Judge: Mel Red Recana, Case: BC669520, Date: 2024-06-10 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: BC669520    Hearing Date: June 10, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:              June 10, 2024

Moving Party:             Cross-Defendants Berney Law Corporation and Russell L. Berney

Responding Party:      Cross-Complainant Robert G. Bartlett

Motion to Dismiss

The court considered the moving, opposition, and reply papers.

            The court DENIES cross-defendants Berney Law Corporation and Russell L. Berney’s motion to dismiss.

Background

            Plaintiff’s Complaint

This is an action for declaratory relief on a contract. Plaintiff Berney Law Corporation (“BLC” or “Plaintiff”) represented defendant Robert G. Bartlett (“Bartlett”) in two legal disputes. In the first matter, BLC secured a settlement of the claim and Bartlett agreed in writing to pay BLC a fixed sum on a monthly basis upon Bartlett’s receipt of the settlement proceeds. Bartlett abided by this agreement for a time but has since stopped proving payments to BLC. Bartlett claims that the agreement to distribute the proceeds is unenforceable.

            In the second matter, BLC represented Bartlett against a country club claim which had revoked his privileges after an administrative hearing. BLC discovered that the club had engaged in some misconduct regarding member deposits, so then filing a qui tam action against the club with Bartlett as the relator. Bartlett then dismissed all of his individual claims in the matter. This matter settled, and BLC entered into an agreement with Bartlett and co-counsel whereby each would receive a certain portion of the settlement proceeds. Bartlett now claims that BLC is not entitled to its portions of the proceeds from this agreement.

            BLC filed its complaint on July 31, 2017, alleging three cause of action: (1) declaratory relief re: Matter 1; (2) declaratory relief re: Matter 2; and (3) declaratory relief (restitution of money paid to defendant).

            Bartlett’s Cross-Complaint

            Bartlett initially filed a Cross-Complaint on September 5, 2017. Bartlett filed a First Amended Cross-Complaint on December 1, 2017, a Second Amended Cross-Complaint on July 2, 2018, a Third Amended Cross-Complaint on March 8, 2022, and a Fourth Amended Cross-Complaint on July 7, 2022. On February 1, 2024, the court granted cross-defendants’ motion for judgment on the pleadings as to the first and seventh causes of action raised in the Fourth Amended Cross-Complaint, with leave to amend. On February 9, 2024, Bartlett filed the operative Fifth Amended Cross-Complaint (“5ACC”) against BLC and Russell L. Berney. The 5ACC alleges causes of action for (1) elder abuse; (2) declaratory relief; (3) declaratory relief; and (4)-(8) breaches of fiduciary duty.

            The 5ACC alleges the following: In June 2016, after settlement of the first matter in which Bartlett retained BLC to represent him, BLC pressured Bartlett into signing an agreement entitling BLC to 10 percent of the settlement proceeds. This was notwithstanding that cross-defendant Russell L. Berney had initially agreed to represent Bartlett free of charge. Bartlett has since paid BLC $3,392 in connection with this agreement. But, Bartlett discontinued payments after receiving advice from independent counsel that BLC is not entitled to any payments under the agreement.

            With regard to the second matter, Bartlett retained BLC to serve as his attorney on a contingency fee agreement whereby BLC was entitled to 50% of the expected recovery. BLC brought a new firm into the matter, and the parties executed a new retainer agreement reflecting this fact and agreeing that BLC would receive no fee if a certain motion to dismiss was granted. That motion to dismiss was in fact granted. The second matter settled in March 2017. BLC approached Bartlett on the busiest day of his work life, the filing deadline for tax returns in order to pressure him into signing an agreement entitling BLC to 39 percent of the settlement funds.

            For both matters, Bartlett seeks a declaration that BLC is not entitled to any of the settlement funds. The 5ACC also includes allegations that BLC and Berney breached their fiduciary duties during the course of these matters.

            BLC’s Cross-Complaint

            On February 22, 2018, BLC filed a Cross-Complaint against ClubCorp Porter Valley Country Club Inc., ClubCorp Valley Country Club Inc., ClubCorp Club Operations Inc., CCA Club Operations Holdings LLC, ClubCorp Holdings Inc., and ClubCorp USA. Inc. (collectively, “ClubCorp.) On April 10, 2020, BLC filed a Third Amended Cross-Complaint alleged a cause of action for promissory estoppel.

            On April 7, 2021, the court sustain ClubCorps’ demurrer to BLC’s Third Amended Cross-Complaint without leave to amend. The Court of Appeal affirmed the court’s order on ClubCorps’ demurrer on May 18, 2023.

