When we ranked Trejo v. Johnson & Johnson, 220 Cal. Rptr. 3d 127 (Cal. App. 2017), as the second best drug or medical device case of 2017, we celebrated the opinion as the first to rule that federal law preempted a design defect claim involving an over-the-counter drug. We did not expect to be writing about the case again more than seven years later. And, we especially did not expect to be reporting that the case—which resulted the first time around in a $55 million verdict—was dismissed with prejudice because the plaintiff did not bring it to retrial on remand before time ran out. That is exactly what happened, and the Court of Appeal recently affirmed that result in Trejo v. Johnson & Johnson Consumer, Inc., No. B324219, 2025 WL 2474870 (Cal. Ct. App. Aug. 28, 2025) (unpublished).
You see, when a judgment in California is reversed on appeal and remanded for a new trial, the plaintiff has three years to get it again to trial. Cal. Civ. Proc. Code § 583.320. In Trejo, the design claims were gone, but this plaintiff still had non-preempted claims for failure to warn—and he had three years to take his second bite at the jury apple. Deadlines to get cases to trial, both before and after appeal, are well established in California, and every judge, court clerk, and litigator in the state is aware that the deadlines mean business. Dockets are managed, schedules are adjusted, deals are made, and hoops are jumped through to ensure that the allotted time does not expire.
All of this was true in Trejo, yet the plaintiff still managed to miss the deadline—in a case involving alleged injuries that already moved one jury to award a handsome sum. (The alleged injuries were Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis.) Worse yet, the deadline came and went because of a series of miscues and delays that the court attributed to the plaintiff.
The trial deadline on remand was April 20, 2021, following an automatic six-month COVID extension. Proceedings on remand, however, were extensive, with more than twenty new expert reports and additional depositions. On May 17, 2021—which we are sure you noticed is beyond the deadline—the parties submitted joint trial submissions, which the court rejected as deficient for multiple reasons. The parties re-submitted, but the court this time noticed that the action appeared to be subject to mandatory dismissal because it was beyond the deadline for retrial.
The plaintiff, however, caught a break. In November 2021, the court ruled that it would have been “impossible, impracticable, or futile” to bring the case to trial because of COVID-related court delays, so it imposed a new retrial deadline of February 1, 2022. The plaintiff responded by serving another expert report with new opinions and requesting another six-month extension, which the defendant opposed.
The court thus suggested a well-known work around: Commence the trial before February 1, 2021, by swearing a jury, which satisfies the statutory deadline, and then adjourning the trial to a future date TBD. Rather than accepting the court’s suggestion, the parties stipulated to extend the deadline again, and then again, and then again. Ultimately, the parties agreed to a retrial deadline of July 22, 2022, with the defendant reserving all objections. Put a pin in that date.
While all this was going on, the plaintiff continued to make things difficult. To start with, the plaintiff moved to disqualify the judge for cause twice because the judge was purportedly biased against him. The court rejected these attempts, while also holding 11 days of hearings to consider motions in limine, jury instructions, verdict forms, etc. The plaintiff raised new and unbriefed legal arguments on multiple issues, and he attempted to interject new facts throughout the hearings. The plaintiff violated court orders governing pretrial filings, and he missed some deadlines while receiving multiple extensions for others.
Perhaps sensing that the court’s patience was wearing thin, the plaintiff moved to disqualify the judge for bias for a third time, which the court set for hearing on July 19, 2022, along with other pretrial issues. When reminded that the stipulated retrial deadline was July 22, 2022, the court replied that “it shouldn’t be a problem, right? 22nd. We’re going to be back on the 19th.”
On July 18, 2022, the court struck the third motion to disqualify and continued the pretrial hearing from July 19 to July 27, 2022.
You can see where this is headed. On July 25, the defendant moved to dismiss the case, which the court granted in a 60-page order observing that it was difficult “to adequately describe the volume and frequency of the filings and the time necessary to read, research, prepare tentative rulings and conduct days of hearings that were caused by the cycle of briefing, rebriefing, late briefs, arguments, and re-arguments in this case . . . primarily caused” by the plaintiff.
The Court of Appeal affirmed. First, the court’s order continuing the pretrial hearing from July 19 to July 27 did not toll the deadline for those eight days, mainly because the court’s dismissal order was based on a recurring pattern of noncompliance and delay. The plaintiff also could not apply equitable estoppel against the court based on the court’s assurance that “it shouldn’t be a problem,” because equitable estoppel does not apply against courts and because the plaintiff was not urging an equitable result anyway, particularly considering his lack of diligence.
Second, the plaintiff’s multiple motions to disqualify the judge for cause did not toll the time period, either. The court took 27 days to consider and reject the various motions, but there is no authority holding that those motions made it impracticable to move the case toward trial. Nothing prevented the plaintiff from trial preparation during that time.
Third, the plaintiff argued that the court was dark for 11 days in June and July to work on another case and “because of a pre-planned vacation.” As you might expect, this argument did not land. Ordinary delays like these are not bases for tolling.
Ultimately, the Court of Appeal ruled that the plaintiff’s arguments failed to acknowledge that delays were caused by his own late or deficient filings. We have all seen this happen: Plaintiffs playing fast and loose, and often getting away with it. In this court’s view, this plaintiff pushed it too far.