Judge: Joel R Wohlfeil, Case: 37-2018-00051242-CU-FR-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2018-00051242-CU-FR-CTL BISCHOFF VS BALIBAT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Ex

Parte Application - Other and Supporting Documents, 10/25/2023 The Motion (ROA # 138) of Defendant LESTER BALIBAT ('Defendant' or 'BALIBAT') for dismissal of this case filed by Plaintiff PATRICK BISCHOFF ('Plaintiff'), is GRANTED.

This ruling completely disposes of this action and Defendant is ordered to submit a proposed judgment.

An action shall be brought to trial within five years after the action is commenced against the defendant.

Code Civ. Proc. 583.310.

If not brought to trial in this time, dismissal is mandatory on motion of any party, or on the court's own motion. Code Civ. Proc. 583.360.

In computing the time within which an action must be brought to trial, 'there shall be excluded the time during which any of the following conditions existed: ...¶ ... trial of the action was stayed ... ¶ [or] ...

[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.' Code Civ.

Proc. 583.340.

The opinion in Lauriton v. Carnation Co. (1989) 215 Cal. App. 3d 161 is directly on point, and states as follows: 'An action must be brought to trial within five years after it is commenced against the defendant. (§ 583.310.) Dismissal is mandatory subject only to extension, excuse, or exception provided by statute. (§ 583.360.) In computing the five-year period, the time during which (1) the jurisdiction of the court to try the action was suspended, (2) prosecution or trial of the action was stayed or enjoined, or (3) bringing the action to trial was 'impossible, impracticable, or futile', is excluded. (§ 583.340.) A trial court's ruling on a motion to dismiss pursuant to these sections will be disturbed only upon a showing of a manifest abuse of discretion ....

Appellant contends his bankruptcy suspended the superior court's jurisdiction over the case.

Although generally all causes of action possessed by a bankrupt vest in the trustee ..., the bankruptcy itself does not divest the superior court of jurisdiction. The trustee is not stayed from prosecuting actions .... The trustee 'may intervene in the action or may move to be substituted as party plaintiff.' (Wood v. Lowe, supra, 39 Cal. App. 3d 296, 301.) Although appellant was not authorized to personally prosecute the action without authorization from the bankruptcy court ..., the superior court retained jurisdiction.

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3046463 CASE NUMBER: CASE TITLE:  BISCHOFF VS BALIBAT [IMAGED]  37-2018-00051242-CU-FR-CTL Similarly, this action was not stayed during the bankruptcy. 'The Bankruptcy Act provides that the commencement or continuation of any legal proceeding against the debtor is automatically stayed by the filing of a petition in bankruptcy, until adjudication or dismissal of the petition.' (Danielson v. ITT Industrial Credit Co., supra, 199 Cal. App. 3d 645, 652.) However, a debtor's cause of action is not tolled by the filing of a bankruptcy petition. (Ibid.) As noted above, the trustee may prosecute actions on behalf of the debtor.

Finally, appellant contends that during his bankruptcy it was impossible, impracticable or futile for him to prosecute this action. What is impossible must be determined 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 .... The critical factor in applying this exception to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting the case .... To establish reasonable diligence, the plaintiff must be able to demonstrate diligence in pursuit of his duty to expedite the resolution of the case at all stages of the proceedings, including the specific duty to use every reasonable effort to bring the matter to trial within the five-year period .... The plaintiff has the burden of proving it was impossible to bring the action to trial within five years....

As noted above, the bankruptcy trustee, not appellant, had the legal capacity to prosecute this action during the bankruptcy .... However, the situation was not totally out of appellant's control. Appellant could have sought relief from the bankruptcy court, such as (1) an order permitting the trustee to prosecute this lawsuit in appellant's name, (2) an order compelling the trustee to maintain the action, (3) an order authorizing appellant to prosecute the action on his own behalf, or (4) a formal order of abandonment .... Since appellant did not use every reasonable effort to bring the action to trial, he did not exercise reasonable diligence in prosecuting this case. Thus, the trial court was correct in not excluding the time appellant was in bankruptcy from the five-year period under sections 583.310 and 583.340.' Id. at 163 – 165 (most internal citations omitted); see also Shah v. Glendale Federal Bank (1996) 44 Cal. App. 4th 1371, 1373 ('We conclude the automatic stay provision is inapplicable because the debtors commenced this action in the superior court and have filed the notice of appeal.') and Shorr v. Kind (1991) 1 Cal. App. 4th 249, 254 ('However, a debtor's cause of action is not tolled by the filing of a bankruptcy petition.').

This action was initially filed on September 27, 2018. Thus, five years elapsed, and trial has not been initiated. The bankruptcy stay was inapplicable and bringing this action to trial was not 'impossible, impracticable, or futile.' Although Plaintiff's bankruptcy trustee has the legal capacity to prosecute the action against the Defendant during the bankruptcy, the situation was not out of Plaintiff's control.

Plaintiff could have sought relief from the bankruptcy court to order the trustee to prosecute this case or to authorize Plaintiff to maintain the action on his own behalf. Plaintiff chose not to pursue these options and this action is now barred.

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