Judge: Teresa A. Beaudet, Case: 19STCV07915, Date: 2024-10-15 Tentative Ruling

Case Number: 19STCV07915    Hearing Date: October 15, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Alexander Weinberger (“Plaintiff”) filed this action on March 7, 2019 against Defendants McLaren Automotive, Inc. (“MAI”) and O’Gara Coach Company, LLC dba McLaren Beverly Hills. On January 30, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges causes of action for (1) breach of implied warranty of merchantability and (2) breach of express warranty.

MAI now moves to dismiss the action.[1] Plaintiff opposes.

Discussion

Code of Civil Procedure section 583.310 provides, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” Pursuant to Code of Civil Procedure section 583.360, “(a) 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. (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

“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.” (Code Civ. Proc., § 583.340.) Pursuant to Code of Civil Procedure section 583.330, “[t]he parties may extend the time within which an action must be brought to trial pursuant to this article by…written stipulation” and “[b]y oral agreement made in open court, if entered in the minutes of the court or a transcript is made.”

In addition, pursuant to Emergency Rule 10(a), “[n]otwithstanding 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.” (Cal. Rules of Court, Appen. 1, Emergency Rule 10(a).)

As set forth above, the instant action was filed on March 7, 2019. MAI asserts that the application of Emergency Rule 10(a) to this case “provided Plaintiff with an additional six-month period during which he could have brought this case to trial, extending his deadline to bring the case to September 6, 2024.” (Mot. at p. 2:24-26.)[2]

MAI asserts that Plaintiff’s five-year period to bring its claims against MAI has accordingly expired, and that “there is no applicable exception to the mandatory dismissal statute.” (Mot. at p. 3:2-3.) MAI’s counsel also indicates in her supporting declaration that “[o]n January 12, 2024, I appeared before this Court for a status conference on behalf of MAI. Attached hereto as ‘Exhibit A’ is a true and correct copy of the transcript of the status conference on January 12, 2024.” (Gibson Decl., ¶ 2.) MAI points to the following portion of the January 12, 2024 transcript: “MS. GIBSON:…THE ONLY THING I WANT TO MENTION BUT WE HAVEN’T DISCUSSED HERE, EMERGENCY RULE 10, IS THE FIVE-YEAR RULE PASSES ON MARCH 7TH. THE COURT: OKAY. IS THAT WITH OR WITHOUT – THAT’S WITHOUT THE RULE 10? MS. GIBSON: THAT’S CORRECT, YOUR HONOR. THE COURT: OKAY. WELL, WHAT’S THE POSITION OF THE PARTIES ON THAT? I THINK THE CASE JUST CAME DOWN SAYING THAT IT APPLIES. MS. GIBSON: I DON’T DISAGREE THAT IT WOULD PROBABLY APPLY. IT WOULD MEAN THAT WE WOULD NEED, I THINK, A DATE SOMETIME BEFORE SEPTEMBER 3RD. THE COURT: OKAY. ANYTHING FROM THE PLAINTIFF ON THAT? MR. BARRY:  I WOULD AGREE, YOUR HONOR.” (Gibson Decl., ¶ 2, Ex. A, p. 5:6-19.) MAI asserts that accordingly, “Plaintiff was aware that the five-year period was approaching…” (Mot. at p. 2:11, citing Transcript of January 12, 2024 Status Conference.)

In the opposition, Plaintiff asserts that “mandatory dismissal under Code of Civil Procedure section 583.360 is not warranted and should be denied.” (Opp’n at p. 2:16-17.) Plaintiff asserts that the exception set forth in Code of Civil Procedure section 583.340, subdivision (c) is applicable here. This provision provides that “[i]n 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:…(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (Code Civ. Proc., § 583.340, subd. (c).)

Plaintiff argues that “[t]he error in Defendant’s calculation is that it has not accounted for Judge Beaudet’s September through December, 2023 period of unavailability which…made it impossible if not impracticable for Plaintiff to bring this matter to trial. The result of this is that the five-year statute was tolled at least for the same amount of time - four months - and it is time added later to Plaintiff’s five-year statute…Applying this provides Plaintiff with an extension until at least January, 2025 to bring this matter to trial.” (Opp’n at pp. 6:27-7:7.)

