Judge: Teresa A. Beaudet, Case: 18STCV06807, Date: 2025-04-14 Tentative Ruling

Case Number: 18STCV06807    Hearing Date: April 14, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

This action arises from the ownership and management of a commercial property located at 6100 Wilshire Blvd., Los Angeles CA 90048 (“the Property”). Plaintiff Brian Weiner (“Weiner”) sued individually and derivatively on behalf of Onyx Tower Management, LLC (“Onyx Management") (together “Plaintiffs”) on November 30, 2018. Plaintiffs filed their operative third amended complaint (“TAC”) on October 22, 2020, asserting three claims for breach of contract, one for breach of the covenant of good faith and fair dealing, and claims for a constructive trust, an accounting, declaratory relief, constructive fraud, fraud, and appointment of a receiver. In the TAC, Plaintiffs named defendants Onyx Tower, LLC (“Onyx Tower”), Onyx Tower Group, LLC (“Onyx Group”), Onyx Tower Holdings, LLC (“Onyx Holdings”) (together “the Onyx Defendants”), and Sam, Michael, Julia, Tanya, and Said Hakim (all together “Defendants”).[1]

Plaintiffs alleged that Weiner, longtime financial advisor to the Hakims, joined the Hakims in a venture to purchase and manage the Property noted above. Onyx Management and Defendants serve various roles in the Property’s management and the distribution of the profits it generates. When the Property was first purchased, Weiner took an ownership stake, either directly or through one of the entity parties. Through a series of contracts and transactions, the Hakims eventually divested Weiner of any profits he thought he would earn from the venture, in contravention of various promises and agreements between the parties.

As the various defendants answered each iteration of Plaintiffs’ complaint, cross-complaints ensued. On March 6, 2020, Michael cross-complained against Weiner, Onyx Management, and the remaining defendants (less Onyx Holdings) for indemnity, contribution, an accounting, and declaratory relief. On January 19, 2021, Sam – individually and derivatively on behalf of Onyx Management and Onyx Group – Said, Tanya, and Julia cross-complained against Weiner for breach of contract (two counts), breach of the covenant of good faith and fair dealing, breach of fiduciary duties, and misrepresentation. (On April 12, 2023, Michael re- filed his cross-complaint as a “Cross-Complaint to the Third Amended Complaint”.)

On July 19, 2024, the Court appointed the Hon. Gregory Keosian (Ret.) as discovery referee, with Judge Keosian’s decisions to stand as the decisions of the Court.

On March 19, 2025, Sam, Said, Tanya, and Julia (“the Hakims” or “Moving Defendants”) moved to dismiss Plaintiffs’ TAC based on Code of Civil Procedure section 583.310, which requires actions to be brought to trial within five years of filing, absent certain special circumstances tolling the mandatory period.

On March 25, 2025, Judge Keosian found the Onyx Defendants had engaged in various discovery abuses and ordered stricken the Answers of Onyx Tower, Onyx Group, Onyx Holdings, and Onyx Management. (03-25-2025 Ref. Ord, 29:23-25.)

(Judge Keosian remarked in a footnote to his order: “Note also that while the issue of the five-year statute (Code Civ. Proc., § 583.310) is not squarely before the Referee, and this appears to be a matter of contention between the parties, there appears to be reason to believe that the five-year statute (Code Civ. Proc., § 583.310) may hinder a continuance of the trial even if the Court was willing to grant one.” (Id., 29:2, fn. 10.))

Plaintiffs filed their opposition to the Hakims’ motion to dismiss on April 1, 2025. On April 8, 2025, the Hakims replied.

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.)  Failure to proceed to trial requires dismissal by the court on its own motion or motion by any party.  (Code Civ. Proc., § 583.360.) 

Dismissal is mandatory if the action is not brought to trial within five years and is not subject to extension, excuse, or exception, except as expressly provided by statue.  (Code Civ. Proc., § 583.360.)  The statutory exceptions include: 

(1)       Written stipulation.  (Code Civ. Proc., §583.330(a).) 

(2)       Oral agreement made in open court, if entered in the minutes of the court or a transcript is made.  (Code Civ. Proc., § 583.330(b).) 

