The trial court did not abuse its discretion in dismissing this wage and hour class action for failure to bring it to trial within 5 years.  Contrary to plaintiff’s contention, the tolling due to an unsuccessful removal of the case to federal court lasted only from the filing of the notice of removal until the district court sent notice of remand, even though defendants took what was ultimately an unsuccessful appeal of the CAFA removal.  State court jurisdiction is not stayed (absent a special order to that effect) by the appeal, and plaintiffs didn’t show any reason why they didn’t pursue discovery and proceed with their case in state court pending the appeal.  Defendants’ delay in responding to the discovery of emails about the extent of class members’ independence and discretion on the job—relevant to whether they were exempt employees—did not make it impractical for plaintiffs to proceed with class certification and trial.  Plaintiff’s attorneys should have known that evidence would be needed long before they asked for it, and then they didn’t pursue the discovery diligently.

California Court of Appeal, Second District, Division 7 (Perluss, P.J.); August 1, 2018; 26 Cal. App. 5th 783