Plaintiff’s counsel attaches to his supporting declaration certain minute orders in this matter. The Court’s August 10, 2023 minute order provides, inter alia, that “[t]he parties will retrieve the latest trial document binders by August 18, 2023 and by October 2, 2023, they will update it to include the final set of stipulated facts, the applicable witness list, the joint set of agreed upon or ruled upon jury instructions, the remaining contested CACI and special instructions, the special verdict form, the updated joint exhibit list, and the parties designations of deposition excerpts and any objections thereto. Final Status Conference is continued to 10/09/23…Trial Setting Conference is scheduled for 10/09/23...” (Barry Decl., ¶ 3, Ex. A.) Plaintiff asserts that after this August 10, 2023 Final Status Conference, “Judge Rolf Treu held court for Department 50, holding hearings on October 9, 2023, November 17, 2023 and December 5, 2023. Nothing happened…during this time.” (Opp’n at p. 5:4-6.)  

The Court’s October 9, 2023 minute order provides, inter alia, “[t]he Honorable Judge Rolf Treu for Honorable Teresa A. Beaudet…[o]n the Court’s own motion, the Final Status Conference scheduled for 10/09/2023, and Trial Setting Conference scheduled for 10/09/2023 are continued to 11/17/23…” (Barry Decl., ¶ 3, Ex. A.) On November 17, 2023, the Court issued a minute order providing, inter alia, that “[t]he Honorable Judge Rolf Treu for Honorable Teresa A. Beaudet…On the Court’s own motion, the Final Status Conference scheduled for 11/17/2023, and Trial Setting Conference scheduled for 11/17/2023 are continued to 12/05/23…” (Ibid.) On December 5, 2023, the Court issued a minute order providing, inter alia, that “[t]he Honorable Judge Rolf Treu for Honorable Teresa A. Beaudet…On the Court’s own motion, the Final Status Conference scheduled for 12/05/2023, and Trial Setting Conference scheduled for 12/05/2023 are continued to 01/12/24…” (Ibid.)[3]

In the reply, MAI argues that “Plaintiff contends that Judge Beaudet’s leave from September 3 or 4, 2023 to the end of 2023 must be extracted from the calculation of his statutory deadline yet fails to provide case law supporting that this 120-day period constitutes a ‘substantial portion’ of his overall deadline. For context, from March 7, 2019 (the date Plaintiff filed his Complaint) to September 9, 2024 (the date of the expiration of the five- and one-half-year period) is 2,013 days, meaning that Judge Beaudet’s approximately 120-day leave would have constituted less than 6% of the totality of the case—far from what could be considered to be a ‘substantial portion.’” (Reply at p. 6:6-13.) In support of this argument, MAI cites to Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 333-334, where the Court of Appeal noted as follows:

“And Sierra Nevada concerned illness as the circumstance of impracticability. As we explained there: “The text of section 583.340[(c)] impels the view that there must be a causal connection between the circumstance upon which plaintiff relies and the failure to satisfy the five-year requirement. Bringing the action to trial must be impossible, impracticable, or futile for the reason proffered. … [¶] A bare showing that a counsel was ill does not warrant the attribution of such causation. Two kinds of circumstance occur to us in which it may be appropriate to say that the illness o[f] counsel has caused the plaintiff to fail to bring the case to trial in compliance with the five-year requirement. The first is when an illness of counsel occurs at the end of the five-year period in circumstances in which it is likely that counsel, but for the illness, would have become aware of the impending deadline and taken the appropriate action to avert the transgression. The second is an unusually lengthy illness of sole counsel which deprives the plaintiff of a substantial portion of the five-year period for prosecution of the lawsuit, i.e., trial preparation and moving the case to trial.” (Emphasis omitted, underline added.)

But here, Plaintiff does not argue that his counsel’s illness is circumstance of impracticability extending the five-year requirement. Thus, the Court does not see how Tamburina is applicable to the facts here.

Moreover, in Chin v. Meier (1991) 235 Cal.App.3d 1473, 1478, cited by Plaintiff, the Court of Appeal noted that “[i]t is clear that so long as the court may conclude that there was a period of impossibility, impracticability or futility, over which plaintiff had no control…the court is required to toll that period even if there is ample time after said period of impracticability within which to go to trial.” The Court finds that Plaintiff has shown that here, there was a period over which Plaintiff had no control (i.e., Judge Beaudet’s leave) during which it was impracticable to bring the action to trial. Thus, the Court does not find that MAI has shown that the instant action must be dismissed because it was “not brought to trial within the time prescribed in [Code of Civil Procedure sections 583.310-583.360].” (Code Civ. Proc., § 583.360, subd. (a).)  

Conclusion

Based on the foregoing, the Court denies MAI’s motion to dismiss.

The Court orders Plaintiff to give notice of this ruling.

DATED:  October 15, 2024                           ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court