September 30, 2013. As of the middle of May 2013, the Alternative Dispute Resolution Office of the Los Angeles County Superior Court had closed down completely. It had terminated its panel of mediators and otherwise stopped offering any alternative dispute resolution assistance. In light of the  Superior Court no longer being able to offer free mediations  (and given  the ruling in JELD-WEN , Inc. v. Superior Court (2007) 146 Cal. App. 4th 536 that a court cannot require a party to pay for mediation), the Superior Court could neither “order” the parties to mediation nor offer “court annexed” mediation services. At best, the Court could strongly “recommend”, or “refer” or “suggest” the parties mediate but could not “order” them to do so. It was simply “impossible” for the Court to order the parties to mediation under the given state of affairs.  (Id. at 5-9.)

Nevertheless, the appellate court rejected the contention of plaintiff that the case management order constituted an “order” of the court that the parties mediate. Rather, according to the appellate court’s interpretation, the case management order simply “referred “the parties to private mediation pursuant to the parties’ agreement. The appellate court also rejected the contention that the parties “believed” that they had been ordered to mediate based on a stipulation they had signed in which was stated that the Court had “ordered” the parties to mediation. As appellant did not produce authority for this proposition, the appellate court would not accept it.  (Id.)

It seems to me that there is an “elephant in the room” or at least a gorilla amongst the appellate justices that they are avoiding.  The court  holds that under the statutes- (which have yet to be amended to reflect the courts’ budget crisis) the mediation must be conducted under a court’s mediation program, yet- acknowledges that at the time the parties wanted to mediate- the Los Angeles County Superior Court had no such program and its judges did not have the power or authority to “order” the parties to attend mediation at their own expense. Isn’t this an “impossibility”? At the least, it is a “Catch-22”!  It is definitely honoring form over substance and denying a party its justice due to circumstances well beyond its control. The only rationale I can come up with for this decision is that because of the budget crisis in the courts, this decision means one less class action case for an already overburdened understaffed court system to deal with.

I guess this is all the more reason to try one’s hardest to settle cases through mediation or some other alternative dispute resolution measure!  So much for “fairness”  or “justice”!

… Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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