MEMORANDUM OPINION AND ORDER OF COURT
TERRENCE McVERRY, District Judge
Pending before the Court is DEFENDANTS' PARTIAL MOTION TO DISMISS (Doc. No. 12), filed with brief in support (Doc. No. 13), and PLAINTIFF'S RESPONSE TO DEFENDANT'S PARTIAL MOTION TO DISMISS (Doc. No. 15), with brief in opposition (Doc. No. 16). Plaintiff subsequently filed an amended complaint on August 30, 2010 (Doc. No. 17), in response to which, DEFENDANTS' MOTION TO DISMISS COUNT II OF THE AMENDED COMPLAINT (Doc. No. 22), with brief in support (Doc. No. 23) were filed. Plaintiff responded in opposition to the motion to dismiss Count II (Doc. No. 25) with a brief in opposition (Doc. No. 26). The motions are now ripe for disposition.
Plaintiff's two count amended complaint is filed pursuant to the Family Medical Leave Act of 2003, 29 U.S.C. § 2601, et seq., (hereinafter "FMLA") for the allegedly wrongful termination of her employment by Defendant Port Authority of Allegheny County ("Port Authority"). Plaintiff also alleges a state law claim for the intentional infliction of emotional distress against the two individually named Defendants. It is this latter claim that Defendants move to dismiss.
Procedural Background
The Court begins with Defendants' partial motion to dismiss the original complaint filed on August 9, 2010 (Doc. No. 12). Plaintiff's original complaint contained five counts, which alleged two violations of Title VII, a violation of the FMLA, and two counts of intentional infliction of emotional distress. Doc. No. 1. With their original motion, Defendants moved to dismiss counts I and II (the Title VII counts) as untimely. Further, Defendants moved to dismiss counts IV and V (the intentional infliction of emotional distress counts), contending that the counts should be dismissed for a host of reasons, including statutory immunity under the Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa.Cons. Stat. §§ 8541- 8564 ("Tort Claims Act"), the exclusivity provisions of the Pennsylvania workers' compensation act, the claims were barred as being beyond the two year limitations period, and a failure to sufficiently allege a claim upon which relief can be granted.
In cases where a party filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), and where the EEOC does not itself file suit or obtain a conciliation agreement, "the [EEOC] or [DOJ] in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within 90 days after giving such notice a civil action may be brought against respondent named in the charge . . . by the person claiming to be aggrieved . . ." 42 U.S.C. § 2000e-5(f)(1). Defendants moved for dismissal of the two Title VII counts on the basis that Plaintiff failed to commence her civil action within 90 days of receiving notice of her right to sue. See Doc. Nos. 12 and 13.
In her response in opposition to Defendant's partial motion to dismiss, Plaintiff acknowledged a number of the defects referenced by Defendants in her original complaint, particularly that counts I and II (the two Title VII counts) were untimely, and that count V (the intentional infliction of emotional distress count against the Defendant Port Authority) was barred under the Pennsylvania Tort Claims Act. See Doc. No. 15 at ¶¶ 1, 2, and 4. Plaintiff's amended complaint, filed on the same day and after her response in opposition, reduced the number of claims from five to two, and re-pled that which was previously count III (violation of the FMLA), and count IV (intentional infliction of emotional distress claim directed against Defendants Steinmetz and Wells) as counts I and II of the amended complaint, respectively. See Doc. No. 18.
1. Defendants' Partial Motion to Dismiss
The Court first addresses Defendants' partial motion to dismiss the original complaint. An amended complaint supersedes the original complaint. See Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002); see also 6 Charles A. Wright et al., Federal Practice and Procedure § 1476, at 556 (2d ed. 1990). Given the fact that Plaintiff conceded the grounds for dismissal as to three of the original five counts, coupled with the subsequent filing of her amended complaint, to which Defendants' have moved for dismissal of count II, the basis for the partial motion to dismiss the original complaint has become moot and will be dismissed.
2. Defendants' Motion to Dismiss Count II of the Amended Complaint
Defendants now contend that count II of the amended complaint should be dismissed because Plaintiff has failed to allege sufficient facts to entitle her to relief. Doc. Nos. 22 23. Plaintiff responds in opposition averring that, as pled, the individual Defendants' conduct was outrageous enough in nature to adequately assert a claim for the intentional infliction of emotional distress. Doc. No. 26.
Although neither party has questioned the Court's supplemental jurisdiction over Plaintiff's state law tort claim, the Court sua sponte must address whether it has jurisdiction over Count II and Defendants Steinmetz and Wells. See, Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). Count II is a state law tort claim against two separate co-worker defendants in their individual capacities. In the amended complaint, Plaintiff invokes the jurisdiction of this Court exclusively upon the original jurisdiction to consider the FMLA claim. See Doc. No. 17 at ¶ 2.
In 28 U.S.C. § 1367, Congress authorized district courts to exercise jurisdiction supplemental to their federal question jurisdiction:
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). Supplemental jurisdiction over a pendent state claim is available under § 1367(a) only if three requirements are met.
Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995).
First, there must be a federal claim that has "substance sufficient to confer subject matter jurisdiction on the court."
Id. (quoting
United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Second, under what is called the "nexus requirement," the federal claims and the pendent state claims must "derive from a common nucleus of operative facts."
Lyon, 45 F.3d at 760. Third, leaving the federal or state character of the claims aside, the nature of the claims must be such that the party would "ordinarily be expected to try them all in one judicial proceeding."
Id. Subject matter jurisdiction over the non-diversity state-law claim exists only when each of these three requirements are satisfied.
Section 1367 codified the judicially created concepts of "pendent" and "ancillary" jurisdiction together under the single umbrella of "supplemental jurisdiction." De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307 (3d Cir. 2003); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 300-03 (3d Cir. 1998).
Whether claims derive from a "common nucleus of operative facts" is a fact-intensive inquiry. By way of example, in Lyon, the Third Circuit held that no nexus existed between a Fair Labor Standards Act claim involving a failure to pay overtime wages and common law contract and tort claims involving the underpayment of a bonus. 45 F.3d at 763. In that particular circumstance, the Third Circuit stated that because there was "so little overlap between the evidence relevant to [the] claims . . . it would be charitable to characterize the relationship of the federal and state claims as involving even a `loose' nexus." Id.
The Lyon court guided that a district court should look to whether the same facts are necessary to prove both the federal and state claims; in other words, whether the federal and state claims are "merely alternative theories of recovery based on the same acts." Id. at 761 (citing Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 494 (3d Cir. 1979)). For example, state assault claims in federal civil rights suits which allege police abuses are a common area in which supplemental jurisdiction exists. Id. Accordingly, a review of the respective factual averments is appropriate.
