Wilson v. Johnson

Filed 9/22/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE NICOLETTE BIRDSONG B329690 WILSON, (Los Angeles County Plaintiff and Appellant, Super. Ct. No. BC676306) v. DAVID WAYNE JOHNSON et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Cary H. Nishimoto, Judge. Reversed. Alexander Morrison + Fehr, Tracy L. Fehr and Jacob Ostermann; Ivie McNeill Wyatt Purcell & Diggs, Byron M. Purcell and Julio Navarro for Plaintiff and Appellant. Horvitz & Levy, Robert H. Wright and Marshall Grasty; Haight Brown & Bonesteel, Peter A. Dubrawski, Patrick F. McIntyre and Austin Smith for Defendants and Respondents. _______________________________  This appeal concerns whether this action was brought to trial within the meaning of Code of Civil Procedure sections 583.310 and 583.360, which require an action’s dismissal if the action is not brought to trial within five years after it is commenced against the defendant.1 “In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723 (Bruns).) We agree with the Court of Appeal’s conclusion in Stueve v. Nemer (2017) 7 Cal.App.5th 746, 750 (Stueve), that a jury is impaneled and sworn—thereby bringing the action to trial—when a panel of prospective jurors assembles in a courtroom for voir dire and is sworn to truthfully answer questions concerning the prospective jurors’ qualifications and ability to serve as jurors pursuant to section 232, subdivision (a). Here, within the five-year deadline (extended by six months by a COVID-19 emergency rule), several panels of prospective jurors assembled in the trial judge’s courtroom and swore the oath required by section 232, subdivision (a). The trial court examined the sworn panels about hardship excusals over several court days, during which the deadline expired. The trial court then dismissed the action pursuant to section 583.360. Consistent with Stueve, we conclude this action was brought to trial within the statutory deadline when a panel of prospective jurors assembled in a courtroom for voir dire (at which point the jury was impaneled) and swore the oath that section 232, subdivision (a), required the trial court to administer prior to voir dire examination (at which point the jury was sworn). That the parties did not commence their 1 Undesignated statutory references are to the Code of Civil Procedure. 2 examination does not alter our conclusion the action was brought to trial within the deadline. Accordingly, we reverse the judgment of dismissal. BACKGROUND On September 19, 2017, Plaintiff and Appellant, Nicolette Birdsong Wilson, filed the instant personal injury action against Defendants and Respondents, David Wayne Johnson and Combined Transport, Inc. Because she filed the action before April 6, 2020, “the time in which to bring the action to trial [wa]s extended by six months for a total time of five years and six months.” (Cal. Rules of Court, appen. I, emergency rule 10(a); see also § 583.310.) The parties agree that unless section 583.340 tolled the deadline (an issue we need not address), the last day to bring the action to trial was March 20, 2023. On February 16, 2023 (more than a month before the Mar. 20 deadline), the parties announced they were ready for trial. Due to courtroom unavailability and Wilson’s exercise of a peremptory challenge to a judicial officer, the trial court continued trial to March 7. On that date, the trial court expressed a view that “swear[ing] a panel of 50 [prospective] jurors to start the jury selection” would bring the action to trial for purposes of meeting the five-years-and-six-months deadline. Wilson agreed that “swear[ing] in the panel” would suffice. Respondents voiced no disagreement at that time. Over the next several court days, the trial court heard motions in limine and the parties attended court-ordered mandatory settlement conferences. On March 16, 2023 (four days before the Mar. 20 deadline), a panel of prospective jurors assembled in the trial 3 judge’s courtroom. The clerk administered the following oath pursuant to former section 232, subdivision (a): “Do you, and each of you, understand and agree that you will accurately and truthfully answer under . . . penalty of perjury all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court, and that failure to do so may subject you to criminal prosecution? If you understand and agree, please say, ‘I do.’ ”2 The prospective jurors responded, “I do.” The trial court asked the sworn prospective jurors if they could serve throughout the trial (then estimated to last 42 days) without undue hardship, individually examined those 2 When the clerk administered the oath, former section 232, subdivision (a), provided: “Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.” Effective in January 2026, the Legislature made non- substantive revisions to the quoted language. (Stats. 2025, ch. 29, § 1.) We agree with Respondents that the revisions are immaterial to the issues presented by this appeal. 4 prospective jurors who claimed hardship, and excused those who demonstrated hardship to the court’s satisfaction.3 Later that day and over the course of the next two court days (Mar. 17 & 20), the trial court repeated the same process of examination about hardship excusals with additional panels of prospective jurors who swore to truthfully answer questions about their qualifications and ability to serve as jurors pursuant to former section 232, subdivision (a). The trial court ordered all non-excused prospective jurors to return on March 22 (after the Mar. 20 deadline). On March 21, Respondents moved to dismiss the action under section 583.360 and applied to specially set a hearing on the motion. The trial court set the motion for hearing the next morning, and ordered Wilson to file her opposition before the hearing.4 The court examined additional sworn panels of prospective jurors about hardship excusals. 3 “An eligible person may be excused from jury service only for undue hardship, upon themselves or upon the public, as defined by the Judicial Council.” (§ 204, subd. (b).) The jury commissioner conducts a “preliminary screening of hardship claims received in response to a general jury summons . . . .” (People v. Tate (2010) 49 Cal.4th 635, 664-665 (Tate); see also § 218.) “[T]he trial court itself may subsequently . . . resolve hardship issues in the course of jury selection in a specific case.” (Tate, at p. 665, italics omitted.) 4 Because we reverse the judgment for other reasons, we need not address Wilson’s argument that the trial court violated her due process rights by ordering her to file her opposition to Respondents’ motion to dismiss by the morning after the motion was filed. 5  On March 22 (the day the trial court had directed all non- excused prospective jurors to return), the prospective jurors completed a questionnaire proposed by Wilson’s counsel. The trial court commenced the hearing on Respondents’ motion to dismiss and continued it to the next day. On March 23, after further hearing, the trial court granted Respondents’ motion to dismiss. The court concluded that the action was not brought to trial by the March 20 deadline because the prospective jurors were not “ready for voir dire to commence” until March 22, after the trial court had completed examining all sworn panels about hardship excusals and had deemed the number of non-excused prospective jurors “sufficiently large for purposes of commencing voir dire by the parties.” The court further concluded that section 583.340 did not toll the deadline. The trial court signed and filed an order dismissing the action with prejudice pursuant to section 583.360, which is an appealable judgment. (§ 581d.) Wilson filed a timely notice of appeal. DISCUSSION A. This action was brought to trial within the statutory deadline, when a jury panel assembled in a courtroom for voir dire and swore the oath required by section 232, subdivision (a). “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.” (§ 583.360, subd. (a).) “An action shall be brought to trial within five years after the action is commenced against the defendant.” (§ 583.310.) “Notwithstanding any other law, 6 including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.” (Cal. Rules of Court, appen. I, emergency rule 10(a).) As noted, the parties agree that absent tolling of the five- years-and-six-months deadline, the last day to bring the action to trial was March 20, 2023. The parties dispute whether the action was “brought to trial” by that date within the meaning of sections 583.310 and 583.360. We review that question de novo.5 (Stueve, supra, 7 Cal.App.5th at p. 750.) We find Stueve instructive. In Stueve, three days before the five-year deadline expired, a panel of prospective jurors assembled in a courtroom and swore the oath required by section 232, subdivision (a). (Stueve, supra, 7 Cal.App.5th at pp. 748, 751.) The same day, the parties