While Judge Shelleyanne W.L. Chang did not issue a final ruling on the litigation between the Howard Jarvis Taxpayers Association and Cal Fire regarding the legality of the state fire protection fee, the tentative ruling at the Dec. 8 hearing supported the state’s argument that HJTA took too long moving the case forward.
“CALFIRE’s motion to dismiss is GRANTED. The hearing on Plaintiffs motion for summary judgment is VACATED,” was the conclusion in Judge Chang’s tentative ruling.
HJTA obviously opposed the Cal Fire motion to dismiss the case. In its response to the court, HJTA wrote that the Cal Fire motion should be denied because this was a “special proceeding” under the California Code of Civil Procedure and the case was “complex.”
The HJTA objection basically argued that the five-year rule for delay does not apply to this litigation. HJTA claimed that the litigation was a writ proceeding, which is classified as special.
Further HJTA argued that “… Cal Fire never sought any special final judgment to render its demurrer appealable.”
Cal Fire replied to the HJTA arguments with a simple, “The plaintiffs do not dispute that they failed to bring this action to trial within five years. The plaintiff’s burden is therefore to show that bringing the action to trial within five years was ‘impossible, impracticable, or futile.’”
In her tentative ruling, Judge Chang stated, “it is proper to apply the five-year dismissal rule …” She noted that case had never been extended, although HJTA could have made a request.
“Indeed, the facts show that Plaintiff had ample time to litigate this proceeding and bring this action to trial. In particular, until these motions, the last significant action in this litigation occurred over a year and a half ago, in January 2016, when the court approved notice to the class,” Judge Change wrote in her reason for the dismissal.
“Despite this significant delay. Plaintiff does not explain why it could not have brought the matter to trial before October 4, 2017 … Thus, Plaintiff [HJTA] has not demonstrated that it was impossible, impracticable or futile to bring this action to trial within five years.”
Cal Fire was ordered to prepare an order for the court’s signature to dismiss the case.