Generally speaking, there are three elements that must be proven by Plaintiff in order to establish a prima facie case of retaliation for the exercise of her rights under the FMLA, 1) that she took FMLA leave, 2) that she suffered an adverse employment decision, and 3) that the adverse employment decision was causally related to her leave. See Conoshenti v. Public Service Elec. Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). The following facts are taken from Plaintiff's amended complaint. Beginning on or about April 15, 2008, Plaintiff first requested leave under the FMLA due to a variety of medical conditions, including depression, panic attacks, anxiety, and migraine headaches. See Doc. No. 17 at ¶¶ 16 — 18. On that day and continuing until June 23, 2008, Plaintiff worked a half-day work schedule, though she was absent from work on numerous occasions during this time period due to her conditions. Id. at ¶ 21. June 23, 2008 was the final day Plaintiff actually worked for Defendant Port Authority. Id. at ¶ 18. On or about October 17, 2008, Plaintiff was informed that her employment with the Port Authority was terminated "due to inappropriate use of Family Medical Leave specifically, on the July 3 and July 4 dates, but also other considerations." Id. at ¶ 30.
It bears noting that "[t]he circuits have taken divergent paths in analyzing claims that an employee has been discharged in retaliation for having taken an FMLA leave," with some circuits finding that such claims arise under § 2615(a)(2) and others holding that §§ 2615(a)(1), 2615(a)(2), and 29 C.F.R. § 825.220(c) all give rise to retaliation claims. Conoshenti, 364 F.3d at 147 n. 9 (emphasis added). The position of the Third Circuit is in accord with that of the Ninth Circuit, which "predicated liability in such situations on § 825.220(c)." Id.; accord. Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005) (citing Conoshenti).
During the operative time period, Plaintiff contends that she was waiting to receive approval for placement into a sedentary position. Plaintiff alleges that at different (unspecified) times she was in contact with two other Port Authority employees, Nick Ivkovich and Monica Simpson, with respect to her medical condition. Id. at ¶¶ 26 29. According to Plaintiff, these employees provided her with some degree of assurance that she would be able to use family medical leave over July 3 and 4, 2008. It is for this reason that Plaintiff alleges Defendant Port Authority violated her rights under the FMLA when it terminated her employment. The Court notes that Defendants Steinmetz and Wells are not referenced, either specifically or by implication, in any manner in Count I of the amended complaint. These two Defendants were apparently not Plaintiff's supervisors or decision-makers in her termination.
Defendants Steinmetz and Wells are, however, specified in the intentional infliction of emotional distress claim of Count II. Regarding the elements of that claim, Pennsylvania has adopted the definition of the Restatement (Second) of Torts § 46(1) (1965), which states that "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor. Abadie v. Riddle Memorial Hosp., 404 Pa.Super. 8, 589 A.2d 1143, 1145-46 (1991).
Plaintiff alleges that on March 22, 2006, she filed a charge of discrimination with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission regarding "complaints concerning harassment and sexual and lewd rumors and graffiti." Id. at ¶ 42. While not specifically described in the amended complaint, Defendants Steinmetz and Wells were apparently implicated in that 2006 charge of discrimination, as "[s]ubsequent to this filing, Plaintiff continued to be harassed by Defendants Wells and Steinmetz, who engaged in intentional conduct both on and outside the premises of the Port Authority." Id. at ¶ 43. More particularly, in 2006 and again in August of 2009 (some nine months following the termination of Plaintiff's employment), Defendant Wells allegedly appeared at Plaintiff's then place of employment "to taunt and intimidate Plaintiff and cause Plaintiff emotional and mental distress." Id. at ¶¶ 44 46. Plaintiff further alleges that throughout 2008, both Defendants Steinmetz and Wells "engaged in defamatory statements to other employees of Port Authority regarding Plaintiff's veracity, Plaintiff's ongoing legal issues with Port Authority, Plaintiff's physical and mental health and Plaintiff's sexual activities." Id. at ¶ 45. Plaintiff believes, and therefore avers, that Defendants Steinmetz and Wells were acting in concert with one another, id. at ¶ 47, and were motivated by personal animus toward her, id. at ¶ 50.
To summarize, count I purports to allege a cause of action under federal law (FMLA) against Plaintiff's former employer, while count II purports to allege an unrelated state law tort cause of action against two of Plaintiff's co-workers. There is simply no overlap between the facts necessary to prove both the federal FMLA claim and the state law tort claim. Count II is not an alternative theory of recovery for the same operative acts. The parties alleged in the respective counts are separate and distinct. The theories of recovery invoked by Plaintiff are different and distinct. The underlying facts needed to support the respective theories of recovery are completely different, and further, they do not derive from the same set of operative facts. Finally, by their nature, the respective claims are not such that one would ordinarily expect to try them both in one judicial proceeding. As the Third Circuit noted in Lyon, it takes more than actionable yet diverse conduct occurring within a single employment setting to extend supplemental jurisdiction over state law claims. Lyon, 45 F.3d at 763 (referencing with approval Nicol v. Imagematrix, Inc. 767 F.Supp. 744 (ED Va., 1991)) (in declining to entertain state contract and fraud claims in a sexual discrimination suit, the district court pointedly noted that the sole common fact between the state and federal claims was the employment relationship); see also id., (referencing with approval Benton v. Kroger Co., 635 F.Supp. 56, 59 (SD Tex., 1986) (the district court refused to consider a state law retaliation claim, finding that "[a]lleged incidents of sexual harassment or gender bias were entirely separate from the circumstances surrounding plaintiff's back injury. These separate events can hardly be grouped as the `common nucleus of operative facts. . . .'")
For these reasons, Count II of Plaintiff's amended complaint will be dismissed for lack of jurisdiction. Therefore, the Court need not reach the merits of DEFENDANTS' MOTION TO DISMISS COUNT II OF THE AMENDED COMPLAINT. An appropriate order follows.
ORDER OF COURT
AND NOW, this 20th day of October, 2010, in accordance with the foregoing Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that DEFENDANTS' PARTIAL MOTION TO DISMISS (Doc. No. 12) is DISMISSED AS MOOT.
It is FURTHER ORDERED that, for the reasons hereinabove stated, Count II of the Amended Complaint is DISMISSED for lack of jurisdiction. Accordingly, DEFENDANTS' MOTION TO DISMISS COUNT II OF THE AMENDED COMPLAINT (Doc. No. 22) is DISMISSED AS MOOT.
t wherever and whenever it may be done without unduly adversely affecting the rights of others." (
Id. at p. 840; see also
Pham v. Nguyen (1997)
54 Cal.App.4th 11, 15-16 [
62 Cal.Rptr.2d 422] [discussing proper application of Code Civ. Proc., § 595.2 — the statutory successor to the provision addressed in
Lorraine, supra, 220 Cal. 753, and explaining that "even though section 595.2 is directory, we would encourage trial courts — as the
Lorraine court itself indicated — to `accommodate' counsel whenever it is not `impractical' to do so"].)