            Procedural History re: Five-Year Deadline

            On December 28, 2022, the court granted Bartlett’s renewed ex parte application to continue trial, and it was the court’s intention to toll the deadline to bring this action to trial due to Bartlett’s ongoing cancer treatment because it rendered a trial impracticable. (See May 5, 2023 Order at pg. 5.)

            On May 5, 2023, the court denied cross-defendants’ motion to dismiss because the deadline had been tolled due to Bartlett’s ongoing cancer treatment and the underlying action itself had been extended. (Id. at pp. 5-6.)  On the same day, in open court, the parties orally stipulated to waive the five-year rule to trial until February 29, 2024.

On December 18, 2023, cross-defendants filed their motion for judgment on the pleadings directed at the second and seventh causes of action raised in the Barlett’s Fourth Amended Cross-Complaint. the court scheduled trial to commence on February 5, 2023 and advanced the motion for judgment on the pleadings from October 9, 2024 to February 1, 2024.

Following the grant of the motion for judgment on the pleadings, the court determined that this case was not ready to proceed to trial on February 5, 2024.  (See February 1, 2024 Minute Order.)

On March 29, 2024, cross-defendants filed the instant motion to dismiss. On April 15, 2024, Bartlett filed his opposition to the instant motion. Thereafter, on June 3, 2024, cross-defendants filed their reply.

Request for Judicial Notice

            Cross-defendant’s request the court to take judicial notice of the following documents: (1) Bartlett’s Cross-Complaint filed on September 5, 2017; (2) Bartlett’s First Amended Cross-Complaint filed on December 1, 2017; (3) the order dated December 6, 2017 setting trial for October 16, 2018; (4) the July 16, 2018 order vacating the October 16, 2018 trial date; (5) the August 8, 2018 order granting in part Bartlett’s ex parte application to file a Second Amended Cross-Complaint; (6) the November 20, 2018 order sustaining in part and denying in part the demurrer to the Second Amended Cross-Complaint; (7) the October 30, 2018 order setting trial for July 15, 2019; (8) the June 7, 2019 order vacating the July 15, 2019 trial date; (9) the March 7, 2022 order granting Bartlett’s motion for leave to filed a Third Amended Cross-Complaint and setting the action for trial on January 17, 2023; (10) Bartlett’s Third Amended Cross-Complaint; (11) the June 15, 2022 order granting in part and denying in part the anti-SLAPP motion to the Third Amended Cross-Complaint; (12) the June 17, 2022 order sustaining the fifth cause of action in the Third Amended Cross-Complaint with leave to amend; (13) Bartlett’s Fourth Amended Cross-Complaint, filed on July 7, 2022; (14) the parties’ stipulation in open court to extend the five-year deadline to bring this action to trial to February 29, 2024; (15) the December 18, 2023 order setting the hearing on the motion for  judgment on the pleadings for February 1, 2024 and continuing the trial date to February 5, 2024; and (16) the February 1, 2024 order granting the motion for judgment on the pleadings and determining that the case is not ready to proceed to trial on February 5, 2024.

            The court grants the request pursuant to Code of Civil Procedure § 452(d). However, Documents 1, 2, 10 and 13 are subject to the truth therein asserted.

            Bartlett requests the court to take judicial notice of the following documents: (1) cross-defendant’s motion to dismiss, field on April 17, 2023; (2) the May 5, 2023 order denying the motion to dismiss; (3) the October 18, 2023 order setting the case for trial on February 5, 2024; (4) cross-defendants’ motion for judgment on the pleadings, filed on February 1, 2024; and (5) the Court of Appeal opinion in Berney Law Corp. v. Club Corp, et al. B313888 (Los Angeles County Super. Ct. No. BC669520).

            The court grants the request pursuant to Code of Civil Procedure § 452(d). However, Documents 1 and 4 are subject to the truth therein asserted.

Legal Standard

“The five-year dismissal statute, [CCP § 583.310], states: ‘An action shall be brought to trial within five years after the action is commenced against the defendant.’ “ (Jordan v. Superstar Sandcars (2010) 182 Cal.App.4^th 1416, 1420.) “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to parties, if the action is not brought to trial within the time prescribed in this article.” (CCP § 583.360(a).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. (Id., § 583.360(b).)

“Exceptions to mandatory dismissal include: ‘(1) written stipulations or oral agreements made in open court extending the five-year time period; (2) exclusion from the computations of the five years any time period during which the jurisdiction of the court was suspended or the prosecution of the action was stayed; and (3) bringing the action was impossible, impracticable, or futile. (§§ 583.330, subds. (a),(b), 583.340, subds. (a)-(c).)’ [Citation.]” (Jordan, supra, 182 Cal.App.4th at 1420.)

