Once we ranked Trejo v. Johnson & Johnson, 220 Cal. Rptr. 3d 127 (Cal. App. 2017), as the second finest drug or medical system case of 2017, we celebrated the opinion as the primary to rule that federal regulation preempted a design defect declare involving an over-the-counter drug. We didn’t count on to be writing concerning the case once more greater than seven years later. And, we particularly didn’t count on to be reporting that the case—which resulted the primary time round in a $55 million verdict—was dismissed with prejudice as a result of the plaintiff didn’t convey it to retrial on remand earlier than time ran out. That’s precisely what occurred, and the Court docket of Attraction lately affirmed that end in Trejo v. Johnson & Johnson Shopper, Inc., No. B324219, 2025 WL 2474870 (Cal. Ct. App. Aug. 28, 2025) (unpublished).
You see, when a judgment in California is reversed on attraction and remanded for a brand new trial, the plaintiff has three years to get it once more to trial. Cal. Civ. Proc. Code § 583.320. In Trejo, the design claims have been gone, however this plaintiff nonetheless had non-preempted claims for failure to warn—and he had three years to take his second chew on the jury apple. Deadlines to get circumstances to trial, each earlier than and after attraction, are properly established in California, and each decide, court docket clerk, and litigator within the state is conscious that the deadlines imply enterprise. Dockets are managed, schedules are adjusted, offers are made, and hoops are jumped by way of to make sure that the allotted time doesn’t expire.
All of this was true in Trejo, but the plaintiff nonetheless managed to overlook the deadline—in a case involving alleged accidents that already moved one jury to award a good-looking sum. (The alleged accidents have been Stevens-Johnson Syndrome and Poisonous Epidermal Necrolysis.) Worse but, the deadline got here and went due to a collection of miscues and delays that the court docket attributed to the plaintiff.
The trial deadline on remand was April 20, 2021, following an computerized six-month COVID extension. Proceedings on remand, nevertheless, have been intensive, with greater than twenty new skilled stories and extra depositions. On Could 17, 2021—which we’re certain you seen is past the deadline—the events submitted joint trial submissions, which the court docket rejected as poor for a number of causes. The events re-submitted, however the court docket this time seen that the motion seemed to be topic to necessary dismissal as a result of it was past the deadline for retrial.
The plaintiff, nevertheless, caught a break. In November 2021, the court docket dominated that it will have been “not possible, impracticable, or futile” to convey the case to trial due to COVID-related court docket delays, so it imposed a brand new retrial deadline of February 1, 2022. The plaintiff responded by serving one other skilled report with new opinions and requesting one other six-month extension, which the defendant opposed.
The court docket thus prompt a well known work round: Start the trial earlier than February 1, 2021, by swearing a jury, which satisfies the statutory deadline, after which adjourning the trial to a future date TBD. Reasonably than accepting the court docket’s suggestion, the events stipulated to increase the deadline once more, after which once more, after which once more. Finally, the events agreed to a retrial deadline of July 22, 2022, with the defendant reserving all objections. Put a pin in that date.
Whereas all this was occurring, the plaintiff continued to make issues tough. To start out with, the plaintiff moved to disqualify the decide for trigger twice as a result of the decide was purportedly biased in opposition to him. The court docket rejected these makes an attempt, whereas additionally holding 11 days of hearings to think about motions in limine, jury directions, verdict varieties, and so forth. The plaintiff raised new and unbriefed authorized arguments on a number of points, and he tried to interject new information all through the hearings. The plaintiff violated court docket orders governing pretrial filings, and he missed some deadlines whereas receiving a number of extensions for others.
Maybe sensing that the court docket’s endurance was carrying skinny, the plaintiff moved to disqualify the decide for bias for a 3rd time, which the court docket set for listening to on July 19, 2022, together with different pretrial points. When reminded that the stipulated retrial deadline was July 22, 2022, the court docket replied that “it shouldn’t be an issue, proper? 22nd. We’re going to be again on the 19th.”
On July 18, 2022, the court docket struck the third movement to disqualify and continued the pretrial listening to from July 19 to July 27, 2022.
You’ll be able to see the place that is headed. On July 25, the defendant moved to dismiss the case, which the court docket granted in a 60-page order observing that it was tough “to adequately describe the quantity and frequency of the filings and the time essential to learn, analysis, put together tentative rulings and conduct days of hearings that have been attributable to the cycle of briefing, rebriefing, late briefs, arguments, and re-arguments on this case . . . primarily triggered” by the plaintiff.
The Court docket of Attraction affirmed. First, the court docket’s order persevering with the pretrial listening to from July 19 to July 27 didn’t toll the deadline for these eight days, primarily as a result of the court docket’s dismissal order was primarily based on a recurring sample of noncompliance and delay. The plaintiff additionally couldn’t apply equitable estoppel in opposition to the court docket primarily based on the court docket’s assurance that “it shouldn’t be an issue,” as a result of equitable estoppel doesn’t apply in opposition to courts and since the plaintiff was not urging an equitable outcome anyway, significantly contemplating his lack of diligence.
Second, the plaintiff’s a number of motions to disqualify the decide for trigger didn’t toll the time interval, both. The court docket took 27 days to think about and reject the varied motions, however there is no such thing as a authority holding that these motions made it impracticable to maneuver the case towards trial. Nothing prevented the plaintiff from trial preparation throughout that point.
Third, the plaintiff argued that the court docket was darkish for 11 days in June and July to work on one other case and “due to a pre-planned trip.” As you may count on, this argument didn’t land. Abnormal delays like these usually are not bases for tolling.
Finally, the Court docket of Attraction dominated that the plaintiff’s arguments did not acknowledge that delays have been attributable to his personal late or poor filings. We have now all seen this occur: Plaintiffs enjoying quick and unfastened, and sometimes getting away with it. On this court docket’s view, this plaintiff pushed it too far.