As we shall see, the general principles underlying the decisions in Lorraine, supra, 220 Cal. 753, and Thurmond, supra, 66 Cal.2d 836, inform the proper interpretation and application of the relevant provisions of section 1050, subdivision (a), the statutory provision at issue in the present case.
Section 1050, subdivision (a) currently reads in full: "The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. In further accordance with this policy, death penalty cases in which both the prosecution and the defense have informed the court that they are prepared to proceed to trial shall be given precedence over, and set for trial and heard without regard to the pendency of, other criminal cases and any civil matters or proceedings, unless the court finds in the interest of justice that it is not appropriate." (Italics added.)
Although section 1050, subdivision (a), sets forth a general legislative policy that criminal cases shall be granted precedence over civil cases, as the language of the italicized sentence itself indicates, the statute explicitly declares that such precedence is to be applied "[ i]n accordance with" the policy set forth in the preceding sentence, that is, in accordance with the policy of expediting criminal cases "to the greatest degree that is consistent with the ends of justice." (§ 1050, subd. (a), italics added.) Because the statute explicitly recognizes a court's fundamental and overriding obligation to administer the proceedings that are pending before it in a manner that is consistent with the ends of justice, past decisions have recognized that the provision cannot properly be interpreted as establishing an absolute or inflexible rule mandating such precedence under all circumstances or in total abrogation of a trial court's ultimate control or discretion over the order in which the cases pending before it should be considered. (See, e.g., People v. McFarland (1962) 209 Cal.App.2d 772, 777 [ 26 Cal.Rptr. 596] ["the purposes to be achieved [by the statute] expressly are subservient to the `ends of justice'"].)
From section 1050's inception, numerous cases have stated that this statute is "directory," but these cases generally have used the term "directory" to refer to the circumstance that the statute does not specify a remedy for a violation of its provisions (see, ante, at p. 1148, fn. 7) and accordingly have found that a failure to comply with a particular directive set forth in section 1050 does not, in itself, require dismissal of a criminal proceeding. (See, e.g., Ray v. Superior Court (1929) 208 Cal. 357, 359 1281 P. 3911 [failure to bring case to trial within 30 days of entry of plea — as § 1050 originally provided (see, post, at p. 1152, fn. 9) — does not require dismissal]; People v. Marshall (1930) 209 Cal. 540, 546 [ 289 P. 629] [same]; Malengo v. Municipal Court (1961) 56 Cal.2d 813, 816 [ 17 Cal.Rptr. 10, 366 P.2d 453] [prosecution's failure to establish that continuance of trial was required by ends of justice does not require dismissal].) Section 1050, subdivision (/) — enacted in 2003 — codifies these judicial rulings, stating that "[t]his section is directory only and does not mandate dismissal of an action by its terms."
Because the numerous judicial decisions characterizing section 1050 as "directory" were concerned primarily with the remedy, or lack thereof, to be imposed for noncompliance with the statute's requirements, and did not involve the question whether the sentence in section 1050 granting precedence to criminal cases over civil cases is properly interpreted as merely directive rather than compulsory, those decisions are not directly in point with regard to the issue before us in this case. Nonetheless, as explained in the text, both the relevant language of section 1050, subdivision (a), itself, and the governing decision of this court that does address the effect of section 1050's provisions granting precedence to criminal cases, establish that this aspect of the statute was not intended, and should not be interpreted, to eliminate a trial court's ultimate discretion to depart from the general legislative policy granting calendar precedence to criminal matters when the court concludes that the "ends of justice" require such a departure.
Indeed, when the extremely wide spectrum of cases falling within the respective "criminal" and "civil" categories is taken into consideration, it clearly appears that the statutory language in question cannot reasonably be interpreted as intended to establish an absolute, inflexible command that criminal cases be granted precedence over civil proceedings in any and all circumstances. Criminal cases, of course, run the gamut from serious felony charges involving multiple murder and other violent offenses to minor misdemeanor cases involving much less serious charges; similarly, civil cases encompass not only what might be characterized as run-of-the-mill slip-and-fall personal injury cases or routine breach-of-contract actions, but also, for example, proceedings contesting the temporary or permanent custody of young children, actions to obtain injunctive relief or keep-away orders intended to protect the asserted victims of domestic violence or stalking, cases seeking the civil commitment of alleged sexually violent predators, or proceedings challenging the attempted eviction of families from their homes. Just as this court found in Thurmond, supra, 66 Cal.2d 836, that the statutory provision at issue in that case could not properly be applied so as to entirely deprive a court of discretion to protect the interests of all persons before the court, we conclude that the relevant provisions of section 1050 cannot properly be interpreted to strip a trial court of the ultimate control over the cases within its jurisdiction so as, for example, to compel the court to postpone or totally forgo consideration of an urgent or extremely important civil proceeding in which time is of the essence in order to make way for the trial of a relatively less serious criminal matter. Furthermore, particularly in light of the constitutional separation-of-powers considerations set forth in the decisions in Lorraine, supra, 220 Cal. 753, and Thurmond, supra, 66 Cal.2d 836, we find it abundantly clear that the provisions of section 1050 cannot properly be interpreted to require a trial court completely to forgo or abandon consideration of all civil cases or proceedings over an extended period of time when the number of criminal cases filed and pursued to trial continually overwhelms the resources available to the court for the disposition of both criminal and civil matters.
The history of section 1050 supports the conclusion that the Legislature did not contemplate that this statute would require a trial court to completely abandon the processing of civil cases pending before the court when faced with a congested criminal calendar.
Section 1050 was initially enacted in 1927. (Stats. 1927, ch. 600, § 1, p. 1036.) Prior to that time, former section 1052 provided that "[w]hen an action is called for trial, or at any time previous thereto, the Court may, upon sufficient cause, direct the trial to be postponed to another day." (Code Amends. 1880, ch. 47, § 61, p. 20.) The 1927 legislation repealed former section 1052 (Stats. 1927, ch. 600, § 2, p. 1036) and enacted in its place section 1050, which then read in full: "The court shall set all criminal cases for trial for a date not later than thirty days after the date of entry of the plea of the defendant. No continuance of the trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance. No continuance shall be granted for any longer time than it is affirmatively proved the ends of justice require. Whenever any continuance is granted, the court shall enter in its minutes the facts proved which require the continuance. Criminal cases shall be given precedence over civil matters and proceedings. If any court is unable to hear all criminal cases pending before it within thirty days after the respective defendants have entered their pleas, it must immediately notify the chairman of the judicial council." (Stats. 1927, ch. 600, § 1, p. 1036, italics added.)
Thus, as initially enacted, the portion of section 1050 stating that criminal cases should be given precedence over civil matters and proceedings was followed immediately by a sentence providing that if any court were unable to hear all criminal cases pending before it within the period set forth in the statute for bringing criminal cases to trial, the court "must immediately notify the chairman of the judicial council." Although the statute did not spell out the reason for this notification requirement, the explanation is readily ascertainable.