gave “ ‘mini-opening’ statements” and “voir dire began.” (Id. at p. 749.) Voir dire continued until after the deadline expired. (Ibid.) The trial court granted the defendants’ motion to dismiss under sections 583.310 and 583.360, concluding that an action tried to a jury is 5 Citing Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 and footnote 8, Respondents suggest we should review the trial court’s ruling for an abuse of discretion. Gaines applied an abuse of discretion standard to the issue of whether section 583.340, subdivision (c), tolled the five-year deadline, which issue turns on factual matters that trial courts are best suited to evaluate in the first instance. (Gaines, at p. 1100 & fn. 8.) As noted, we need not address that issue. 7 not brought to trial until the trial jurors are sworn pursuant to section 232, subdivision (b).6 (Stueve, at p. 750.) The Stueve court reversed the judgment of dismissal. (Stueve, supra, 7 Cal.App.5th at p. 748.) The court observed that under Supreme Court precedent, “ ‘[i]n an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn.’ ” (Ibid., quoting Bruns, supra, 51 Cal.4th at p. 723, italics added by Stueve.)7 Stueve held that a jury is impaneled and sworn—thereby bringing the action to trial—“when a panel 6 As amended effective in January 2026, section 232 provides: “(a) Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgment and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do you understand and agree, under penalty of perjury, that you will accurately and truthfully answer all questions about your qualifications and ability to serve as a juror in this case, and that failure to do so may result in criminal prosecution?’ [¶] (b) As soon as the selection of the trial jury is completed, the following acknowledgment and agreement shall be obtained from the trial jurors, which shall be acknowledged by the statement ‘I do’: [¶] ‘Do you understand and agree that you will carefully consider the case being heard in this court, and that you will reach a verdict based only on the evidence presented to you and the instructions on the law given by the court?’ ” 7 Bruns considered under what circumstances subdivisions (b) and (c) of section 583.340 toll the deadline to bring an action to trial. (Bruns, supra, 51 Cal.4th at pp. 721-722.) It stated that an action is brought to trial when the jury is impaneled and sworn (id. at p. 723), but did not address when the jury is impaneled and sworn. 8 of prospective jurors assembles in a courtroom for voir dire and is sworn to tell the truth” pursuant to section 232, subdivision (a). (Stueve, at p. 750; see also id. at pp. 751-752.) The Stueve court partially based its conclusion on its interpretation of the Trial Jury Selection and Management Act (§ 190 et seq.; the Act), which consistently uses the word “panel” to refer to a group of prospective jurors assigned to a courtroom for voir dire, and which requires the panel to be sworn pursuant to section 232, subdivision (a), prior to voir dire examination. (Stueve, supra, 7 Cal.App.5th at pp. 750-752.) The court also partially based its conclusion on judicial decisions that had addressed when a civil action tried to a jury is brought to trial, including Kadota v. City and County of San Francisco (1958) 166 Cal.App.2d 194 (Kadota), Hartman v. Santamarina (1982) 30 Cal.3d 762 (Hartman), and Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374 (Hilliard). (Stueve, at pp. 752-755.) We will discuss those cases in the next section of this opinion. We agree with Stueve’s conclusion that a jury is impaneled and sworn—thereby bringing the action to trial—“when a panel of prospective jurors assembles in a courtroom for voir dire and is sworn to tell the truth” pursuant to section 232, subdivision (a). (Stueve, supra, 7 Cal.App.5th at p. 750.) Applying that principle here, we conclude the action was brought to trial on March 16, 2023, when a panel of prospective jurors assigned to the trial judge’s courtroom for voir dire assembled there and swore the aforementioned oath. Because the action was brought to trial within the March 20, 2023 deadline, we conclude the trial court erred by dismissing the action pursuant to section 583.360. Respondents argue the jury was not impaneled within the deadline because the panels that assembled in the trial judge’s 9 courtroom on or before March 20, 2023, did not assemble “ ‘for the purposes of voir dire.’ ” (Quoting Stueve, supra, 7 Cal.App.5th at p. 752, italics added by Respondents.) We disagree. The Act authorizes a jury commissioner to assign and send a jury panel to a courtroom for voir dire. (§ 194, subd. (q) [“ ‘Trial jury panel’ means a group of prospective jurors assigned to a courtroom for the purpose of voir dire” (italics added)]; § 198, subd. (a) [“Random selection shall be utilized in creating master and qualified juror lists, commencing with selection from source lists, and continuing through selection of prospective jurors for voir dire” (italics added)], § 219, subd. (a) [“the jury commissioner shall randomly select jurors for jury panels to be sent to courtrooms for voir dire” (italics added)].) After the jury commissioner does so, section 232, subdivision (a), requires “the panel assigned for voir dire” to swear an oath to truthfully answer questions concerning the prospective jurors’ qualifications and ability to serve as jurors. (Italics added.) Here, within the statutory deadline to bring the action to trial, several panels swore the oath required by section 232, subdivision (a), indicating the panels had been assigned “for voir dire.” That the trial court examined the sworn panels about hardship excusals is consistent with the panels’ having assembled for voir dire. Indeed, the Standards of Judicial Administration provide that in lengthy civil trials, a trial court’s voir dire examination of prospective jurors should include inquiry about hardship excusals. (Cal. Stds. Jud. Admin., § 3.25(c)(3); see also id., § 4.30(b)(2) [similar for criminal trials]; cf. People v. Holt (1997) 15 Cal.4th 619, 661 [“Trial court judges should closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards [for 10 Judicial Administration] to ensure that all appropriate areas of inquiry are covered in an appropriate manner”].) We conclude that as in Stueve, “[t]he jury was ‘impaneled’ when [a] panel of prospective jurors assembled in the courtroom for voir dire . . . [and] ‘sworn’ when the prospective jurors took an oath to respond truthfully.” (Stueve, supra, 7 Cal.App.5th at p. 748.) In short, we conclude that the jury was impaneled and sworn— thereby bringing the action to trial—on March 16, 2023, within the March 20, 2023 deadline to bring the action to trial. The trial court therefore erred by dismissing the action pursuant to section 583.360. B. That the parties did not commence their examination does not alter our conclusion the action was brought to trial within the deadline. Respondents argue the action was not brought to trial within the March 20, 2023 deadline, because the parties did not commence examining the sworn panels of prospective jurors by that date. Respondents argue that fact distinguishes this case from Stueve, in which the parties commenced their examination within the deadline to bring the action to trial (on the same day a jury panel first assembled in a courtroom and was sworn). (Stueve, supra, 7 Cal.App.5th at p. 749.) As we read Stueve, the parties’ examining the sworn panels was immaterial to the appellate court’s conclusion that the action was brought to trial within the statutory deadline. Stueve concluded that an action tried to a jury is brought to trial when a jury panel assembles in a courtroom for voir dire (which necessarily precedes the commencement of the parties’ examination) and the panel swears the oath pursuant to section 232, subdivision (a), which expressly requires the court to 11 administer the oath prior to voir dire examination. (Stueve, supra, 7 Cal.App.5th at pp. 748, 750-752; see also 7 Witkin, Cal. Procedure (6th ed. 2026) Trial, § 134, p. 12 [describing administration of oath to jury panel pursuant to section 232, subdivision (a), and stating “[i]t is at this point in the proceedings that a jury trial is said to have begun” (citing Stueve, at p. 750)].) That conclusion is inconsistent with Respondents’ position that even after a panel assembles for voir dire and swears the oath, the action is brought to trial only when the parties begin examining a sworn panel. Respondents argue that three cases on which Stueve relied—Kadota, Hartman, and Hilliard—established that an action tried to a jury is not brought to trial until the parties commence their voir dire examination. Stueve, however, appeared to read those cases differently. (See Stueve, supra, 7 Cal.App.5th at p. 753 [“a civil action is brought to trial within the meaning of the five-year dismissal