Judge Michael E. Whitaker, Case Number: SC127072, Date: 2023-10-26 Tentative Ruling

Plaintiffs Christian Spannoff, 10 NB Partnership, and 01 BH Partnership (“Plaintiffs”) seek reconsideration of the Court’s order of October 26, 2023, in which the Court granted Defendant’s motion to dismiss for failure to bring the action to trial within 5 years pursuant to Code of Civil Procedure section 583.310. The Motion is unopposed.

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).) Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations & citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 [on a motion for reconsideration, a party must present new or different facts, circumstances, or law, which the moving party “could not, with reasonable diligence, have discovered or produced” in connection with the original hearing].)

Plaintiffs filed the complaint on February 14, 2017. As discussed in more depth below, the case was stayed for a time due to pending bankruptcy proceedings. On April 30, 2021, a jury trial was set for January 24, 2022. (See June 1, 2021 Minute Order.) On January 24, Plaintiffs’ counsel did not appear, so the Court set a Final Status Conference for April 8, 2022 and scheduled a jury trial for April 25, 2022. (January 24, 2022 Minute Order.)

On April 8, 2022, the parties orally stipulated to “waive the five (5) year statute of limitations to bring the matter to trial” and were “directed to file a stipulation and proposed order regarding the waiver” and orally stipulated to continue the trial from April 25, 2022 to September 12, 2022. (April 8, 2022 Minute Order.) On April 20, 2022, the parties filed a written stipulation to extend the five-year deadline to October 22, 2022. The Court granted the written stipulation.

At the September 12, 2022 trial, there were no appearances by either party. The Court continued the jury trial to September 28, 2022. (September 12, 2022 Minute Order.) On September 28, 2022, the Court continued the final status conference, status conference re mediation, and jury trial to October 18, 2022. (September 28, 2022 Minute Order.)

On October 18, 2022, the final status conference and jury trial were placed off calendar so the parties could pursue a mandatory settlement conference.

The February 17, 2023 Minute Order reflects, “All parties orally stipulate to waive the five year statute of limitations to bring the case to trial, pursuant to Code of Civil Procedure Section 583.330(b), to 09/01/2023.” (February 17, 2023 Minute Order.) The final status conference was scheduled for April 28, 2023, and a non-jury trial was scheduled for May 8, 2023. (Ibid.) At the March 24, 2023 mandatory settlement conference, the case did not settle. (See March 24, 2023 Minute Order.)

The April 28, 2023 Minute Order indicates, “Pursuant to oral stipulation, the Final Status Conference scheduled for 04/28/2023 is continued to 09/15/23 at 09:30 AM in Department 207 at Beverly Hills Courthouse” and “Pursuant to oral stipulation, the Non-Jury Trial scheduled for 05/08/2023 is advanced to this date and continued to 10/02/23 at 10:00 AM in Department 207 at Beverly Hills Courthouse.” Counsel for Defendant was to give notice. (April 28, 2023 Minute Order.)

On September 14, 2023, Defendant filed a “Notice of Violation of Code of Civil Procedure 583.310.”

At the September 15, 2023 hearing, Defendant indicated that Plaintiffs failed to serve Defendant with the trial documents, and Defendant argued the case should be dismissed pursuant to the 5-year rule. The Court permitted the parties to brief the issue. Further, the Court continued the final status conference and trial because the parties were not ready for trial as the Court did not receive joint trial documents as required.[1]

On October 26, 2023, the Court granted Defendant’s unopposed motion to dismiss the case for failure to bring the action to trial within 5 years pursuant to Code of Civil Procedure section 583.310. The Court found that Plaintiffs failed to bring the action to trial by the stipulated October 2, 2023 date, and there was no further stipulation to extend the statutory deadline. (October 26, 2023.)

As a threshold issue, the Court notes that Plaintiffs did not oppose Defendant’s motion to dismiss. The moving party on a motion for reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. All Plaintiffs offer in this regard is a declaration explaining that co-counsel failed to communicate with each other, resulting in Plaintiffs’ inadvertent failure to prepare and submit a joint trial package or a response to the Motion to Dismiss. (Sirota Decl. ¶¶ 6-13.) Under the circumstances, the Court finds that with reasonable diligence, Plaintiffs’ could have produced the evidence they now proffer regarding the bankruptcy stays in opposition to the Motion to Dismiss.