One year earlier, in 1926, a new provision — then denominated article VI, section la — had been added to the California Constitution, establishing the Judicial Council and designating the Chief Justice of California as the Chairman of the Judicial Council. In addition to setting forth the administrative authority and duties of the Judicial Council, the new constitutional section provided that "[ t]he chairman [of the Judicial Council] shall seek to expedite judicial business and to equalize the work of the judges, and shall provide for the assignment of any judge to another court of a like or higher jurisdiction to assist a court or judge whose calendar is congested, to act for a judge who is disqualified or unable to act, or to sit and hold court where a vacancy in the office of judge has occurred." (Cal. Const., art. VI, former § la, italics added.) Accordingly, although section 1050, as initially enacted, declared that criminal cases should be given precedence over civil cases, it appears reasonably clear the statute did not contemplate that a trial court finding itself unable to bring criminal cases pending before it to trial within the statutorily prescribed time period would be required to suspend or entirely abandon consideration of all civil cases pending before the court, but rather intended that the court would notify the Chairman of the Judicial Council who then would assign one or more out-of-county judges to the overburdened court to remedy the court congestion.
Although, as a result of numerous amendments to section 1050 over its lengthy existence, the required notification to the Chairman (now Chair) of the Judicial Council no longer appears immediately adjacent to the sentence in section 1050, subdivision (a) that calls for the granting of precedence to criminal cases over civil cases, the notification requirement remains an integral part of section 1050. Section 1050, subdivision (j) explicitly provides in this regard that "[w]henever it shall appear that any court may be required, because of the condition of its calendar, to dismiss an action pursuant to Section 1382, the court must immediately notify the Chair of the Judicial Council." And, under the relevant provision of the California Constitution (now art. VI, § 6, subd. (e)), the Chair of the Judicial Council retains authority to assign additional judges to an overburdened court "to expedite judicial business and to equalize the work of judges."
Accordingly, the history of section 1050 demonstrates that the remedy contemplated by the statute when a trial court finds it may be required to dismiss a criminal proceeding because of the congested condition of its calendar is the assignment of additional judges to assist the court, and not the trial court's abandonment of its inherent and fundamental responsibility and authority to ensure that its judicial resources are utilized to promote the fair administration of justice in all of the matters pending before it, civil and criminal.
Indeed, in the present case the district attorney does not argue that section 1050 should be construed to eliminate all trial court discretion over the calendaring of civil versus criminal matters. In the briefs filed in this court, the district attorney maintains he "has never asserted or argued that criminal matters should take precedence over all civil matters or proceedings" and "has never sought to `shut-down' the family law or probate departments, or any other non-criminal departments handling civil trials." Instead, the district attorney argues that "there should be no judges or courtrooms in Riverside County that are completely excluded from being considered or utilized for a last day criminal trial matter," maintaining that the trial court in the present case erred in failing to examine the specific charges and circumstances of the Engram matter (and of each of the other 17 criminal cases before it) as well as the specific facts of each of the matters then pending in the family law, probate, and juvenile departments in order to determine whether a particular criminal case should take precedence over a particular civil matter pending in those departments. Thus, the district attorney faults the superior court for adopting and applying a general policy under which the family law, probate, and juvenile departments of the superior court were reserved for the resolution of matters falling within the specialized jurisdiction of each department.
Contrary to the district attorney's contention, however, past cases establish that section 1050 does not preclude a trial court — in implementing an efficient and cost-effective system for organizing and administering the processing of the many diverse matters pending before it — from designating separate departments to handle criminal and civil matters and, within reasonable limitations, assigning cases for trial only within the appropriate department.
The leading case on point is this court's decision in Osslo, supra, 50 Cal.2d 75. In Osslo, the defendants contended that the trial court violated the provisions of former section 681a and section 1050 by postponing the commencement of their criminal trial while civil cases were sent out to trial in separate civil departments of that court. In Osslo, the court explicitly rejected this contention, declaring: "It does not appear that the policy of sections 681a and 1050 was disregarded. [The trial court's] explanation of the condition of the calendar shows that defendants were not being deprived of precedence over civil cases for any arbitrary reason and that the continuances to enable trial in Department 4 [(the presiding criminal department)] were not made for the purpose of improperly channeling the case into that department. Rather, it appears that the orderly administration of a crowded calendar required the continuances to enable trial of the case in a proper department. The precedence to which criminal cases are entitled is not of such an absolute and overriding character that the system of having separate departments for civil and criminal matters must be abandoned." (Osslo, at p. 106, italics added.) (See also People v. Weiss (1958) 50 Cal.2d 535, 558 [ 327 P.2d 527] [relying upon Osslo for the principle that a trial court, in setting or continuing criminal trials, may implement policies that further "the orderly administration of justice"].) Nothing in Osslo suggests that the trial court was required to examine the specific facts of the particular civil cases that were sent out to trial before retaining the criminal proceeding for trial in a criminal department.
At the time of Osslo, former section 681a provided: "The welfare of the people of the state of California requires that all proceedings in criminal cases shall be heard and determined at the earliest possible time. It shall be the duty of all courts and judicial officers and of all district attorneys to expedite the hearing and determination of all such cases and proceedings to the greatest degree that is consistent with the ends of justice." (Stats. 1927, ch. 618, § 1, p. 1045.) In 1959, former section 681a was repealed and its provisions were incorporated into section 1050. (Stats. 1959, ch. 1693, §§ 1, 2, p. 4092.) The language of former section 681a now is contained within section 1050, subdivision (a). (See, ante, at pp. 1150-1151.)
Thereafter, in People v. McFarland, supra, 209 Cal.App.2d 772, the court relied upon Osslo, supra, 50 Cal.2d 75, in rejecting the defendant's contention that the trial court, in finding good cause to continue the defendant's criminal trial beyond the 60-day period based upon the circumstance that a codefendant's counsel was engaged in a civil trial, had violated section 1050 by effectively giving precedence to a civil case over a criminal trial. In concluding that the trial court's action did not violate the provisions of that statute, the court in McFarland stated: "The provisions [of section 1050] relied upon merely establish a policy ( People v. Tenedor [(1951)] 107 Cal.App.2d 581, 583 [ 237 P.2d 679]); are not absolute ( People v. Osslo, [supra,] 50 Cal.2d 75, 106 . . .); and do not require that criminal proceedings be given precedence over civil proceedings regardless of the circumstances. ( People v. Osslo, supra, 50 Cal.2d 75, 106.) Collaterally the provisions of section 681a of the Penal Code declare a policy that `criminal cases shall be heard and determined at the earliest possible time,' and impose a duty upon the courts, judicial officers and district attorneys `to expedite the hearing and determination of all such cases and proceedings to the greatest degree that is consistent with the ends of justice.' It is obvious that these provisions do not impose an arbitrary standard because the purposes to be achieved expressly are subservient to the `ends of justice.'" ( McFarland, at p. 777; see also People v. Carlson (1977) 76 Cal.App.3d 112, 114-115 [ 142 Cal.Rptr. 638].)
