Judge: Margaret L. Oldendorf, Case: EC059570, Date: 2023-01-05 Tentative Ruling

Case Number: EC059570    Hearing Date: January 5, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This is an action by an employee against her former employers to collect unpaid wages. It was filed in November 2012. For a variety of reasons, the case has been pending for over a decade now. Defendants seek an order of dismissal pursuant to both the mandatory five-year and discretionary two-year dismissal rules. However, the five years to bring the case to trial have not yet expired as to any defendant, and insufficient notice was provided for discretionary relief. The motion is therefore denied.

II.        LEGAL STANDARD

            “An action shall be brought to trial within five years after the action is commenced against the defendant.” Code Civ. Proc. §583.310. Section§583.360 provides that an action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.

            In calculating the five-year limit, the following time periods are excluded:

            (a) the jurisdiction of the court to try the action was suspended;

            (b) prosecution or trial of the action was stayed or enjoined;

            (c) bringing the action to trial, for any other reason, was impossible, impractical, or             futile. Code Civ. Proc. §583.340.

            California Rules of Court, Temporary Emergency Rule 10(a), which was enacted as a result of the Covid-19 pandemic, extends the five-year rule by six months.

            Code Civ. Proc. §583.420(a)(2)(B) provides for discretionary dismissal when an action is not brought to trial within two years. A motion seeking such relief must be made on 45 days’ notice. California Rules of Court, rule 3.1342(a).

            The time during which a default judgment has been entered against a defendant is excluded from the five-year period because during such time (after judgment and prior to relief from judgment), it is impossible to prosecute the action. The period of time between entry of default and default judgment may or may not be excluded in the court’s discretion, based on whether the plaintiff acted with reasonable diligence to secure judgment during such time. Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438-439.

            Here, because Plaintiff submitted papers for the entry of default and default judgment on the same day, and because only two months elapsed between default and default judgment, the Court finds that it is appropriate to exclude the entire time period starting from the entry of default.

            The bankruptcy stay of one defendant does not normally stay the case as to non-debtors. Totten v. Kellogg Brown & Root, LLC (2016) 152 F.Supp.3d 1243, 1268; Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979.

III.      ANALYSIS

            A. Time Chart For Five-Year Calculation

            The Court calculates the time periods as to each defendant as follows:          

            Five years is 1,825 days.   

            As to Robert Madatian, the time ran from November 28, 2012 – February 7, 2014 (436 days) and from July 6, 2021 – January 20, 2022 (198 days).   Total time elapsed as to Robert Madatian: 436 + 198 = 634 days.

The time to bring the case to trial as to Robert is 1,190 days [1825-634= 1,191], plus the six months under the Emergency Rule, for a total of 1,371 days.

            This same calculation applies to the entity defendants.        

            As to Vardoui Madatian the time ran from November 28, 2012 – February 7, 2014 (436 days) and from May 6, 2020 to January 20, 2022 (624 days). The order relieving her from default did not restart the clock because she was still in bankruptcy, but Plaintiff obtained relief from the bankruptcy court on May 6, 2020.

Total time elapsed as to Vardoui Madatian is 436 + 624 = 1,060 days.

The time to bring the case to trial as to Vardoui Madatian is 765 days [1825-1060=765] plus the six months under the Emergency Rule, for a total of 945 days.     

            Thus, the five years in which to bring this case to trial has not yet expired as to any defendant.

            B. Motion For Discretionary Dismissal Is Denied

            Defendants filed and served this motion on November 7, 2022. This does not comply with the required 45 days’ notice for dismissal under the two-year rule articulated in Code Civ. Proc. §583.420. The request is denied on that basis.

            However, even if the Court were to reach the merits as to this aspect of Defendants’ motion, it would decline to exercise its discretion to dismiss the action. Under the unique circumstances of this case (and as addressed in the supplemental briefing), the Court declines to find that the Plaintiff has failed to act with diligence in pursuing her claims.

IV.      CONCLUSION AND ORDER

            The Defendants’ motion to dismiss is denied. Plaintiff is ordered to give notice.     

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF