Judge Kerry Bensinger, Case Number: BS173769, Date: 2024-10-02 Tentative Ruling

CASE REVIEW RE: FILING OF MOTION RE: PROOF OF SERVICE/DISCOVERY ISSUES/TRIAL TOLLING PERIOD

On May 24, 2018, Plaintiff Tristram Buckley (Buckley) initiated this action (Case No. BS173769) against Defendant Lena Katina arising from a ruling favorable to Katina by the Labor Commissioner regarding am oral management contract between the parties.

On April 25, 2013, Plaintiff Tristram Buckley (Buckley) filed a complaint against Lena Katina (Katina) and other defendants in the Los Angeles Superior Court, Case No. BC510762, arising from an alleged breach of an oral management contract.

On April 20, 2016, Katina filed a petition to Determine Controversy with the California Labor Commissioner to have the contract declared illegal and void based upon Buckley’s alleged violations of the Talent Agencies Act.

On May 24, 2018, Buckley filed this Notice of Appeal of the Determination of the Controversy in this matter (Case No. BS173769)[1].

On August 11, 2020, Judge Orozco stayed this (Case No. BS173769) pending the outcome of the appeal in the related case, Case No. BC510762. The remittitur issued on December 11, 2020.

On May 25, 2021, Judge Orozco ordered the parties to file briefs to address the scope of trial de novo.

On June 28, 2021, Counsel for the parties appeared at a Status Conference Re: Poceedings; Case Management Conference.

On July 9, 2021, Katina filed an objection and opposition to Buckley’s declaration.

On August 11, 2023, Judge Murillo ruled that Katina made a general appearance by filing a case management statement on 6/14/21, counsel’s appearance at the conference on 6/28/21, and filing briefs and opposition on 6/17/21 and 7/09/21.

Accounting for Judge Orozco’s stay pending the appeal in Case No. BC510762 (3 months) and the automatic extension pursuant to Covid emergency rules (6 months), the deadline to bring this case to trial was February 24, 2024.

The deadline has passed. The court now considers whether dismissal of this case is proper pursuant to Code of Civil Procedure section 583.340, subdivision (c) or whether time should be tolled.

Buckley argues this case should be equitably tolled because it has been impossible and impracticable to prosecute this action. In support, Buckley makes the following points: (1) critical witnesses and evidence are located in Russia, including Katina, (2) mail service is temporarily unavailable due to the Russian invasion of Ukraine, (3) the United States and Russie are in a proxy war, and (4) the United States State Department has declared Russia to be unsafe for travel.

Sections 583.310-583.360, which govern the mandatory dismissal of actions for failure to prosecute within five years of filing an action, are contained in chapter 1.5, of title 8, of part 2 of the Code of Civil Procedure. Section 583.130 states the general policies to be considered when applying the statutes that govern the dismissal of actions for delay in prosecution: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.”

Under section 583.310, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” An action is “commenced” when a plaintiff files their original complaint. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723 (Bruns).) A case not brought to trial within five years is subject to dismissal, either upon a noticed motion by the defendant or on the court's own motion. (§ 583.360, subd. (a).) Dismissal is “mandatory and ... not subject to extension, excuse, or exception except as expressly provided by statute.” (§ 583.360, subd. (b).) “Under the press of this statutory requirement, anyone pursuing an ‘action’ in the California courts has an affirmative obligation to do what is necessary to move the action forward to trial in timely fashion.” (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313.)

Section 583.340 provides certain exceptions “shall be excluded” from the period of time in which an action must be brought to trial. As relevant here, section 583.340, subdivision (c), provides that the time during which “[b]ringing the action to trial ... was impossible, impracticable, or futile” shall be excluded “[i]n computing the time within which an action must be brought to trial.”

The legislature adopted section 583.340 in 1984 as proposed in a report by the California Law Revision Commission without change. (See 17 Cal. Law Revision Com. Rep. (1984) pp. 905, 935.) Thus, the commission's report is entitled to substantial weight in construing the statute. (Sierra Nev. Memorial-Miners Hosp. v. Superior Court (Hudson) (1990) 217 Cal.App.3d 464, 469 (Sierra).)

In proposing a set of revised statutes to govern the dismissal of actions for lack of prosecution, the commission stated, “[t]he cases have developed exceptions to the rules requiring dismissal and have added court discretion in many cases where it appears that the delay is excusable. The statutes should accurately state the law. The proposed law codifies the significant case law rules governing dismissal for lack of prosecution in the manner described below.” (17 Cal. Law Revision Com. Rep., supra, at pp. 915-916, fn.omitted.)

According to the commission's notes regarding section 583.340, subdivision (c), it “codifies the [pre-adoption] case law ‘impossible, impractical, or futile’ standard. The provisions of subdivision (c) must be interpreted liberally, consistent with the policy favoring trial on the merits. See Section 583.130 (policy statement).” (17 Cal. Law Revision Com. Rep., supra, at p. 936.)

However, one of the commission's notes expressly states that section 583.340 is intended to overrule one aspect of some of the prior decisions. It states, “[u]nder section 583.340 the time within which an action must be brought to trial is tolled for the period of the excuse, regardless [of] whether a reasonable time remained at the end of the period of the excuse to bring the action to trial. This overrules cases such as State of California v. Superior Court [(1979)] 98 Cal.App.3d 643, 159 Cal.Rptr. 650, [ ], and Brown v. Superior Court [(1976)] 62 Cal.App.3d 197, 132 Cal.Rptr. 916[ ].” (17 Cal. Law Revision Com. Rep., supra, at p. 936.) According to the commission's report explaining its recommendation, under the law prior to the adoption of the revised statutes, “if the impossibility, impracticability, or futility ended sufficiently early in the statutory period so that the plaintiff still had a ‘reasonable time’ to get the case to trial, the tolling rule [did not] apply. [Section 583.340] change[d] this rule so that the statute tolls regardless when during the statutory period the excuse occurs. This is consistent with the treatment given other statutory excuses; it increases certainty and minimizes the need for a judicial hearing to ascertain whether or not the statutory period has run.” (17 Cal. Law Revision Com. Rep., supra, at p. 919, fns. omitted.)

Thus, our Supreme Court has observed when discussing the commission's notes, under section 583.340, “a condition of impossibility, impracticability, or futility need not take the plaintiff beyond the five-year deadline to be excluded; it will be excluded even if the plaintiff has a reasonable time remaining after the period to bring the case to trial.” (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1101 (Gaines).) However, the new statutes left “as a viable precedent the applications of the existing cases” as to how to determine whether a condition creates an “impossibility, impracticability, or futility.” (Sierra, supra, 217 Cal.App.3d at p. 471.)

In deciding whether the section 583.340, subdivision (c), exception has been met, “the court must consider ‘ “all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.” ’ (Bruns, [supra, 51 Cal.4th] at p. 730, quoting Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216 [ ][ (Moran)].)” (Gaines, supra, 62 Cal.4th at p. 1100.)

This is so because “case law both predating and postdating the 1984 statutory revision has long held that ‘[f]or the tolling provision of section 583.340[(c)] to apply, there must be “a period of impossibility, impracticability or futility, over which plaintiff had no control,” ’ because the statute is designed to prevent avoidable delay. [Citations.]” (Gaines, supra, 62 Cal.4th at p. 1102.)

As such, “[a] plaintiff's reasonable diligence alone does not preclude involuntary dismissal; it is simply one factor for assessing the existing exceptions of impossibility, impracticability, or futility. (Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532–1533, 255 Cal.Rptr. 781 [ ].) ‘ “[E]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation.” [Citation.]’ (Sierra[, supra,] 217 Cal.App.3d [at p.] 472.) ‘Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions.’ (Baccus, at p. 1532.) Determining whether the subdivision (c) exception applies requires a fact-sensitive inquiry and depends ‘on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles.’ (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438, 41 Cal.Rptr.2d 362, 895 P.2d 469 [ ].) ‘ “[I]mpracticability and futility” involve a determination of “ ‘excessive and unreasonable difficulty or expense,’ ” in light of all the circumstances of the particular case.’ (Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 554, 86 Cal.Rptr. 297, 468 P.2d 553 [ ].)” (Bruns, supra, 51 Cal.4th at p. 731.)

In Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 326, 328, 54 Cal.Rptr.3d 175 (Tamburina), this court identified three factors to be considered when deciding if dismissal is proper under section 583.340, subdivision (c). To apply the section 583.340, subdivision (c), exception, a plaintiff must show (1) a circumstance establishing impossibility, impracticability, or futility; (2) a causal connection between the circumstance and the failure to move the case to trial; and (3) that they were “reasonably diligent in prosecuting [their] case at all stages of the proceedings.” (Tamburina, supra, 146 Cal.App.4th at p. 326; see also Bruns, supra, 51 Cal.4th at p. 731, [citing Tamburina regarding what one must prove to show impossibility, impracticability, or futility]; Tanguilig v. Neiman Marcus Group, Inc., supra, 22 Cal.App.5th at p. 323.)

Here, Buckley shows a circumstance establishing impossibility or impracticability (suspension of mail service and the war conflict). The first element is satisfied. Buckley likewise establishes a causal connection between the circumstances and the failure to move the case to trial. The lack of mail service and the war conflict has impaired Buckley’s ability to conduct discovery. The second element is also satisfied.

However, Buckley does not satisfy the third element of the inquiry: whether he was reasonably diligent in prosecuting his case at all stages of the proceedings. (Tamburina, supra, 146 Cal.App.4th at p. 326.) Buckley does not make a sufficient showing demonstrating his efforts to advance this case to trial prior to the temporary suspension of mail service to Russia (Buckley asserts the suspension has been in effect since March 11, 2022) and the Russian invasion of Ukraine (on February 24, 2022). The time from the filing of the case on May 24, 2018 until the earlier of the suspension dates (February 24, 2022) is roughly four years without any showing of diligence. Nor does Buckley make any showing of his efforts, if any, to overcome the obstacles presented by the mail service suspension and war conflict.

Notably, Buckley made no independent efforts to alert the court of the challenges with bringing this case to trial. For instance, in response to an order to show cause re: filing of proof of service on July 7, 2023 (after mail service had been suspended and the Ukraine invasion began), Buckley filed a declaration explaining why the court had personal jurisdiction over Katina. There is no mention of the status of the case, and specifically, that obstacles were impeding Buckley’s ability to move it forward. (See Buckley Decl., filed 6/20/23.)

Plaintiff cites Frabutt v. New York, C. & St. L. R. Co. (W.D. Penn. 1949) 84 F. Supp. 460 for the proposition that international law provides tolling of matters where there is an ongoing war between two countries. In Frabutt, an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the wife of the deceased workman filed a claim after the three-year limitation had run. In deciding that the limitation period was suspended during the period of disability, the court stated: “It appears by a firmly established principle of international law that the existence of a state of war between two countries or powers is effective to suspend the running of statutes of limitations as between the citizens of such countries or powers at war, or, as it has been otherwise stated, war suspends the statute of limitations against alien enemies resident in enemy territory. On the restoration of peace all rights suspended during hostilities, or which remain dormant, are revived, and the statute of limitations again becomes operative. The rule suspending the running of limitations during war is one of international law which the courts attach to, or read into, statutes of limitations, though it is not expressed in them; and it is applicable irrespective of whether the limitation in the particular statute of limitations is considered to be a limitation of the right or liability, or of the remedy.” (Frabutt, at p. 464.)

Frabutt is distinguishable. Frabutt does not apply the standard which has been distilled in Tamburina. And more to the point, Frabutt does not discuss at all the diligence requirement. Having failed to demonstrate diligence in bringing this case to trial at all stages of the proceeding, the court is not persuaded the exceptions to the five-year bar under Section 583.340 apply.

Kerry Bensinger

Judge of the Superior Court

[1] This filing starts the “five year” clock in this matter.