Thus, contrary to the district attorney's contention, this court's decision in Osslo, supra, 50 Cal.2d 75, and the cases following that decision, establish that section 1050 does not preclude a trial court from creating separate criminal and civil departments, establishing a general policy under which cases or proceedings are assigned to an appropriate department for trial, and thereafter generally retaining cases for trial within the appropriate department. Accordingly, under Osslo, the trial court in the present case did not violate section 1050 simply because it declined to assign the present case for trial in one of the specialized departments reserved for the disposition of family law, probate, or juvenile matters without considering the specific facts or circumstances of the individual cases that were then pending in each of those departments. Indeed, interpreting section 1050 as restricting a court's discretion in this area only to undertaking a case-by-case comparison of each pending criminal and civil case — as argued by the district attorney, in essence — would greatly increase the administrative burdens upon the court, predictably resulting in even greater court congestion and delay in a chronically overtaxed court. There is no sound basis for construing the statute in a manner that impedes the flexibility needed to facilitate the fair, effective, and efficient administration of justice of all matters pending before the court. (Accord, e.g., People v. Najera (1979) 88 Cal.App.3d 930, 933, 934 [ 152 Cal.Rptr. 124] [rejecting claim that constitutional provision authorizing the assignment of a judge to another court permitted only the assignment of an individual judge by name, and upholding validity of "blanket" assignment of all L.A. County Municipal Court judges to sit as L.A. County Superior Court judges for a designated period of time, emphasizing that "[flexibility in administration on a day-to-day basis is needed and permitted . . ."]; People v. Swain (1995) 33 Cal.App.4th 499, 503-504 [ 39 Cal.Rptr.2d 422] [same].)
Although this court's decision in Osslo establishes that the precedence to which criminal cases are entitled under section 1050 does not require that "the system of having separate departments for civil and criminal matters must be abandoned" ( Osslo, supra, 50 Cal.2d 75, 106), at the same time a number of Court of Appeal decisions demonstrate that a trial court's authority to designate and maintain separate civil and criminal departments is not without limits. These appellate decisions recognize that the section 1050 directive granting criminal cases precedence over civil cases generally has been interpreted to require a trial court to organize its civil and criminal departments and workload in a manner that (1) acknowledges the important state interest in the expeditious resolution of criminal proceedings as reflected in section 1050, and (2) does not shortchange the court's criminal caseload by creating or maintaining a disproportionately large number of civil as compared to criminal departments.
The case of Echols, supra, 125 Cal.App.2d 810 demonstrates this point. In Echols, although the defendants were in custody and had announced they were ready for trial and objected to any delay beyond the presumptive statutory period for bringing the case to trial, the trial court found good cause to continue trial beyond the statutory period on numerous occasions, based solely upon the circumstance that in the particular criminal trial department to which the defendants' case initially had been assigned there were older cases that were then in trial or that were scheduled for trial prior to the defendants' case. In concluding that the trial court erred in delaying the defendants' trial on this basis, the court in Echols observed: "The San Francisco Superior Court had 22 regular departments and one extra sessions department. No showing was made at any time why this case could not have been tried in one of the other criminal departments. Assuming, without a showing to that effect, that they were all busy, no reason was given why the case could not have been assigned to one of the many civil departments. . . . We are informed that of the 23 departments only four try criminal cases (not counting the juvenile court which also tries certain types of criminal cases). Apparently, this is approximately the same number of criminal departments San Francisco had when its total departments numbered only 16. . . . [¶] With 23 departments to choose from, in order to protect the fundamental rights of persons charged with crime more departments could be assigned criminal cases." ( 125 Cal.App.2d at pp. 815-816, italics added.) Emphasizing that "[n]o judge has an inherent right to try any particular case nor to refuse to transfer cases out of his department" ( id. at p. 817), the court in Echols reversed the trial court's determination that the delay of the defendants' trial was supported by good cause.
In Stewart v. Superior Court (1955) 132 Cal.App.2d 536 [282 P.2d 582J ( Stewart), the appellate court reached a similar conclusion. In setting forth the relevant facts in that case, the court in Stewart stated: "In an affidavit of petitioner's counsel filed with the petition it is stated on information and belief that on March 3 and 4 [(the days on which the commencement of defendant's trial was continued by the trial court on the basis of a congested calendar)] only 8 of the 59 judges of the [Los Angeles] superior court presiding at the county seat were assigned to departments for the trial of criminal cases and that on those dates 29 civil cases were assigned for trial to the civil departments of the court. These statements are not denied by respondent [superior court]. This procedure, of course, was contrary to the requirements of section 1050 of the Penal Code: `Criminal cases shall be given precedence over all civil matters and proceedings.'" ( Stewart v. Superior Court (1955) 132 Cal.App.2d at p. 538; see also Dearth v. Superior Court (1940) 40 Cal.App.2d 56, 59 [104 P.2d 376] ( Dearth) ["To comply with the provision contained in section 1050 of the Penal Code that criminal matters should be given precedence over civil matters . . ., a greater number of judges should have been assigned to departments handling criminal matters. There are fifty judges in the Superior Court of Los Angeles County, and the showing that a large number of civil cases were pending does not excuse the failure to assign a sufficient number of judges to handle criminal matters."].)
Unlike the circumstances in Echols, supra, 125 Cal.App.2d 810, Stewart, supra, 132 Cal.App.2d 536, Dearth, supra, 40 Cal.App.2d 56, and similar cases, the record in this case and the records in the recent cases of Cole, supra, 165 Cal.App.4th Supp. 1, and Flores, supra, 173 Cal.App.4th Supp. 9, make clear that the Riverside Superior Court by no means shortchanged criminal cases by reserving an unreasonably high number or proportion of judges or courtrooms exclusively for the trial of civil matters. On the contrary, during the period of time relevant to all of these matters, the Riverside Superior Court continually granted substantial precedence to criminal cases over civil cases, utilizing virtually all of the court's ordinary civil department judges and courtrooms for the trial of criminal cases. Furthermore, official records establish that the Chair of the Judicial Council was well aware of the very serious backlog of criminal cases pending in the Riverside Superior Court and that, during the period covered by this case and the Cole and Flores decisions, an unprecedented 28-judge strike force of retired and out-of-county active judges was assigned to the Riverside Superior Court by the Chair of the Judicial Council to assist in the trial and disposition of criminal cases. (See Riverside Task Force Rep., supra, at p. 7.)
