Wheeler

Plaintiff/appellant Leo Wheeler (appellant) appeals from a judgment of dismissal for failure to bring an action to trial within five years. (Code Civ. Proc., § 583.360.) 1 He relies upon section 583.340, subdivision (a), which provides for a tolling of the five-year statute for periods during which “the jurisdiction of the court to try the action was suspended”; and, alternatively, upon Moran v. Superior Court (1983) 35 Cal.3d 229 [ 197 Cal.Rptr. 546 , 673 P.2d 216 ], which, in part, held that the time between the filing of an arbitration award and the date the trial de novo is set shall be excluded from calculation of the five years. The particular facts of this case prompt us to reject these contentions; consequently, we affirm.

Facts and Procedural History

On February 11, 1983, appellant was arrested in the City of Santa Monica and charged with an offense of which he subsequently was found not guilty.

*1557 Municipal Court Procedure. On November 2, 1983, in propria persona, appellant filed his initial complaint against defendant/respondent City of Santa Monica (the City). The complaint was filed in Santa Monica Municipal Court and sought damages for injuries…

I dissent from the conclusion of the majority that the municipal court did not lose jurisdiction until the transfer fees set forth in Code of Civil Procedure section 399 were paid.

When this action was commenced, the municipal court had full and complete jurisdiction. It was endowed by law with subject matter jurisdiction and obtained personal jurisdiction over the parties. There can be no valid dispute that once it allowed amendment of the complaint to allege a cause of action for deprivation of plaintiff’s civil rights pursuant to 42 United State Code section 1983, it no longer had jurisdiction over the subject matter. Code of Civil Procedure section 396 1 specifically provides that under these circumstances the court “must suspend all further proceedings therein and transfer the action ... to a court having jurisdiction thereof . . . .” (Italics added.)

This statutory language is consistent with case law acknowledging the fundamental nature of such a jurisdictional defect (Barnick v. Longs Drug Store, Inc. (1988) 203 Cal.App.3d 377, 379 [ 250 Cal.Rptr. 10 ]), and cases holding that where subject matter jurisdiction is lacking the court in which the action was commenced has…

Plaintiff/appellant Leo Wheeler (appellant) appeals from a judgment of dismissal for failure to bring an action to trial within five years. (Code Civ. Proc., § 583.360.) [1] He relies upon section 583.340, subdivision (a), which provides for a tolling of the five-year statute for periods during which "the jurisdiction of the court to try the action was suspended"; and, alternatively, upon Moran v. Superior Court (1983) 35 Cal.3d 229 [ 197 Cal. Rptr. 546 , 673 P.2d 216 ], which, in part, held that the time between the filing of an arbitration award and the date the trial de novo is set shall be excluded from calculation of the five years. The particular facts of this case prompt us to reject these contentions; consequently, we affirm.

On February 11, 1983, appellant was arrested in the City of Santa Monica and charged with an offense of which he subsequently was found not guilty.

Municipal Court Procedure. On November 2, 1983, in propria persona, appellant filed his initial complaint against defendant/respondent City of Santa Monica (the City). The complaint was filed in Santa Monica Municipal Court and sought damages for injuries appellant sustained…