Judge Christian R. Gullon, Case Number: KC070235, Date: 2023-07-21 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

This is a fraud action based on facts that occurred while Plaintiff was a patient of a fertility clinic. Plaintiff XIAOFAN SUN (“Plaintiff”) alleges the following against Defendants YANG YANG (“Yang”) and ZOE FANG (“Fang”) (collectively, “Defendants”): Defendants were employees of the HRC Fertility Clinic. Yang convinced Plaintiff to substitute Yang as the surrogate mother instead of the contracted surrogate mother for the purposing of gaining access to Plaintiff’s money and assets. Fang assisted Yang by making false hand-written entries in the forms that Yang was to be a “co-parent” of the child knowing that being a co-parent was contrary to the agreement between Plaintiff and Yang.

On February 13, 2019, default was entered against Fang. That same day, Plaintiff deposited jury fees.

On October 28, 2020, Yang filed a notice of related case (18PSFL00379) filed on 2/22/18 entitled In re Marriage of. Yang Yang v. Xiofan Sun and related case 19STCV16498 entitled Xiofan Sun v. HRC Fertility Clinic, et al.

On May 10, 2022, a ‘STIPULATION TO CONTINUE JURY TRIAL AND TRIAL-RELATED DATES, INCLUDING DISCOVERY CUT-OFF DATE, AND DEADLINE FOR MOTIONS TO BE HEARD’ was filed indicating that the Jury Trial set for May 17, 2022 is continued to a date not sooner than February 17, 2023.

On May 11, 2022, the Final Status Conference minute order provides that Defense Counsel is to meet and confer with Plaintiff's Counsel to discuss a waiver of the 5-year statute.

On February 27, 2023, the FSC minute order indicates the following: Order to Show Cause Re: Defendant's Failure to Appear on 2/27/2023 is scheduled for 05/15/2023 at 08:30 AM in Department O at Pomona Courthouse South. Defense counsel is to file a declaration in response to the Order to Show Cause at least five court days before the next hearing date. The Final Status Conference is not held. On the Court's own motion, the Final Status Conference scheduled for 02/27/2023 is vacated. On the Court's own motion, the Jury Trial scheduled for 03/07/2023 is advanced to this date and vacated. Trial Setting Conference is scheduled for 05/15/2023 at 08:30 AM in Department O at Pomona Courthouse South.

On April 4, 2023, according to the minute order Re Plaintiff Xiaofan Sun's Notice Of Ex Parte Application And Ex Parte Application For A Judicial Ruling As To Whether Or Not This Case Has Been Stayed Or Enjoined Within The Meaning Of Code Of Civil Procedure, Section 583.340(B), And If Not, For An Order That The Court Specially Set A Jury Trial Date Before The Expiration Of The Five-Year Deadline To Bring Case To Trial, As Mandated By Code Of Civil Procedure, Section 583.310, the court stated that Jury Trial is scheduled for 09/12/2023 at 08:30 AM in Department O at Pomona Courthouse South.

On April 7, 2023, the court issued the following Nunc Pro Tunc Order: “The five-year statue due to expire on 04/24/2023, the Court adds an additional 6 months based on a covid relief given by the Supreme Court. New Statue [sic] date is 10/24/2023.”

On June 8, 2023, during the originally scheduled hearing, the court continued the motion because Defense Counsel was not able to provide an in-person court reporter. The motion was continued to 7/21/23.

California Code of Civil Procedure section 583.310 provides that “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” Accordingly, an action must be brough to trial within five years after it is commenced against a defendant. If it is not, dismissal is mandatory on motion of any party, or on the court’s own motion. (Civil Code of Procedure Section 583.310, 583.360; see Fannin Corp. v. Superior Court of Santa Clara County (1974) 36 Cal.App.3d 745, 749.) The mandatory dismissal statute is founded upon the policy of the diligent prosecution of actions. (Code of Civil Procedure § 583.130.)

The action is “commenced” upon plaintiff's filing the original complaint against the defendant. (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 318.) For purposes of the 5-year statute, an action is “brought to trial” when the jury is sworn; or, in a nonjury trial, when the first witness is sworn. (Hartman v. Santamarina (1982) 30 Cal.3d 762, 765.)

California Code of Civil Procedure section 583.330 provides that “[t]he parties may extend the time within which an action must be brought to trial pursuant to this article by the following means:

a. By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal.

b. By oral agreement made in open court, if entered in the minutes of the court or a transcript is made.”

California Code of Civil Procedure section 583.340 provides that “[i]n computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

c. Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”

Whatever period of time the excuse exists is added onto the 5 years even if plaintiff had adequate time after the excuse terminated to bring the action to trial within the 5-year period. (Chin v. Meier (1991) 235 Cal.App.3d 1473, 1476-1478.)

The premise of Defendant Yang’s motion is that Plaintiff has (1) failed to diligently litigate her case and that (2) the court applied Judicial Council’s Emergency Rule 10, enacted due to the Covid-19 epidemic.[2]

Defendant Yang argues that “[w]hile the Divorce Action has been aggressively prosecuted by Plaintiff, the instant action has remained dormant for years.” (Motion p. 4). To the contrary, Plaintiff has actively participated in the case since its onset.

For example, early on, Plaintiff posted jury fees and successfully sought entry of default as to Defendant Fang. Additionally, according to a September 18, 2018 minute order, settlement negotiations were ongoing. As for discovery, a February 19, 2019 minute order indicates that discovering was still ongoing. And to the extent that Defendant Yang avers it is Plaintiff who has not diligently litigated the case, a review of the minute orders illustrates that it Defendant Yang failed to appear at a few hearings. (See August 13, 2019 Minute Order; See November 13, 2019 Minute Order; and February 27, 2023.) Effectively, it cannot be said that Plaintiff filed an action and merely sat idly by for five years.

Even assuming that this current action could have been pursued more aggressively, the court determines that it was impractical for trial to be heard sooner. Although there is no comprehensive definition of impracticability, “the exception must be judged ‘in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves.’” (Brunzell Constr. Co v. Wagner (1970) 2 Cal.3d 545, 553.) As such, the question of impossibility is best resolved by the trial court, which “is in the most advantageous position to evaluate these diverse factual matters in the first instance.” (Id. at p. 555.) Here, there is an ongoing family law case with respect to legal and physical custody of the minor child. (See Plaintiff’s ex-parte application, p. 6:15-18.) The family law case is presumably more consequential because it involves a child, making it more difficult to prescribe the appropriate time, energy, and emotion to this civil matter. It is for that reason that resolving this action would have been impracticable within the meaning of CCP section 583.340 subdivision (c) such that the new trial date falls within an exception of the mandatory period.[3]

Next, Defendant Yang argues the court incorrectly accepted Plaintiff’s contention that Emergency Rule 10 was applicable and therefore extended the five-year (under Code of Civil Procedure § 583.310) by six months.

At the outset, Defendant Yang’s motion reads as a motion for reconsideration. (Opp. pp. 4-5.)[4] As Yang states in her motion, “Defendant respectfully maintains that the Court, in extending the five-year statutory term set by Civil Code of Procedure Section 583.310, on the basis of Emergency Rule 10, abused of its discretion” (Opp. p. 4:18-20) despite “Defendant’s opposition and objections” during the April 4, 2023 ex-parte hearing. (Motion p. 3:10-11.) But there are no “new or different facts, circumstances, or law” (Civil Procedure section 1008) making a motion for reconsideration improper.

Even assuming arguendo reconsideration of the court’s order is procedurally proper, Defendant’s calculation is incorrect. Defendant relies upon Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823 (Ables).[5] In Ables, the trial court granted the plaintiff’s request to extend the five-period by six months, but in doing so, the trial court erroneously set a trial date that fell five years and seven months after the action was commenced, making it untimely even with Emergency Rule 10’s extension. (Id. at p. 825, italics original.) Here, however, the current trial date of October 24, 2023 is still within five years and six months of the commencement of the present case [April 24, 2018 to April 24, 2023 is five years plus six months is October 24, 2023]. Therefore, Defendant Yang has failed to establish that Emergency Rule 10 does not apply.

Based on the foregoing—as either impracticality or COVID-19 tolling apply—the court DENIES Defendant Yang’s motion to dismiss the case.

[1] Plaintiff’s opposition briefly alludes to the request for monetary sanctions for Defendant’s failure to withdraw the “meritless” and “frivolous” motion. (Opp. p. 7.) However, as neither the opposition nor Plaintiff’s Counsel make it clear that such relief is sought, monetary sanctions will not be imposed upon Defendant Yang and her counsel.

[2] In response to the COVID-19 Pandemic, the Judicial Council of California enacted emergency rules. Emergency Rule 10, subdivision (a), provides: “Notwithstanding any other law, including¿Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total of five years and six months.” (Cal. Rules of Court, Appen. I, Emergency Rule 10(a).)

[3] Though impracticability was raised by Plaintiff in the opposition, Defendant’s reply does not address the point.

[4] Additionally, Defendant’s filing of the instant motion a couple of weeks after the court’s order perhaps further evidences Defendant’s intentions of the court revisiting its order.

[5] Based on a review of Plaintiff’s April 4, 2023 ex-parte application, it appears the parties brought the Ables case to the court’s attention prior to the court setting the trial date. (See Plaintiff’s Ex-Parte, p. 12.)