In its official report issued in August 2008 — just shortly before the proceedings at issue in this case took place — the task force explained: "[B]ecause of the recurrence of last-day criminal cases, the [Riverside Superior Court's] ability to conduct civil trials had been seriously compromised. At that time only one department continued to regularly hear civil trials, and that was as a result of the district attorney's blanket challenge to a judge." (Riverside Task Force Rep., supra, at p. 5.) Thus, as the appellate decisions in Cole and Flores make clear, the lack of judges and courtrooms available to try all of the criminal cases pending before the Riverside court within the presumptive statutory speedy-trial period was not a consequence of that court's failure to devote a reasonable proportion of its resources to its criminal caseload, but reflected instead the circumstance that the number of criminal cases that were filed and pursued to trial in the Riverside Superior Court overwhelmed the resources provided to the court for the resolution of both criminal and civil cases. Under these circumstances — in which the superior court already was granting considerable precedence to the processing of criminal cases over civil cases, and in which it was apparent that the present case was not an isolated last-day criminal matter that reasonably could be accommodated without establishing a precedent that would create an appreciable adverse effect upon the specialized civil departments in question — we agree with the appellate courts in Cole and Flores and with the Court of Appeal in the present case that the Riverside Superior Court did not violate section 1050 by declining to assign a last-day criminal case for trial in one of the specialized departments handling family law, probate, and juvenile cases.
Although the district attorney acknowledges in his briefing that section 1050's directive that criminal cases be granted precedence over civil cases is not absolute and does not preclude a court from exercising discretion in appropriate circumstances to decline to preempt all civil cases, he nonetheless relies heavily upon two Court of Appeal decisions — Tudman v. Superior Court (1972) 29 Cal.App.3d 129 [ 105 Cal.Rptr. 391] ( Tudman) and Perez v. Superior Court (1980) 111 Cal.App.3d 994 [ 169 Cal.Rptr. 45] ( Perez) — that contain language indicating the provision of section 1050 granting precedence to criminal cases over civil cases does indeed impose an absolute and inflexible rule requiring a trial court in all circumstances to grant trial preference to a criminal proceeding over a civil proceeding.
In Tudman, supra, 29 Cal.App.3d 129, the parties consented to continue trial to a date beyond the presumptive statutory deadline and on that date all parties announced they were ready for trial. At that point, however, the trial court noted there were no courtrooms available to try the case and found good cause existed under section 1382 to trail the case to await the availability of a trial department. After the case had trailed for a number of days, the defendants sought a writ in the Court of Appeal, contending the trailing order was improper and relying upon the circumstance that while their criminal case was trailing, several civil cases had been sent out for trial. In expressing its agreement with the defendants' contention, the appellate court in Tudman, after quoting the portion of section 1050 granting precedence to criminal cases, stated in unequivocal terms: "In view of this firm legislative policy, the fact that civil cases were sent out for trial on July 7 [(the day the trial court observed no courtrooms were available to try defendants' criminal case)] eliminates any legal ground for refusing to send out defendants' case for trial in one of the departments in the civil pool." (Tudman, supra, 29 Cal.App.3d at p. 132, italics added.) In so stating, however, the court in Tudman did not consider what proportion of the court's departments was devoted to the trial of criminal cases and what proportion to civil cases, or what steps the court had taken to facilitate the timely trial of criminal matters. Tudman also failed to discuss (or, indeed, to take any note of) this court's prior decision in Osslo, supra, 50 Cal.2d 75, which, as we have seen, explicitly held that section 1050's directive that criminal cases be given precedence over civil cases "is not of such an absolute and overriding character that the system of having separate departments for civil and criminal matters must be abandoned." (Osslo, supra, 50 Cal.2d at p. 106, italics added.)
The Court of Appeal's decision in Perez, supra, 111 Cal.App.3d 994, exhibits a similar flaw. In Perez, the record disclosed that all the departments of the Superior Court of Ventura County — except the law and motion and master calendar departments — were then engaged in ongoing criminal trials and that, as a consequence, the Ventura court had adopted a general policy permitting ongoing criminal trials to be interrupted one day a week (on the first workday of the week) to enable at least some civil matters — those that could be disposed of in less than one day — to be heard. ( Perez, supra, 111 Cal.App.3d at p. 997.) In Perez, the last day for bringing the defendant's criminal proceeding to trial (within the presumptive statutory period) fell on the first day of the workweek, the day set aside for the trial of short civil matters. In apparent reliance upon the court's general policy, the trial court found good cause to continue the defendant's trial. The defendant sought a writ in the Court of Appeal. In Perez, unlike the situation in Echols, supra, 125 Cal.App.2d 810, and the other analogous cases discussed above (pp. 1156-1157, ante), the record made clear that the Ventura court had granted considerable precedence to criminal cases over civil cases and thus that this was not a situation in which the court had failed to devote a reasonable proportion of its judges or courtrooms to the trial of criminal matters. Nonetheless, the Court of Appeal in Perez-, embracing the language from Tudman, supra, 29 Cal.App.3d 129, 132, quoted above, held that "[u]nder the firm legislative policy enunciated in section 1050, `the fact that civil cases were sent out for trial on'" the last day for bringing Perez's case to trial within the statutory period "`eliminates any legal ground for refusing to send out [Perez's] case for trial in one of the departments in the civil pool. [Citations.]'" ( Perez, supra, 111 Cal.App.3d at p. 1000, fn. omitted.) As in Tudman, however, the court in Perez totally overlooked this court's explicit holding in Osslo, supra, 50 Cal.2d at page 106, that the provisions of section 1050 granting criminal cases precedence over civil cases is not of such an absolute nature that the system of separate departments for civil and criminal matters must be abandoned.
In addition to ignoring this court's controlling decision in Osslo, supra, 50 Cal.2d 75, the decisions in both Tudman, supra, 29 Cal.App.3d 129, and Perez, supra, 111 Cal.App.3d 994, failed to recognize that the question whether a trial court's policies and practices with regard to the processing of criminal and civil matters violate the provisions of section 1050 is separate and distinct from the question whether good cause exists to delay a criminal defendant's trial for purposes of the statutory speedy-trial provisions of section 1382. In both Tudman and Perez, the appellate courts' legal analysis proceeds from the assumption that, in each case, the trial court's determination that good cause existed under section 1382 to delay the defendants' trial was erroneous solely because, in the appellate court's view, the trial court violated the provisions of section 1050 in failing to assign the case for trial in a civil department. As discussed below (pp. 1162-1165, post), however, even when a trial court's failure to assign a last-day criminal case for trial in a civil department in preference to a pending civil case does not violate section 1050 — that is, when there is adequate justification for the trial court's decision not to preempt the trial of a civil matter in favor of a last-day criminal proceeding — it still may be the case that the lack of a number of judges or courtrooms sufficient to try the criminal case within the presumptive statutory period will not constitute good cause for purposes of section 1382 and thus will not be an appropriate basis for refusing to dismiss the criminal proceeding under section 1382. The courts in Tudman and Perez erred in conflating the distinct issues of the propriety of a trial court's action under section 1050 and the existence of good cause to delay a trial under section 1382.
