Judge: Teresa A. Beaudet, Case: BC565480, Date: 2023-08-03 Tentative Ruling

Case Number: BC565480    Hearing Date: January 30, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Mostafavi Law Group, APC filed this action on December 2, 2014 against Defendants Larry Rabineau, a Professional Corporation and Larry Rabineau.  

Plaintiffs Mostafavi Law Group, APC and Amir Mostafavi (jointly, “Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) on November 6, 2015. The SAC alleges causes of action for (1) inducing breach of contract, (2) interference with contractual relations, (3) intentional interference with prospective economic relations, (4) negligent interference with prospective economic relations, and (5) defamation per se.[1] 

On May 4, 2018, Law Offices of Larry Rabineau, A Professional Corporation and Larry Rabineau (jointly, “Defendants”) filed a Third Amended Answer to Complaint.

Defendants now move for an order “dismissing Plaintiffs’ Complaint.” Plaintiffs oppose.

Evidentiary Objection

Plaintiffs object to the Declaration of Virginia Narian filed with Defendants’ reply in support of the motion. As noted by Plaintiffs, “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Accordingly, the Court grants Plaintiffs’ request to strike the Declaration of Virginia Narian filed with Defendants’ reply.[2] 

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.” (Id., § 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).)

In the motion, Defendants assert that “[o]n October 31, 2019, Plaintiff filed a Notice of Appeal on the Court’s Ruling on Defendant’s motion to set aside judgment due to void 998. The Court of Appeal heard oral argument on February 10, 2021 and the Completion Date was May 5, 2021. Thus, because the 5-year mark would have originally been December 2, 2019, Plaintiff had 6 months from the end of the tolling period - May 5, 2021, to bring the action to trial. CCP section 583.350.[3] This was November 1, 2021.” (Mot. at p. 3:9-14, emphasis omitted.) Defendants further assert that “even if Emergency Rule 10(a) adopted by the Judicial Council during the COVID-19 pandemic would apply (although it arguably does not), an additional six months would extend the 5-year deadline to April 30, 2022 — almost two years ago.” (Mot. at p. 3:15-17.)

            Regarding the dates referenced by Defendants above, on October 31, 2019, the Court issued a minute order in this matter providing, inter alia, that “[t]he Court orders the case stayed pending appeal base [sic] upon the Notice of filing of Notice of Appeal on 10/31/19 and Westphal v. Westphal 61 Cal App. 2nd,544. The Court hereby stays the case in its entirety.”

On March 3, 2021, the Court of Appeal, Second Appellate District, Division Four filed an opinion indicating, inter alia, “Rabineau filed a motion to vacate the judgment under section 473, subdivision (d). He argued his section 998 offer was invalid because it lacked an acceptance provision. Consequently, Rabineau contended, the judgment stemming from the offer’s acceptance was void and should be set aside. The trial court agreed and granted Rabineau’s motion. On appeal, MLG contends the trial court erred by vacating the judgment because its ruling: (1) lacks support in caselaw; (2) contradicts the policies and purposes underlying section 998; and (3) violates principles of contract law and equity. For the reasons discussed below, we conclude the trial court correctly found the judgment was void. Accordingly, we affirm.” On May 14, 2021, the Court issued a minute order in this action providing, inter alia, that “Court in receipt of remittitur filed 05/05/21.” (Emphasis added.) As set forth above, Defendants’ calculations are based on the date of May 5, 2021. 

In the opposition, Plaintiffs assert that “[t]he motion must be denied merely because the five-year period has been satisfied when judgment was entered against Defendants on June 28, 2019.” (Opp’n at p. 3:19-20.) Plaintiffs note that on June 28, 2019, the Court issued a minute order providing, “Stipulated judgment entered for Plaintiff Mostafavi Law Group, APC, a California Professional Corporation against Defendant Law Offices of Larry Rabineau, APC and Defendant Rabineau, Larry on the Complaint filed by MOSTAFAVI LAW GROUP APC on 12/02/2014 for damages of $25,000.01 for a total of $25,000.01…” Plaintiffs note that this June 28, 2019 judgment was entered “prior to [sic] expiration of the five-year period on December 2, 2019.” (Opp’n at p. 3:22.) As discussed, the initial Complaint in this action was filed on December 2, 2014.   