Plaintiffs contend 01 BH Partnership filed for Chapter 11 bankruptcy twice, resulting in two automatic stays of this case –the first from April 25, 2018 to February 15, 2019, lasting 9 months and 21 days, and the second from July 31, 2019 to February 23, 2021, lasting 17 months and 24 days. (Mot. at p. 7 and Ex. 2 [Bankruptcy docket].) Thus, Plaintiffs contend, by operation of Code of Civil Procedure, section 583.340, the 5-year deadline is automatically extended by 27 months and 15 days by virtue of the automatic bankruptcy stays. In addition, Plaintiffs contend that Emergency Order 10, extends the 5-year rule by an additional 6 months. Thus, Plaintiffs argue, the stipulations to extend the 5-year deadline were unnecessary, as the deadline is not until November 28, 2024.

Code of Civil Procedure section 583.340 provides, “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: […] (b) Prosecution or trial of the action was stayed or enjoined.” Similarly, California Rules of Court, Emergency Rule 10 provides, “Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.”

“The terms “waiver” and “forfeiture” long have been used interchangeably. As the United States Supreme Court has explained, however, waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right. Thus, it is most accurate to characterize the issue as whether a defendant forfeits the right to object to venue by failing to timely raise such an objection prior to trial.” (People v. Simon (2001) 25 Cal.4th 1082, 1097 [cleaned up]; see also Osman v. Superior Court (2005) 134 Cal.App.4th 32, 36.) As such, the Court considers Plaintiffs’ belated contention to be a forfeiture of any procedural or substantive argument they could have raised during prior proceedings when the 5-year rule was addressed with and by the Court, resulting in Plaintiffs stipulating to extensions of the 5-year rule without raising the purported extensions of time to bring the action to trial.

Notwithstanding Plaintiffs’ forfeiture, the Court’s record does not comport with Plaintiffs’ timing. Plaintiff 01 BH Partnership filed a Notice of Stay on May 10, 2018, indicating that it filed for bankruptcy on April 25, 2018. At the November 5, 2018 status conference, counsel represented to the Court that the Bankruptcy proceeding was dismissed. (November 5, 2018 Minute Order.) Plaintiffs now submit evidence that the debtor was dismissed on June 21, 2018. Thus, the first bankruptcy stay was from April 25, 2018 to June 21, 2018, or 57 days. Plaintiffs now contend that the debtor contested and appealed the dismissal, and the first bankruptcy proceeding was not formally closed until February 15, 2019. But Plaintiffs informed the Court on November 5, 2018 that the bankruptcy proceeding had been dismissed and this case resumed and was not stayed.

On August 28, 2019, Plaintiff 01 BH Partnership filed a “Notice of Filing Bankruptcy,” indicating a second bankruptcy was filed on August 1, 2019. The Bankruptcy document attached to the Notice indicates it was filed July 31, 2019. On July 29, 2020, Plaintiffs filed a Bankruptcy Status Report, attached to which was an April 29, 2020 order granting a relief from stay as to this and the consolidated case number BC651893. Thus the second bankruptcy stay lasted from July 31, 2019 to April 29, 2020, or 273 days. Thus, even if Plaintiffs had been diligent in providing the Court with evidence of the bankruptcy stays prior to their motion for reconsideration, the maximum extension the bankruptcy stays could have provided was 57 + 273 = 330 days, or a trial date of January 10, 2023. Even with the 6-month emergency extension added, the deadline to bring the case to trial would have been July 10, 2023.

Thus, the oral stipulations to extend the five-year deadline were necessary, both because the Court was not previously provided information regarding the exact duration of the bankruptcy stays, and because the deadline had passed in any event.

[1] The Court notes the original September 15, 2023 Minute Order erroneously indicates, “Pursuant to oral stipulation, the Non-Jury Trial scheduled for 10/02/2023 is advanced to this date and continued to 11/13/23[.]” (September 15, 2023 Minute Order.) In fact, the Court continued the trial date. (See October 25, 2023 Minute Order [Nunc Pro Tunc Order].)

DEPARTMENT	207
HEARING DATE	December 15, 2023
CASE NUMBER	SC127072
MOTION	Motion for Reconsideration
MOVING PARTIES	Plaintiffs Christian Spannoff, 10 NB Partnership, and 01 BH Partnership
OPPOSING PARTY	(none)