As demonstrated by the circumstances of this case and of the Cole and Flores cases, an interpretation of section 1050's provision granting precedence to criminal cases over civil cases that would establish an absolute and inflexible rule requiring a trial court to grant preference to the trial of every criminal matter over every civil matter in all circumstances — as suggested by the broad language in Tudman, supra, 29 Cal.App.2d at page 132, and Perez, supra, 111 Cal.App.3d at page 1000 — could have the effect of compelling a trial court to devote all of its resources exclusively to the resolution of criminal cases and to abandon entirely its responsibility to provide for the fair administration of civil as well as criminal matters. As the decisions in Lorraine, supra, 220 Cal. at page 756, and Thurmond, supra, 66 Cal.2d at page 839, teach, such an interpretation of section 1050 would render the statute unconstitutional under the separation-of-powers doctrine.
In Superior Court v. County of Mendocino, supra, 13 Cal.4th 45, we explained that although it generally is constitutionally permissible for the Legislature to prescribe a number of furlough days on which the courts of a county would be closed, such a legislative measure would violate the separation-of-powers doctrine and be constitutionally invalid if the legislation went so far as to "defeat" or "materially impair" a court's ability to fulfill its constitutional function. ( Id. at pp. 52-66; see also Millholen v. Riley (1930) 211 Cal. 29, 33-34 [ 293 P. 69]; Brydonjack, supra, 208 Cal. 439, 444.) By the same token, section 1050 poses no separation-of-powers problem if it is understood simply (1) to preclude courts from shortchanging criminal matters by reserving a disproportionate number of judges or courtrooms exclusively for the trial of civil matters, and (2) to direct courts to grant precedence to the trial of criminal cases over civil cases so long as such precedence is consistent with the ends of justice. On the other hand, were section 1050 to be interpreted as establishing the type of rigid and absolute rule suggested by the language in Tudman, supra, 29 Cal.App.3d 129, 132, and Perez, supra. 111 Cal.App.3d 994, 1000, so that a court would lack discretion to hear any civil matter whenever the number of criminal actions filed and pursued to trial was so great as to completely overwhelm the resources provided to the court for the resolution of criminal and civil cases, the statute clearly would defeat or at the very least materially impair the court's fulfillment of its constitutional obligation to provide for fair administration of justice for all cases pending in the court, civil as well as criminal, and thus would be unconstitutional.
Under well-established precedent, of course, a statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question. (See, e.g., Miller v. Municipal Court (1943) 22 Cal.2d 818, 828 [ 142 P.2d 297]; In re Kay (1970) 1 Cal.3d 930, 942 [ 83 Cal.Rptr. 686, 464 P.2d 142]; People v. Amor (1974) 12 Cal.3d 20, 30 [ 114 Cal.Rptr. 765, 523 P.2d 1173].) Accordingly, we conclude that the decisions in Tudman v. Superior Court, supra, 29 Cal.App.3d 129, and Perez v. Superior Court, supra, 111 Cal.App.3d 994, should be disapproved to the extent those decisions hold that under section 1050 "the fact that civil cases were sent out for trial . . . eliminates any legal ground for refusing to send out [a criminal] case for trial in one of the departments in the civil pool." ( Tudman, at p. 132; see Perez, at p. 1000.)
For the reasons discussed above, we conclude that the trial court did not err in rejecting the district attorney's contention that, notwithstanding the priority that the Riverside Superior Court was giving to criminal cases by devoting virtually all of its civil departments to the trial of criminal cases, section 1050 obligated the court to go further and assign this case (as well as the numerous other last-day criminal cases then before it) for trial in the specialized family law, probate, or juvenile department. The Court of Appeal properly concluded that the trial court's determination and action did not violate the provisions of section 1050.
Although in this case the district attorney did not specifically request the trial court to assign the matter for trial to one of the assigned judges presiding over civil trials at the Hawthorne school site, the legal analysis set forth above demonstrates that the appellate division in Flores, supra, 173 Cal.App.4th Supp. 9, 25, correctly concluded that the trial court in that case did not violate section 1050 in declining to assign last-day criminal cases for trial by those judges presiding at that site who had been specifically assigned to the Riverside Superior Court to help alleviate the court's very substantial civil case backlog.
III
As noted above, the district attorney further contends that even if (as we have concluded) the trial court did not violate the provisions of section 1050 in declining to assign defendant's case for trial in one of the specialized civil departments and correctly determined that no judges or courtrooms were available to try defendant's case within the presumptive statutory period for bringing his case to trial, the court nonetheless erred in dismissing the charges against defendant under section 1382, because the court should have found that the lack of a judge or courtroom available to try defendant's case constituted good cause to delay his trial. The district attorney maintains that in the event the trial court properly considered all reasonable alternatives and nonetheless determined that no judge or courtroom was available, the court should have found that good cause existed under section 1382 to delay defendant's trial until a courtroom became available.
Under section 1382, when a criminal case has not been brought to trial within the time specified in the statute and the defendant has not consented to a postponement of his or her trial, the trial court must dismiss the action unless there is "good cause" for the delay. In People v. Sutton (2010) 48 Cal.4th 533 [ 106 Cal.Rptr.3d 883, 227 P.3d 437] ( Sutton), we recently examined the concept of good cause embodied in section 1382. Sutton explained that "[s]ection 1382 does not define `good cause' as that term is used in the provision, but numerous California appellate decisions that have reviewed good-cause determinations under this statute demonstrate that, in general, a number of factors are relevant to a determination of good cause: (1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay. [Citations.] Past decisions further establish that in making its good-cause determination, a trial court must consider all of the relevant circumstances of the particular case, `applying principles of common sense to the totality of the circumstances. . . .' [Citations.] The cases recognize that, as a general matter, a trial court `has broad discretion to determine whether good cause exists to grant a continuance of the trial' [citation], and that, in reviewing a trial court's good-cause determination, an appellate court applies an `abuse of discretion' standard. [Citations.]" ( Sutton, supra, 48 Cal.4th at p. 546, fn. omitted.)
In Sutton, supra, 48 Cal.4th 533, the delay in bringing the defendants' case to trial was attributable to the unavailability of counsel for one of the defendants, resulting from that counsel's ongoing engagement in another client's trial that had taken longer than expected. In the present case, the basis for the delay was not the unavailability of counsel but rather the unavailability of a judge or courtroom to try defendant's case within the presumptive statutory period. Past California decisions establish that when the unavailability of a judge or courtroom is fairly attributable to the fault or neglect of the state, such unavailability does not constitute good cause within the meaning of section 1382.