Plaintiffs cite to McDonough Power Equipment Co. v. Superior Court of Los Angeles County (1972) 8 Cal.3d 527, 529, where the California Supreme Court noted that “Petitioner McDonough Power Equipment Co. seeks a writ of mandate to compel respondent superior court to dismiss a pending action for lack of prosecution pursuant to Code of Civil Procedure…section 583, subdivision (b), because it was not brought to trial within three years after the filing of the remittitur on a previous appeal. We have concluded that the writ should issue.” The McDonough Power Equipment Court noted that former Code of Civil Procedure section 583, subdivision (b) provided in relevant part: “Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended. . . . When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial . . . the action must be dismissed by the trial court, on motion of defendant after due notice to plaintiff, or of its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the trial court.” (Id. at p. 530 [emphasis omitted].)

            The McDonough Power Equipment Court found that “in applying section 583, a hearing on a demurrer constitutes a trial when the ensuing ruling is followed by a judgment of dismissal.” (McDonough Power Equipment Co. v. Superior Court of Los Angeles County, supra, 8 Cal.3d at p. 532.) The Court concluded that “where, as in the instant case, a judgment of dismissal, entered upon an order sustaining a demurrer without leave to amend, has been reversed, the action must be brought to trial within three years from the filing of the remittitur in the trial court. In such case the determination of the issues of law raised by the demurrer constitutes a trial within the meaning of section 583. Upon the going down of the remittitur the cause is remanded for a new trial whether the decision so provides expressly, is an unqualified reversal, or, as here, contains a direction only as to the overruling of the demurrer. Under such circumstances, the three-year provision of section 583, subdivision (b), applies and, since the action had been brought to trial, the five-year provision of such section has no application.” (Id. at pp. 532-533.)

            In the reply, Defendants assert that the stipulated judgment entered in this case on June 28, 2019 was not a “trial.” Defendants first assert that the stipulated judgment “did not include all the parties and therefore did not bring the entire matter to trial. The ‘stipulated judgment’ only involved one Plaintiff - Mostafavi Law Group - and not Amir Mostafavi.” (Reply at p. 2:17-19, emphasis omitted.) As set forth above, the Court’s June 28, 2019 minute order provides, inter alia, “Stipulated judgment entered for Plaintiff Mostafavi Law Group, APC, a California Professional Corporation against Defendant Law Offices of Larry Rabineau, APC and Defendant Rabineau, Larry on the Complaint filed by MOSTAFAVI LAW GROUP APC on 12/02/2014 for damages of $25,000.01 for a total of $25,000.01.” (Emphasis added.) In addition, on June 28, 2019, a Judgment was entered in this action indicating, inter alia, “Judgment is hereby entered in favor of Plaintiff MOSTAFAVI LAW GROUP, APC, following an offer of compromise pursuant to Code Civ. Proc., § 998 by Defendants LAW OFFICES OF LARRY RABINEAU, and LARRY RABINEAU, (collectively as ‘Defendants’), and timely acceptance by Plaintiff MOSTAFAVI LAW GROUP, APC for the sum of $25,000.01.”

            In Lemaire v. Cox (1985) 171 Cal.App.3d 297, 299, cited by Defendants, the Court of Appeal noted that “[t]he principal issue on this appeal is whether a partial adjudication of issues pursuant to Code of Civil Procedure section 437c constitutes a ‘trial’ under Code of Civil Procedure section 583, subdivision (b).” The Court of Appeal noted that “[o]n September 16, 1982, Lemaire filed a motion for summary adjudication of issues pursuant to Code of Civil Procedure section 437c. The motion was granted in part and denied in part. On March 23, 1984, approximately five years and six months after the complaint and cross-complaint were filed, Lemaire filed a motion to dismiss the cross-complaint pursuant to Code of Civil Procedure section 583, subdivision (b). The motion was granted and [the] appeal followed.” (Ibid.) The Court of Appeal affirmed the judgment of dismissal. (Id. at p. 302.)

            The Lemaire Court noted that “Cox argues that the court erred in dismissing the action because the ‘trial’ had commenced within the five-year period when the court heard and granted in part Lemaire’s motion for summary adjudication of issues. Cox relies on Berri v. Superior Court (1955) 43 Cal.2d 856 [279 P.2d 8], where the Supreme Court ruled that ‘a partial trial of an action will take the case out of the operation of section 583.’…Berri involved a situation where plaintiff’s action had been dismissed for failure to amend his complaint after defendant’s demurrers had been sustained. The court stated: ‘Where a demurrer has been sustained without leave to amend, or the time given to amend has expired, the matter has reached such a stage that a final determination of the action is contemplated, and hence section 583 does not require a dismissal because of the lapse of five years since the commencement of the action. There is nothing in the instant case to indicate other than that the case is to be finally disposed of on issues of law -- by way of demurrer.’…Our present case differs substantially from Berri. There had been no dismissal of the cross-complaint and numerous issues remained to be tried after the partial adjudication of issues.” Similarly here, the subject June 28, 2019 judgment did not include one of the plaintiffs in this action, Amir Mostafavi.