(3)       The jurisdiction of the court to try the action was suspended, or prosecution or trial of the action is stayed or enjoined.  (Code Civ. Proc., § 583.340(a)-(b).) 

(4)       Bringing action to trial, for any other reason, was impossible, impracticable, or futile.  (Code Civ. Proc., § 583.340(c).) 

Additionally, Emergency Rule 10, subdivision (a), extends the time in which to bring a civil action to trial by six months, notwithstanding any other law.  (Emergency Rules Related to COVID-19, Emergency rule 10.)  If fewer than 6 months remain to bring the action to trial at the end of a statutory period of tolling or extension, the action may not be dismissed if it is brought to trial within 6 months after that period has ended.  (Code Civ. Proc., § 583.350; Him v. Superior Court (1986) 184 Cal.App.3d 35.)  However, the six-month grace period under Code of Civil Procedure section 583.350 does not apply in addition to the six-month extension of time to bring a civil action to trial provided by Emergency Rule 10, subdivision (a).  (Ables v. A. Ghazale Bros. (2022) 74 Cal.App.5th 823.) 

“The determination whether it was ‘impossible, impracticable, or futile’ to bring a case to trial within a given time period is generally fact specific, depending on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles. [Citations.]” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.)  “The exceptions must be interpreted liberally, consistent with the policy favoring trial on the merits.  [Citations.]”  (Bank of Am. v. Superior Court (1988) 200 Cal.App.3d 1000, 1013.)  However, Plaintiff’s diligence alone does not preclude involuntary dismissal and is simply one factor for determining whether bringing the action to trial was impossible, impracticable, or futile.  (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731.)  “‘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.’ [Citation.]”  (Ibid.)  Plaintiff bears the burden of proving circumstances beyond its control that made it impossible, impracticable, or futile to bring the action to trial.  (Ibid.) 

Discussion

Plaintiffs filed their lawsuit on November 30, 2018. The date for them to bring their case to trial initially fell on November 30, 2023.

Emergency Rule 10 extends Plaintiffs’ deadline by six months, placing the last date for trial on May 30, 2024. Defendants argue that Emergency Rule 10 does not apply based on Ables v. A. Ghazale Bros., supra, 74 Cal.App.5th 823 (Ables); not so. Ables holds that a complaint is subject to either Code of Civil Procedure section 583.350 or Emergency Rule 10, but not both. Section 583.350 is not at issue; therefore, Emergency Rule 10 applies.

After Plaintiffs served Sam, Julia, and Tanya, they did not timely respond, and their defaults were entered on April 29, 2019. The Court granted their motion to set aside their defaults on October 29, 2019.

Plaintiffs’ deadline to bring their case to trial was tolled between April 29 and October 29, 2019, when Sam, Julia, and Tanya were in default. (See Maguire v. Collier (1975) 49 Cal.App.3d 309, 313 [“the period during which an adversary is in default, as well as the period during which a default judgment is in effect, is to be excluded from computation of the mandatory five-year dismissal”] (Maguire).) Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495 (Dale) does not hold otherwise; that case discussed mandatory dismissal for failure to serve process. As relevant, Dale expressly reaffirmed Maguire’s holding on failure to bring a case to trial. (Id., at pp. 498-499.)

Accounting for the period that Defendants were in default, Plaintiffs’ time to bring the case to trial was extended for 183 days, to November 29, 2024.

This tolling period does not apply to Said, who was added by fictitious name amendment on July 20, 2020. The remainder of the analysis applies equally to him, and the result for all Moving Defendants is the same.

The parties also stipulated to toll the five-year period between April 29, 2024 and September 11, 2024. (See Pls.Exh. 3 [written stipulation], Exh. 4 [Court order].) This tolled the period for another 135 days. The deadline for trial at that point fell on April 13, 2025.