As this court explained in Johnson, supra, 26 Cal.3d 557, 571, in discussing the good-cause provision of section 1382: "A defendant's right to a speedy trial may be denied simply by the failure of the state to provide enough courtrooms or judges to enable defendant to come to trial within the statutory period. . . . `[Unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State's criminal-justice system are limited and that each case must await its turn.' [Citation.]" Although the court in Johnson recognized that the lack of a sufficient number of judges or courtrooms might constitute good cause to justify the delay of trial under section 1382 in "exceptional circumstances," the decision made clear that delay arising out of chronic congestion of a court's trial docket cannot be excused. ( People v. Johnson (1980) 26 Cal.3d at pp. 571-572 [ 162 Cal.Rptr. 431, 606 P.2d 738].)
In Johnson, supra, 26 Cal.3d 557, 571, the court quoted with approval the following passage, relating to the problem of delay caused by court congestion, set forth in the American Bar Association's Standards for Speedy Trial: "[D]elay arising out of the chronic congestion of the trial docket should not be excused. . . . [¶] . . . But, while delay because of a failure to provide sufficient resources to dispose of the usual number of cases within the speedy trial limits is not excused, the standard does recognize congestion as justifying added delay when `attributable to exceptional circumstances.' Although it is fair to expect the state to provide the machinery needed to dispose of the usual business of the courts promptly, it does not appear feasible to impose the same requirements when certain unique, nonrecurring events have produced an inordinate number of cases for court disposition." (ABA Project on Standards for Crim. Justice, Stds. Relating to Speedy Trial (Approved Draft 1968) pp. 27-28.) In elaborating upon the type of "unique, nonrecurring events" that would constitute "exceptional circumstances," this document states: "Thus, when a large-scale riot or other mass public disorder has occurred, some leeway for additional time is required to ensure that the many resulting cases may receive adequate attention from the prosecutor's office, defense counsel (possibly a single public defender office), and the judiciary." ( Id. at p. 28.)
In the present case, as in the prior cases of Cole, supra, 165 Cal.App.4th Supp. 1, and Flores, supra, 173 Cal.App.4th Supp. 9, arising out of the same general circumstances prevailing in the Riverside Superior Court during the relevant period, the trial court properly could find that the congested criminal caseload represented a chronic condition rather than an exceptional circumstance, and further that the lack of available courtrooms and judges was attributable to the Legislature's failure to provide a number of judges and courtrooms sufficient to meet the rapidly growing population in Riverside County. Under these circumstances, we conclude the trial court in this matter did not abuse its discretion in determining that the unavailability of a judge or courtroom to bring defendant's case to trial within the statutory period was fairly and reasonably attributable to the fault or neglect of the state and accordingly did not constitute good cause to delay the trial under section 1382.
The lack of a number of judges sufficient to handle the matters pending in the Riverside Superior Court is a long-known and well-documented problem. A 2004 study by the Judicial Council found that approximately 350 additional new judgeships were needed statewide and that the Riverside Superior Court was one of the trial courts most in need of new judgeships. (AOC Off. of Ct. Research, Rep. to Jud. Council, Update of Judicial Needs Study (Aug. 9, 2004) pp. 1, 7http://www.courtinfo.ca.gov/reference/resandstats.htm [as of Oct. 25, 2010].) Cognizant of the state's difficult financial situation, the Judicial Council requested only that the Legislature create the 150 most urgently needed new judgeships over a three-year period. In 2006. the Legislature authorized the creation of the first 50 new judgeships to be allocated to the various superior courts according to the council's uniform-need criteria (Gov. Code, § 69614; Stats. 2006. ch. 390, § 3), and in 2007 the Legislature authorized the creation of 50 additional new judgeships to be similarly allocated pursuant to the council's criteria (Gov. Code, § 69614.2; Stats. 2007, ch. 722, § 2). Although a total of 14 of the 100 new judicial positions authorized under the 2006 and 2007 legislation have been allocated to the Riverside Superior Court, only seven of those positions have been funded to date due to state budget constraints (Riverside Task Force Rep., supra, at p. 6), and the growth in workload in the Riverside Superior Court between 2004 and 2008 "largely overwhelmed" even the significant allocation of new judgeships to that court. (AOC Off. of Ct. Research, Rep. to Jud. Council, Update of Judicial Needs Study (Oct. 8, 2008) p. 4http://www.court info.ca.gov/reference/ resandstats.htm [as of Oct. 25, 2010].) In the Judicial Council's 2008 report to the Legislature regarding the need for new superior court judgeships, the Riverside Superior Court was ranked first in unmet judicial needs. (See Jud. Council, Rep. on Need for New Judgeships in the Superior Courts (Oct. 2008), submitted to the Legislature pursuant to the requirements of Gov. Code, § 69614, subd. (c)http://www.courtinfo.ca.gov/reference/resandstats.htm [as of Oct. 25, 2010].)
As he did in the Court of Appeal, the district attorney — in challenging the trial court's determination that good cause to delay defendant's trial did not exist — relies on the appellate department's decision in Yniquez, supra, 42 Cal.App.3d Supp. 13. We agree with the Court of Appeal that such reliance is misplaced. As pointed out by that court, our subsequent decision in Johnson, supra, 26 Cal.3d 557, took note of the Yniquez opinion and expressly questioned the validity of that decision insofar as it held that chronic court congestion properly could be found to constitute good cause to delay a trial and to deny a defendant's motion to dismiss under section 1382. ( Johnson, supra, 26 Cal.3d at pp. 570-571.) In light of Johnson, the Court of Appeal properly found that People v. Yniquez, supra, 42 Cal.App.3d Supp. 13 should not be followed, and we disapprove the appellate division's decision in that case.
Finally, the district attorney argues that in light of the very substantial number of criminal cases pending in the Riverside Superior Court, that court's policy of declining to assign last-day criminal cases to the specialized family law, probate, and juvenile departments should be considered an "exceptional circumstance," justifying a delay of trial beyond the presumptive statutory period. We disagree. Although a prosecutor is free, within legal and ethical requirements, to pursue whatever charging and plea-negotiation policies he or she deems appropriate, the applicable California statutes do not require a chronically underfunded and understaffed court such as the River-side Superior Court either (1) to accommodate last-day criminal proceedings by devoting an unreasonable or disproportionate share of its resources to ensure that all last-day matters will be tried within the presumptive statutory period, or (2) to continue such trials beyond the presumptive statutory period (rather than dismiss the criminal proceedings) on the premise that the persistent backlog constitutes "good cause" under section 1382 to justify a delay. The calendar congestion that produced the circumstance in which the numerous last-day criminal cases pending in the superior court exceeded the resources available to the court unquestionably constituted a chronic condition. It cannot properly be characterized as an "exceptional circumstance" as that term was used in our decision in Johnson, supra, 26 Cal.3d 557, 571-572.
Accordingly, we reject the district attorney's contention that the trial court erred in concluding the prosecution failed to demonstrate good cause to avoid dismissal under section 1382.
IV
For the reasons discussed above, the judgment rendered by the Court of Appeal, upholding the judgment of the trial court, is affirmed.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.