            Defendants also note that in McDonough Power Equipment Co. v. Superior Court of Los Angeles County, supra, 8 Cal.3d at pages 531-532, the California Supreme Court found that “section 656, which is found within title 8 of part 2 of the code (‘Of the Trial and Judgment in Civil Actions’), does not provide an exclusive definition of ‘trial’ or ‘new trial,’ nor does it establish an identity of meaning between the term ‘trial’ as used in section 656 and as used in section 583. On the contrary, in defining ‘trial’ we have said ‘that it is the determination of an issue of law or fact’ or ‘the examination . . . of the facts or law put in issue in a cause . . . .’ Witkin recognizes that ‘[in] its broad meaning the term includes a trial on the law. But whether a hearing on demurrer constitutes a ‘trial’ usually depends upon the language and purpose of the particular statute.’” (Internal citations omitted.) Defendants assert that here, the June 28, 2019 judgment “was not a trial because it was not a trial on the law.” (Reply at p. 3:22-23.) Indeed, as noted by Defendants, “[t]he ‘stipulated judgment’ was not the result of ‘the determination of an issue of law or fact’ or ‘the examination...of the facts or law put in issue in a cause...’” (Reply at p. 3:23-24.)[4]

In light of the foregoing authority, the Court does not find that Plaintiffs have shown that the June 28, 2019 judgment constitutes a “trial” for purposes of Code of Civil Procedure section 583.310.

In the opposition, Plaintiffs also assert that the five-year period was tolled while the action was pending on appeal. Plaintiffs cite to Bergin v. Portman (1983) 141 Cal.App.3d 23, 26, where the Court of Appeal found that “[i]n determining whether plaintiffs’ action was subject to dismissal we may not ignore subdivision (f), which is expressly made applicable to all other subdivisions of section 583. Reading subdivisions (b), (c) and (f) as a whole compels the conclusion that in computing the date by which plaintiffs’ action had to be brought to trial in order to avoid dismissal, the time during which the court’s jurisdiction to try the action was suspended because of defendant’s appeal from the summary judgment must be excluded from the overall five-year period commencing with the filing of the complaint.”

Plaintiffs appear to argue that this action was pending on appeal from October 2, 2019, to May 14, 2021. But it is unclear why Plaintiffs assert that this period started on October 2, 2019. As Plaintiffs acknowledge, on October 31, 2019, the Court issued a minute order in this action providing, inter alia, that “[t]he Court orders the case stayed pending appeal base [sic] upon the Notice of filing of Notice of Appeal on 10/31/19 and Westphal v. Westphal 61 Cal App. 2nd,544.” (Mostafavi Decl., ¶ 9, Ex. B.) Plaintiffs also assert that “[t]he stay was lifted based on the final status conference to September 13, 2021 set by the Court.” (Opp’n at p. 4:18-19.) But Plaintiffs do not appear to cite any order indicating that the stay was lifted on September 13, 2021.

As the parties acknowledge, on May 14, 2021, the Court issued a minute order providing “Court in receipt of remittitur filed 05/05/21.” (Mostafavi Decl., ¶ 12, Ex. E.) The Court notes that there are 552 days between October 31, 2019 and May 5, 2021, the time period the case was stayed pending the appeal. As discussed, this action was filed on December 2, 2014. Both parties agree that five years after this date is December 2, 2019. (See Mot. at p. 3:11-23; Opp’n at p. 2:5-6.) The Court notes that 552 days after December 2, 2019 is June 6, 2021.

In addition, Plaintiffs cite to Emergency Rule 10(a) which, as set forth above, provides that “[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).) The Court notes that 182 days after June 6, 2021 is December 5, 2021.[5]

In the opposition, Plaintiffs also assert that “[t]he five year statutory period is tolled from June 20, 2019, or the date of the settlement to the date when the Court vacated the judgment entered October 2, 2019.” (Opp’n at p. 4:4-5.) Plaintiffs cite to Canal St. v. Sorich (2000) 77 Cal.App.4th 602, 608, where the Court of Appeal noted that “since Varwig the five-year statute has been amended to particularly incorporate what had been simply a judicially created exception to the mandatory five-year dismissal. The computation of the five-year period now specifically excludes the time during which bringing the action to trial was impossible, impracticable, or futile. (§ 583.340, subd. (c).) As both Schiro and Brown & Bryant, Inc., conclude, the time during which a settlement agreement is in effect tolls the five-year period, for the reason that attempting to bring an action to trial when all issues have been resolved through settlement would be futile.”