“In determining whether the exception applies, the trial court must consider ‘ “all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.” [Citation.]’ ” (Ibid.)

Discussion

             Cross-defendants Berney Law Corporation and Russell L. Berney move to dismiss Bartlett’s cross-action for his failure to bring it to trial within the five-year deadline under CCP § 583.310. Cross-defendants assert that the parties stipulated to extend the five-year deadline to February 28, 2024.  (Motion at pp. 5-6.) However, cross-defendants point out that, by February 5, 2024, the court had determined that the action was not ready for trial following the granting of cross-defendants’ motion for judgment on the pleadings. (Id. at pg. 6.) Because trial did not commence by February 29, 2024, cross-defendants argue that Bartlett failed to bring his claims within the time allowed. (Id. at pg. 8.) For this reason, they assert that dismissal is required under Section 583.360.

            In opposition, Bartlett first argues that cross-defendants tactically filed their motion for judgment on the pleadings in order make it impracticable for trial to be brought before February 29, 2024. (Opposition at pp. 6-12.) Additionally, Bartlett contends that he has been diligently prosecuting his case and had been ready to proceed with trial had it not been for cross-defendants’ motion for judgment on the pleadings. (Id. at pg. 16.)

            In reply, cross-defendants assert that the motion for judgment on the pleadings had been properly raised because such a motion can even be heard during trial if permitted by the court. (Reply at pg. 4, relying on CCP § 438(e) and Smiley v. Citibank (1995) 11 Cal.4th 138, 145.) Instead, cross-defendants reason that Bartlett was at fault for seeking to file an amended cross-complaint as opposed to proceeding with trial with his remaining cross-claims and appealing the dismissal after wards. (Id. at pg. 5, relying on Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, ¶ 7:151.) Thus, they argue that it was not impractical for trial to commence within the stipulated period. (Id. at pg. 6.) Additionally, they argue that Bartlett’s decision to file a Fifth Amended Cross-Complaint with trial looming overhead does not exhibit reasonable diligence. (Id. at pg. 11.)

            In considering the totality of the circumstances, the court finds that the cross-action is not subject to dismissal under the five-year dismissal statue. In determining whether an exception applies under Section 583.360, it is important for the court to examine the conduct of the parties and the nature of the proceedings. (Jordan, supra, 182 Cal.App.4th at 1420.)  Bartlett’s Fourth Amended Cross-Complaint had been filed since July 7, 2022, but the cross-defendants chose to wait until December 18, 2023 to challenge those pleadings. While the court acknowledges that cross-defendants were permitted to filed their motion for judgment on the pleadings near the time of trial and they were not obligated to file it sooner, the timing in which cross-defendant chose to do so with the understanding that trial had to be brought by February 29, 2024 is suspect. It suggests that the cross-defendants tactically chose this timing to disrupt Bartlett’s ability to proceed with trial.  After all, if the court had concluded that the contested causes of action fundamentally were defected, the court would not have granted Bartlett leave to amend.

            Furthermore, as previously acknowledged when cross-defendants first moved to dismiss Bartlett’s cross-action, cross-defendants’ underlying action and Bartlett’s cross-action present interrelated and interconnected factual and legal issues. (See May 5, 2023 Order at pg. 5.) Thus, considering it is policy to favor trial on the merits, it would be impractical to sever the two actions and allow only one to be heard. 

            Moreover, Bartlett had been diligent in prosecuting his cross-action by pursuing his claims, engaging in extensive discovery, and amending his pleadings several times as new facts developed in this case. While cross-defendants contend that Bartlett should have appealed the ruling on the motion for judgment on the pleadings after judgment had been entered as opposed to filing further amended pleadings, the court is not persuaded by this argument. The court had found it appropriate to grant Bartlett leave to amend under the circumstances. Thus, it was not inherently unreasonable for Bartlett to choose to amend his pleadings. Thus, there is no indication that Bartlett neglected to prosecute his cross-action.

            Accordingly, in consideration of the totality of the circumstances in this case, the instant motion should be denied because Bartlett had been diligent in prosecuting his cross-action, it was impracticable to bring the cross-action to trial based on cross-defendants’ tactics near the time of trial, and the two actions should be concurrently resolved at trial. 

            Based on the foregoing, the court DENIES cross-defendants Berney Law Corporation and Russell L. Berney’s motion to dismiss.

            It is so ordered.

Dated: June 10, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court