statute when the jury trial panel . . . is sworn by the court clerk” (citing Hilliard, supra, 148 Cal.App.3d 374)]; Stueve, at p. 755 [“it does not matter exactly which oath [under section 232, subdivisions (a) and (b)] was administered [in Hilliard and Hartman] because in both cases each panel of prospective jurors was ‘sworn,’ and that is all that was required [to bring the action to trial] after the prospective jurors had been ‘impaneled’ ” (italics added)].) For the reasons explained below, we conclude Kadota, Hartman, and Hilliard do not require a departure from Stueve. In Kadota, “a jury was impaneled and sworn” within the five-year deadline to bring the action to trial under former 12 section 583, subdivision (b) (§ 583.310’s predecessor).8 (Kadota, supra, 166 Cal.App.2d at p. 194.) The trial court continued trial to a date after the deadline expired (to accommodate plaintiff’s counsel’s illness), then granted the defendant’s motion to dismiss. (Id. at pp. 194-195.) In framing the issue on appeal, the Kadota court noted that “the question ha[d] apparently never been presented whether under section 583, where the case is set for trial before a jury, the case is ‘brought to trial’ when the parties commence the examination of prospective jurors and the impanelment of the jury.” (Id. at p. 195, italics added.) The court reversed the judgment of dismissal, concluding that the action was brought to trial within the five-year deadline. (Id. at p. 196.) The court reasoned that in using the language “ ‘brought to trial’ ” in former section 583, subdivision (b), the Legislature was presumptively aware of the Supreme Court’s determination in Silcox v. Lang (1889) 78 Cal. 118 (Silcox) that “the impanelment of the jury is a part of the trial.”9 (Kadota, at p. 195.) 8 “[F]ormer section 583 . . . was repealed in 1984 and replaced by section 583.310 et seq.” (Munoz v. City of Tracy (2015) 238 Cal.App.4th 354, 360.) 9 In Silcox, the appellants argued that the trial court’s denial of their peremptory challenge to a prospective juror was an irregularity in the proceedings that warranted a new trial. (Silcox, supra, 78 Cal. at pp. 120-121, 124.) The Supreme Court concluded that the challenged ruling was not an irregularity but instead was an error in law occurring at the trial (which conclusion precluded the appellants’ reliance on affidavits). (Id. at pp. 123-125; see also §§ 657, subds. (1), (7), 658.) The court reasoned: “The impaneling of a jury is a part of the trial, within 13  In Hartman, within the five-year deadline to bring the action to trial (as extended by stipulation), the trial court agreed to plaintiff’s counsel’s suggestion that the parties select a jury “to avoid the impact of the five-year statute” and then continue the trial to a time when plaintiff’s counsel would no longer be engaged in another trial. (Hartman, supra, 30 Cal.3d at p. 764.) “Twelve prospective jurors were put into the box, both sides passed for cause, the jury was sworn, and plaintiff moved for a continuance which was granted over defendant’s objections” (the opinion did not address whether the parties examined the prospective jurors before passing for cause). (Ibid.) The trial court immediately discharged the jury on its own motion and, after the five-year deadline expired, granted the defendant’s motion to dismiss the action under former section 583, subdivision (b). (Id. at pp. 764-765.) The Supreme Court reversed the judgment of dismissal, concluding the action was brought to trial on the day the jury was selected. (Hartman, supra, 30 Cal.3d at p. 765.) The court relied on its dictum in a prior case suggesting that in a nonjury trial, the parties could have avoided mandatory dismissal by requesting that the trial court swear in one witness and then continue the trial. (Ibid., citing Miller & Lux, Inc. v. Superior Court (1923) 192 Cal. 333, 342.) In applying that dictum to the jury case before it, the court cited Kadota, supra, 166 Cal.App.2d 194, for the proposition that “[i]f the action is set for jury trial the functional equivalent of swearing a witness is the impanelling of the jury.” (Hartman, at p. 765.) In a footnote, the court observed: “In Kadota the jury was actually impanelled and the meaning of the Code [of Civil Procedure] . . . .” (Silcox, at p. 124.) 14 sworn. The opinion’s statement of the issue, however, implies that a jury case is brought to trial ‘when the parties commence the examination of prospective jurors.’ ” (Hartman, at p. 765, fn. 3, italics added, quoting Kadota, at p. 195.) In Hilliard, “[t]he jury venire panel was sworn and voir dire examination of prospective jurors began” within the five- year deadline. (Hilliard, supra, 148 Cal.App.3d at p. 389, fn. omitted.) The trial court continued jury selection to the day after the deadline expired, when the defendant moved to dismiss under former section 583, subdivision (b), arguing the action had not been brought to trial because the trial jurors had not been sworn. (Hilliard, at p. 389.) This Division held that the trial court correctly denied the motion. (Ibid.) We observed that in Hartman’s aforementioned footnote, the Supreme Court “referred to Kadota without disapproval and noted ‘[t]he [Kadota] opinion’s statement of the issue . . . implies that a jury case is brought to trial “when the parties commence the examination of prospective jurors.” ’ ” (Id. at p. 390, italics added, quoting Hartman, supra, 30 Cal.3d at p. 765, fn. 3.) We concluded: “In view of Kadota and the Supreme Court’s recent citation thereof, we can only conclude that a party can put a jury trial beyond the bar of [former] section 583, subdivision (b) by commencing the jury selection process. A contrary result would invite an unscrupulous party to delay or prolong voir dire examination of prospective jurors until the expiration of the five- year period.” (Hilliard, at p. 390.) Respondents rely on the italicized language above (originating in Kadota and quoted in Hartman and Hilliard) that implied an action is brought to trial when the parties commence the examination of the prospective jurors. We do not 15 read those opinions, however, as holding that even after a panel assembles for voir dire and swears the oath that section 232, subdivision (a), requires a trial court to administer before voir dire examination, the action is brought to trial only when the parties begin examining a sworn panel. In each case, the parties commenced their examination (or passed for cause) on the same day a panel first assembled in a courtroom and was sworn. (See Kadota, supra, 166 Cal.App.2d at p. 194; Hartman, supra, 30 Cal.3d at pp. 764-765; Hilliard, supra, 148 Cal.App.3d at p. 389.) No case considered precisely when the action was brought to trial—i.e., when the assembled panel was sworn or when, on the same day, the parties commenced their examination.10 “ ‘[C]ases are not authority for propositions not considered.’ ” (Sonic- Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160.) Moreover, our conclusion in Hilliard that a party can bring an action to trial “by commencing the jury selection process” (Hilliard, supra, 148 Cal.App.3d at p. 390, italics added) is consistent with Stueve’s conclusion that an action is brought to trial when a jury panel assembles in a courtroom for voir dire and swears the oath pursuant to section 232, subdivision (a), before voir dire examination (Stueve, supra, 7 Cal.App.5th at pp. 748, 750-752). The Act indicates the voir dire process may commence before oral examination. (See § 222.5, subd. (d) 10 Other cases that Respondents cite did not address when an action is brought to trial for purposes of meeting the statutory deadline. (See People v. Romero (2012) 204 Cal.App.4th 704; Tate, supra, 49 Cal.4th 635; People v. Basuta (2001) 94 Cal.App.4th 370; People v. Ervin (2000) 22 Cal.4th 48; In re Hamilton (1999) 20 Cal.4th 1083A; Jones v. Superior Court (1994) 26 Cal.App.4th 92; McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548.) 16 [“Upon the request of a party, the trial judge shall allow a brief opening statement by counsel for each party prior to the commencement of the oral questioning phase of the voir dire process” (italics added)].) The Act does not define precisely when the voir dire process commences. (See § 190 et seq.) We conclude that for purposes of bringing the action to trial within the meaning of sections 583.310 and 583.360, the voir dire process commences when a jury panel assembles in a courtroom for voir dire and swears the oath that the trial court is required to administer before voir dire examination. (§ 232, subd. (a).) Here, those events occurred on March 16, 2023, bringing the action to trial within the March 20, 2023 deadline. DISPOSITION The judgment is reversed. Wilson is entitled to her costs on appeal. CERTIFIED FOR PUBLICATION M. KIM, J. We concur: BENDIX, Acting P. J. WEINGART, J. 17