Wilshire Bundy Corp. v. Auerbach

In Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, the plaintiffs appealed the dismissal of their action contending 315 days should have been excluded from the five-year period because the case had been improperly removed from the civil active list by the court clerk for that length of time. (Id. at p. 1286.) The court rejected that contention, holding that "the diligent plaintiff has no need for a tolling period. An available remedy is at hand to correct calendaring or other errors made by the court or its clerk in the scheduling of a case. Upon timely discovery of the problem, a motion to specially set may be made and the court is bound to grant it. . In short, this is a matter that is within the reasonable control of the diligent plaintiff and is thus avoidable." (Id. at p. 1289.) To hold otherwise would undermine the rule requiring the plaintiff to diligently monitor his case. (Ibid.)