Judge: Mark A. Young, Case: 19STCV25769, Date: 2025-04-18 Tentative Ruling

Case Number: 19STCV25769    Hearing Date: April 18, 2025    Dept: M

CASE NAME:           Fattorini, et al., v. Merriman, et al.

CASE NO.:                19STCV25769

MOTION:                  Motions to Dismiss

HEARING DATE:   4/18/2025

Legal Standard

Pursuant to Code of Civil Procedure section 583.310, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” “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. (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”  (CCP § 583.340.) “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.” (CCP § 583.360(a).)

ANALYSIS

Defendants, 6417 Selma Hotel, LLC; 6417 Selma Hotel Mezz, LLC; Hollywood International Regional Center-Selma LP; Hollywood International Regional Center, LLC; Tao Group Holdings, LLC; TG Hospitality Group LLC; and the Highlight Room (hereinafter, the “Selma Defendants”) move for mandatory dismissal under section 583.360(a). Defendant Elias Wehbe likewise moves for mandatory dismissal. Defendant Sunset Wilcox LLC dba the

Warwick and Sunset Wilcox LLC (hereinafter, the “Warwick Defendants”) join Wehbe’s and the Selma Defendant’s motions.

            The Court does not found grounds for mandatory dismissal. On its face, this action has been pending for more than five and a half years. This action was filed on July 19, 2019. Including today’s hearing, the action was pending for approximately 2100 days, or 5 years and 9 months. The Court also finds no period of non-discretionary tolling applies in this action. (CCP §583.340(a)-(b).) There were no periods of time, applicable to these moving Defendants, where jurisdiction of the court to try the action was suspended or prosecution or trial of the action was stayed or enjoined. Contrary to Plaintiffs’ contentions, the bankruptcy stay as to Merriman and the defaults of the non-moving defendants (including Merriman) did not prevent the action from going to trial. (See San Ramon Valley Unified School Dist. v. Wheatley-Jacobsen, Inc. (1985) 175 Cal.App.3d 1050, 1056-1057 [bankruptcy stay of action against one of several codefendants does not itself excuse plaintiff's delay in bringing the action to trial against the others]; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438 [a reasonable period of time between entry of defendant's default and entry of the default judgment should also be excluded from calculation of the 5-year period].) That said, upon examination of the entire record, there are at least six months in the past year where bringing the action to trial was impracticable under 583.310 subdivision (c).

The provisions of subdivision (c) must be interpreted liberally, consistent with the policy favoring trial on the merits. (CCP § 583.130.) A plaintiff has a duty to exercise reasonable diligence to ensure that a case is brought to trial or other conclusion within statutory time constraints. (Hughes v. Kimble (1992) 5 Cal.App.4th 59.) “The burden is on plaintiffs to first establish in the trial court, by clear and convincing proof, the existence of either impossibility, impracticability or futility of bringing the matter to trial within five years. Absent such a showing, the five-year statute applies without any further consideration or determination of prejudice. What is impossible, impracticable or futile 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 these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.” (Lane v. Newport Bldg. Corp., (1986) 176 Cal. App. 3d 870, 873, internal citations and quotations omitted.) This duty requires plaintiff to use “every reasonable effort” to bring the matter to trial within the five-year period. (Tejada v. Blas (1987) 196 Cal. App. 3d 1335, 1340.) 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. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1272.)

Here, the Court concludes that the January fires in Los Angeles and the specific effects of those fires on Plaintiff’s counsel rendered it impracticable to bring the action to trial for at least six weeks, beginning on January 7, 2025, and through February 18, 2025. (Bassell Decl., ¶¶ 36-40.) Impracticability may be shown under similar circumstances, for example, by the death, illness or incapacity of plaintiff’s counsel. (Sierra Nevada Memorial-Miners Hosp., Inc. v. Sup.Ct. (1990) 217 Cal.App.3d 464, 473; see Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 330 [generally, this would occur when plaintiff's or plaintiff's counsel's illness or incapacity occurs either a) at the end of the 5-year period in circumstances in which it is likely that counsel, but for the illness, would have brought the matter to trial or b) an unusually lengthy illness of plaintiff's sole counsel deprives plaintiff of a substantial portion of the 5-year period].) Here, this incapacity arose at the very end of the 5.5-year period. But for the recent tragedy outside of counsel’s control, trial would have likely begun prior to the expiration of the statutory period. Thus, the statutory period would be tolled for at least the six weeks where it would have been impracticable for counsel to bring this action to trial following the fires.

            Most critically, Plaintiffs made every diligent and reasonable effort during the entire action to bring the action to trial. Unlike cases where no impracticability could be found, Plaintiffs have been ready to proceed with trial since November 2023 and consistently sought to proceed with trial for over that 1.5-year period. (Bassell Decl., ¶¶ 44-45.) The record strongly indicates that the lack of trial assignment was outside of Plaintiffs’ counsel’s control. Plaintiffs show that they diligently submitted and re-submitted joint long cause trial packets throughout 2024. On its independent review, the Court can only find trivial errors or minor defects which should not have impeded trial and which were beyond Plaintiffs’ control. For example, Dept. 1 repeatedly rejected the joint long cause packets for minor errors in Defendants’ exhibit labels and because of the lack of Defendant Maass’s signature. During this period, Plaintiffs made reasonable efforts to correct the minor errors in the joint trial documents, as well as formal and informal efforts to obtain Maass’s signature. (Id.) Thus, the Court is also inclined to find a period of impracticability, beyond Plaintiffs’ control, which caused the parties to miss the statutory period. This period of impracticability would start on April 4, 2024, when Plaintiffs submitted a joint long cause trial packet with no significant errors attributable to Plaintiffs, through September 9, 2024, when Dept. 1 rejected the packet due to a single defense exhibit (no. 308) being mislabeled. The statutory period would therefore be tolled by 5 months.

The total impracticability tolling would be 7 months and two weeks. This would extend the statutory period from January 21, 2025, through September 4, 2025.

            Alternatively, even if the court were to only consider the impracticability of the recent fires, CCP section 583.350 would also extend the period to bring the action to trial for six months after that period of impracticability ended.

“If the time within which an action must be brought to trial pursuant to this article 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.) Here, there were less than six months remaining to bring the action to trial after the end of the period of impracticability caused by the recent fires. If the base statutory period would have ended on January 21, 2025, then there was approximately two weeks left to bring the action to trial when the Palisades fire began on January 7, 2025. Defendants assert that section 583.340 would not apply here. However, Defendants show no authority which holds that section would not apply to the tolling provisions of section 583.340, which are necessarily statutory in nature. (CCP § 583.360(b); see Ables v. A. Ghazale Bros., Inc., (2022) 74 Cal. App. 5th 823 [emergency rule 10(a) does not trigger section 583.340 because it not a statute, but an administrative rule].) In sum, the last period of impracticability ended on February 18, 2025. There was less than 6 months to bring this action to trial at that juncture. Therefore, this action would have until August 18, 2025, to go to trial after a section 583.350 extension. 

Accordingly, the motions are DENIED.