Judge: Holly J. Fujie, Case: BC546925, Date: 2023-03-07 Tentative Ruling

Case Number: BC546925    Hearing Date: March 7, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTIES: Plaintiffs/Cross-Defendants Sealutions, LLC (“Sealutions”) and The Grain Collective, LLC (“TGC”) (collectively, the “LLC Defendants”) and Plaintiff Cross-Defendant Nicholas Behunin (“Behunin”) (collectively, “Moving Cross-Defendants”)

RESPONDING PARTY: Cross-Complainants Michael Schwab, Big Sky Venture Capital III, LLC, and Big Sky Real Estate, LLC (collectively, “Cross-Complainants”)

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

            Moving Plaintiffs/Cross-Defendants initiated this action on May 28, 2014.  Cross-Complainants filed a cross-complaint (the “XC”) on January 29, 2015.  On March 18, 2022, Moving Cross-Defendants and Cross-Complainants (the “Parties”) entered into a stipulation pursuant to California Code of Civil Procedure (“CCP”) section 583.330, subdivision (a) to extend the time within which to commence the trial on the XC to September 30, 2022. 

            On September 26, 2022, the LLC Cross-Defendants filed for Chapter 7 bankruptcy and each filed a Notice of Stay of the action pending the resolution of their Chapter 7 cases pursuant to 11 U.S.C. § 362.  On September 27, 2022, the Court ordered the entire case to be stayed with respect to all Parties. 

            On January 13, 2023, during a status conference, the Court learned that the LLC Defendants’ bankruptcy petitions were dismissed and that the mandatory stay under 11 U.S.C.  section 362 was lifted.  Following the January 13, 2023 status conference, the Court issued a minute order that reset the trial date for March 13, 2023.  

            On February 8, 2023, the LLC Defendants filed a motion to dismiss the XC (the “LLC Motion”) and on February 9, 2023, Behunin filed a motion to dismiss the XC (the “Behunin Motion”) (collectively, the “Motions”).  The Motions argue that the XC should be dismissed in its entirety because the statutory deadline for the commencement of trial has expired.

DISCUSSION

Under CCP section 583.310 provides that an action shall be brought to trial within five years after the action is commenced against the defendant.  (CCP § 583.310.)  In 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: (a) the jurisdiction of the court to try the action was suspended; (b) prosecution or trial of the action was stayed or enjoined; or (c) bringing the action to trial, for any other reason, was impossible, impracticable, or futile.  (CCP § 583.340, subds. (a)-(c).)

If the time within which an action must be brought to trial is tolled or otherwise extended pursuant to statute with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial, the action shall not be dismissed pursuant to this article if the action is brought to trial within six months after the end of the period of tolling or extension.  (CCP § 583.350.)  The tolling provisions CCP section 583.340 must be liberally construed consistent with the policy favoring trial on the merits.  (Dowling v. Farmers Ins. Exch. (2012) 208 Cal.App.4th 685, 693.)

Here, the matter was tolled three days before the expiration of the September 30, 2022 deadline to commence the trial to which the Parties stipulated.  Moving Cross-Defendants argue that the XC must be dismissed because the current trial date is more than three days after the stay was lifted.  Behunin additionally argues that there is no authority for extending the statutory deadline or further tolling the deadline against him because the Court’s decision to stay the matter in its entirety, rather than only as to the LLC Defendants, was discretionary.

The Court is not convinced by the Motions’ arguments.  It is not disputed that the current trial date is under six months after the stay was lifted.  The Court’s not citing to CCP section 583.350 when it issued the stay does not factor into the statute’s applicability.  With respect to Behunin, the Court notes that while the stay was discretionary as applied to him, the Court imposed it in the interest of judicial efficiency and practicality.  The Court therefore DENIES the Motions.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 7th day of March 2023