Defendants argue that by entering the April 2024 stipulation, Plaintiffs “waived all other reasons to extend the 5-year rule any further than the September date”. (Mot., 4:11-12.) Defendant cites no law for this contention. The purported waiver is not in the text of the stipulation. (See Pls.Exh.3, 3:16-18 [“The 5-year date will be extended by the time period between the date of this Stipulation, and September 25, 2024, and/or the new trial date.”], Exh. 4 [confirming trial “extended by the time period between” relevant dates].) Faced with solely logistical grounds for dismissal, courts err toward trial on the merits. (See Bank of Am. v. Superior Court, supra, 200 Cal.App.3d 1000, 1013.) If there is ambiguity in the parties’ stipulation, it will be interpreted in Plaintiffs’ favor, unless Defendants give a good reason otherwise. They have not.

Plaintiffs also argue the deadline to bring the case to trial was tolled by several months due to the Court’s unavailability from August 2023 to January 2024. This is correct because, without exception, all of the jury trials scheduled in Dept. 50 during that time period were continued by the temporarily assigned judge.

Additionally, with the preference for trial on the merits in mind, Plaintiffs have carried their burden to show that bringing the case to trial was impossible, impracticable, or futile, based on the profound discovery misconduct found by Judge Keosian during Referee proceedings.

“Generally, delays encountered in discovery are part of the ‘normal delays involved in prosecuting lawsuits’ and do not excuse failure to bring a case to trial within the five-year limit.” (Bank of America v. Superior Court(1988) 200 Cal.App.3d 1000, 1016.) However, where a plaintiff diligently pursues discovery and is precluded from fully preparing for trial due to a defendant’s misconduct, a trial court may find impracticability for purposes of section 583.310. (See Westinghouse Electric Corp. v. Superior Court (1983) 143 Cal.App.3d 95, 105-107 [statute properly tolled for impracticability in complex case where plaintiff acted diligently, but substantial discovery remained outstanding]; cf. Martinez v. Landry's Restaurants, Inc. (2018) 26 Cal.App.5th 783, 796-798 [statute not tolled where plaintiff introduced new claims late in proceedings and failed to diligently pursue discovery].)

Here, Referee Judge Keosian – whose order stands as the order of the Court -- found that the Onyx Defendants (there including Onyx Management) had engaged in “years of insufficient responses and failures to produce all responsive documents in this complex case, all of which violated multiple orders of the Court and Referee, and all of which have deprived Plaintiff of important evidence to which he is entitled[.]” (Ref. Ord, 29:3-5.) The Court recognizes that Judge Keosian’s Order is directed to only the Onyx Defendants. However, the ruling catalogues a long course of discovery misconduct partly perpetrated by the individual Moving Defendants here. Plaintiff litigated discovery matters diligently before the Court and the Referee. Moreover, even if the Onyx Defendants’ misconduct cannot be ascribed to the Hakims (and the Court believes it can), Plaintiffs’ claims against the Hakims are intertwined with their claims against the Onyx Defendants, such that the Onyx Defendants’ misconduct equally hampered Plaintiffs’ capacity to try their claims against all four Hakims.[2]

Judge Keosian’s ruling establishes that the Onyx Defendants’ misconduct delayed discovery by at least 227 days, from July 12, 2024 – the date of the Court’s order that the Onyx Defendants must provide further discovery responses – to February 24, 2025, the date Judge Keosian issued terminating sanctions. The Onyx Defendants’ 227 days of misconduct tolls the mandatory trial period by an equivalent amount.

Based on (1) the period when the Hakims were in default, (2) the period of tolling established in Emergency Rule 10, (3) the period of time when Dept. 50 was unavailable for jury trials, (4) the parties’ stipulation to extend the mandatory trial period, and (5) the delay caused by Defendants’ discovery misconduct notwithstanding Plaintiffs’ due diligence, the mandatory period under Code of Civil Procedure section 583.310 has been extended well past the date currently set for trial.

Conclusion

Based on the foregoing, Defendant’s motion to dismiss is denied.

To avoid any dispute regarding the resulting date of the 5-year cut-off, the Court orders Plaintiff to prepare a separate proposed order setting forth the date and the basis for the calculation of the date. Plaintiff is to file and serve the proposed order within 5 court days of the date of this Order. Defendants will have 5 court days to object to the proposed order but only as to whether the proposed order comports with the rulings in this Order.  

Defendants are ordered to give notice of this Order.

DATED:  April 14, 2025       

          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court