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San Joaquin County v. Perano2/1/2002
tion submission, but did not argue then, or at any time thereafter, that this was a violation of his client's due process rights.
On April 20, 2001, San Joaquin filed a timely appeal from the court's judgment dismissing the action. (Cal. Rules of Court, rule 2(a).) This is an appealable order. (ยง 904.1, subd. (a).)
DISCUSSION
A. Tolling of the Five-Year Dismissal Statute
San Joaquin argues the court's order dismissing the case on the defendant's motion must be reversed. We agree.
Code of Civil Procedure section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.360, subdivision (a) provides: "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."
There is an exception to this rule. Section 1141.17 provides: "If an action is or remains submitted to arbitration pursuant to this chapter more than four years and six months after the plaintiff has filed the action, then the time beginning on the date four years and six months after the plaintiff has filed the action and ending on the date on which a request for a de novo trial is filed under Section 1141.20 shall not be included in computing the five-year period specified in Section 583.310."
San Joaquin's initial argument is that the trial court violated its due process rights by failing to inform San Joaquin the matter had been removed from submission to arbitration. San Joaquin contends this lack of due process rendered the court's action void and thus, the five-year statute remains tolled even today. San Joaquin failed to make this argument to the trial court. We decline to address this issue for the first time on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
Furthermore, "the reviewing court presumes the judgment of the trial court is correct and indulges all presumptions to support a judgment on matters as to which the record is silent. [Citation.]" (Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) It is the appellant's burden to affirmatively demonstrate error and to provide us with an adequate record. (Ibid.)
Here, San Joaquin has failed to provide this court with a record that establishes its due process claim of error. San Joaquin failed to designate even the most basic relevant documents as part of the appellate record. For instance, San Joaquin did not designate the minute order that supposedly removed this matter from arbitration on August 21, 2000. On this record, we must presume the trial court properly followed its procedures and provided notice of its order. The state of the record is fatal to San Joaquin's due process claim.
We find merit in San Joaquin's alternative argument the removal of the action by the trial court from the arbitration list on August 21, 2000, meant the five-year deadline was tolled for the two and one-half months between June 8, 2000, and August 21, 2000. That time period should have been added on to the December 8, 2000, five-year deadline.
As noted above, section 1141.17, subdivision (b) tolls the five-year statute for the period the matter is and remains submitted to arbitration after the four-year six-month time frame. It is not significant that an arbitration hearing did not occur or that no arbitration award has been rendered. (Niesner v. Kusch (1986) 186 Cal.App.3d 291, 296-297.) Because the matter had been ordered to arbitration and had not been removed from the arbitration list, the
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