Judge: Michael T. Smyth, Case: 37-2015-00035457-CU-OR-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2015-00035457-CU-OR-CTL NORA MASOUD TRUSTEE OF THE NORA MASOUD-CREEL LIVING TRUST VS JP MORGAN CHASE BANK NATIONAL ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants JPMorgan Chase Bank, N.A. et al.'s Motion to Dismiss Pursuant to Code of Civil Procedure Sections 583.320 and 583.360 is DENIED.

As an initial matter, the court agrees with Defendants that Code of Civil Procedure section 583.350 did not apply to extend the statutory deadline by an additional six months, to September 11, 2024. That argument was squarely considered and rejected by Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 828 ['Because emergency rule 10(a) is not a statute but an administrative rule, it did not extend Ables's deadline pursuant to statute and did not trigger section 583.350's extra six-month period.'].) The court also agrees that the April 11, 2024 hearing did not, by itself, constitute oral agreement to extend the statutory deadline. At that point, this motion to dismiss was on file and the agreement with respect to scheduling was to move dates for hearings that would occur only in the event that this motion was denied.[1] But considering the Declaration of David Root and the record in this case, the court finds that there was an oral agreement to extend the deadline to bring the case to trial at the November 9, 2023 status conference. In Nunn v. JP Morgan Chase Bank, N.A. (2021) 64 Cal.App.5th 346, the Court of Appeal considered a settled statement (in lieu of a transcript) that summarized a hearing, in part, as follows: ''The court then proposed a trial [for a date beyond the statutory deadline]. The lawyers both indicated to the court that they had no objection to the trial being set [for a date beyond the statutory deadline]. . .

The court set dates for a settlement conference and for a trial management conference. The proceedings then concluded.'' (Id. at 356.) Based on that settled statement, the Court of Appeal concluded that there was oral agreement to extend the statutory deadline within the meaning of Code of Civil Procedure section 583.330. (Ibid.) Here, the minute order for the November 9, 2023 hearing only provides that trial was set for July 2024.

Attorney Root's declaration states that Plaintiff's 'counsel indicated that he was not prepared for trial until, at minimum, April 2024. I indicated that Defendants did not oppose an April 2024 trial date, so long as Defendants could advance the hearing date on a motion for summary judgment. I also advised that based on my review of the Court's electronic calendar, the earliest date for a hearing on a motion for summary judgment was in June 2024. The Court ultimately scheduled trial for July 26, 2024. At no point during the status conference did Plaintiff's counsel reference any concerns with dismissal of the action under Code of Civil Procedure §§ 583.310 et seq., or otherwise request an extension of Plaintiff's deadline under the three-year rule.' (ROA 197, Root Decl., ¶ 4.) Defendants explicit lack of opposition to a trial date after the statutory deadline brings this case sufficiently within the scope of Nunn.

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3115424  8 CASE NUMBER: CASE TITLE:  NORA MASOUD TRUSTEE OF THE NORA MASOUD-CREEL LIVING  37-2015-00035457-CU-OR-CTL Defendants attempt to distinguish Nunn by pointing to the lack of settled statement in this case and that in Nunn the court had first provided a trial date within in the statutory deadline that was moved for the defendants' benefit in that case. Lack of a settled statement prior to any appeal is not a discrepancy and based on the counsel's declaration, any settled statement would need to indicate that Defense counsel did not object to an April 2024 trial date. (See, e.g., Nunn, supra, 64 Cal.App.5th at 360 ['the settled statement was not part of the superior court record when this case was dismissed'].) Further, the court is not persuaded that the Nunn holding depended on the trial court first offering a date prior to the statutory deadline. Here, by Defense counsel's own admission, he did not object to the April 2024 hearing date and apparently had no issue with the court setting trial in July 2024 to accommodate a motion for summary judgment.

The motion is denied. /n [1] Because the court is denying the motion to dismiss, the statements at the April 11, 2024 ex parte hearing do constitute an oral agreement to additionally extend the time to bring the case to trial.

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