Issue By: Trevor W. Montgomery

Ruth Stueve, et al. v. Buchalter Nemer, et al.

Court of Appeal, Fourth Appellate District January 18, 2017

Under California law, an action must be “brought to trial” within five years of the filing of a civil complaint. If the time period is not tolled by statute, the case must be dismissed. California cases have held that an action is brought to trial when the jury is both empaneled and sworn. The issue in this case was whether the “empaneling” and “swearing in” occurs at the time the entire jury panel presents for jury selection and voir dire or after when the actual jurors for the case are sworn in.

On September 24, 2010, plaintiffs, the heirs of the Alta Dena Dairy fortune, filed a civil complaint against defendants who are several attorneys and law firms. On Monday, September 21, 2015, nearly five years later, the trial court began the jury selection process in a large courtroom reserved for that purpose. Two days after that, on September 23, 2015, voir dire was continued due to the unavailability of the courtroom until the following Monday, September 28. When the parties returned on Monday, defendants filed a motion to dismiss the case on the grounds that the action had not been brought to trial within five years of the filing of the initial complaint. The trial court excused the jurors, ordered further briefing, and conducted hearings on the motion.

On October 9, 2015, the trial court entered an order of dismissal. The court relied largely on the Supreme Court decision in Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, stating in part, “Bruns is a California Supreme Court case from 2011 and states in no uncertain terms, ‘In an action tried to a jury, the action is brought to trial when the jury is empaneled and sworn.’” The court found that the five-year time period had not been statutorily tolled.

The Court of Appeal took up the issue and analyzed it as a pure question of law: is a jury “empaneled and sworn” when a panel of prospective jurors assembles in a courtroom for voir dire and is sworn to tell the truth, or does that occur later when the actual trial jurors are sworn.

The Court began by analyzing the relevant statutory scheme under the Trial Jury Selection and Management Act (the “Act”) codified at California Code of Civil Procedures § 190, et seq. Jurors are selected from a source list, then prospective jurors are summoned to court, from which the jury commissioner randomly selects jury panels to be sent to courtrooms for voir dire. Once a trial jury panel assembles in their assigned courtroom, the court administers an ‘oath of truthfulness.’ Once voir dire is completed a second oath to ‘try the cause’ is administered to the actual trial jurors. Trial jurors are those jurors sworn to try and determine by verdict a question of fact.

The Court then noted that the meaning of ‘empaneled’ was undefined in the Act, but that it generally meant “The act of the clerk of the court in making up the list of jurors who have been selected for the trial of a particular cause. All the steps of ascertaining who shall be the proper jurors to sit in the trial of a particular case up to the final formation.” The word ‘sworn’ was also undefined in the Act, but the Court found it generally means providing an affirmative response to an oath or affirmation.

Lastly, the Court noted that the word ‘panel’ was used consistently throughout the Act to refer exclusively to prospective jurors and not the final trial jurors. The Court also noted that the first oath of truthfulness administered to the panel of prospective jurors fulfilled the requirement that the jury be sworn, even though the trial jury was then “sworn in” again.

The Court held that the jury was empaneled and sworn on September 21, 2015, at the beginning of voir dire. That date occurred within the five years of filing the civil complaint (September 24, 2010.) Thus, the action was, in fact, brought to trial within five years, as required by C.C.P. § 583.310.

The Court confirmed that this decision was consistent with existing case law, then analyzed applicable case law to show this opinion was not contrary to existing precedent. Silcox v. Lang (1989) 78 Cal. 118 held that a jury trial begins when the jury is empaneled. Kadota v. San Francisco (1958) 166 Cal.App.2d 194 held that a case is brought to trial when the parties commence the examination of prospective jurors and the empanelment of the jury. Lastly, Hillard v. A. H. Robbins Co. (1983) 148 Cal.App.3d 374 held that a civil action is brought to trial within the meaning of a five year dismissal statute when the jury trial panel is sworn by the court clerk. The Hillard court reasoned that: “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.” (Id. at p. 390.)

The Court reversed the order dismissing the matter.


This decision makes clear that it is not necessary to have actually picked the jury for trial of the matter to avoid the 5-year statute, as long as the initial potential panel of jurors is seated and sworn in for voir dire.

For a copy of the complete decision, see: Ruth Stueve, et al. v. Buchalter Nemer, et al.