Plaintiffs’ counsel states that “on June 20, 2019, MLG’s counsel hand-wrote MLG’s acceptance onto the offer itself…Thereafter, on June 28, 2019, the court entered judgment in favor of MLG pursuant to section 998, subdivision (b)(1)…” (Mostafavi Decl., ¶ 6.) The Court notes that on October 2, 2019, the Court issued a minute order providing, inter alia, that “[t]he Court grants Rabineau’s motion for relief from void judgment.” Plaintiffs note that there are 104 days between June 20, 2019 and October 2, 2019. The Court notes that 104 days after December 5, 2021 is March 19, 2022.

Plaintiffs also assert in the opposition that “[b]eginning on March 16, 2020, civil jury trials were suspended in the Los Angeles County Superior Court due to COVID-19. Pursuant to the Presiding Judge’s order of July 10, 2020, civil jury trials would resume on the first court day in January 2021, which is January 4, 2021. Therefore, this time period—March 16, 2020, to January 4, 2021—which is 294 days, is excludable.” (Opp’n at p. 4:23-27, emphasis omitted.) Defendants counter that March 16, 2020 through January 4, 2021 is “an irrelevant period of time because the instant matter was stayed during this time due to the appeal…the stay period is from October 31, 2019 (when Plaintiff filed appeal) through May 5, 2021 (when stay was lifted).” (Reply at pp. 4:24-5:2.) As set forth above, the Court included in the calculations of the tolling of the five-year period the 552 days between October 31, 2019 and May 5, 2021.

Plaintiffs also assert, without citing to any supporting evidence, that “[i]t was impossible for Department #50 to proceed with jury trials from January 4, 2021, to May 11, 2021, due to the requirements of social distancing, the number of attorneys and parties involved in jury trials, and the minimum length of jury trials. Therefore, this time period—January 4, 2021, to May 11, 2021—which is 127 days, is excludable.” (Opp’n at p. 5:1-5.) In addition, Plaintiffs assert without citing to supporting evidence that “[a]lthough Department #50 reopened for jury trials on May 11, 2021, it could only conduct jury trials in smaller cases, i.e., cases involving fewer parties and taking less time than the instant case. It remained impossible for Department #50 to conduct a jury trial in a case like the instant one until April 4, 2022…Therefore, this time period—May 11, 2021, to April 4, 2022—which is 328 days, is excludable.” (Opp’n at p. 5:5-13.) The Court notes that even if the five-year period were further tolled for 455 additional days (127 days plus 328 days), as Plaintiffs contend, 455 days after March 19, 2022 is June 17, 2023. Here, the trial date is currently set for February 21, 2024.

Plaintiffs also appear to assert that there was “[t]olling based on impossibility, impractically [sic], or futility.” (Opp’n at p. 5:14.) Plaintiffs cite to Chin v. Meier (1991) 235 Cal.App.3d 1473, 1474-1475, where the Court of Appeal held that “Code of Civil Procedure section 583.340, subdivision (c) tolling includes the aggregate time a case is continued because of courtroom unavailability regardless of whether a reasonable time remains to bring the action to trial before the expiration of the five-year limitation period.”[6]

Plaintiffs assert that here, “[o]n the Court’s own motion, the Court has continued the proceedings twelve times…” (See Opp’n at pp. 5:26-6:16.) In the reply, Defendants note that “[t]he ‘twelve’ continuances Plaintiff[s] cite[] in [their] Opposition are hearing continuances, not trial continuances (except for one) and Plaintiff[s] cite[] zero authority that hearing continuances toll the 5-year statute.” (Reply at p. 6:12-15.) Indeed, none of the orders referenced by Plaintiffs on pages 5:27-6:16 of the opposition appear to state that the Court continued the trial date in this action on its own motion. The only minute orders identified by Plaintiffs that appear to reference a trial date are the Court’s November 15, 2021 minute order, which provides, inter alia, that “Jury Trial is scheduled for 09/07/2022 at 09:30 AM in Department 50 at Stanley Mosk Courthouse,” and the Court’s November 8, 2022 minute order which provides, inter alia, that “[o]n the Court’s own motion, the Jury Trial scheduled for 11/29/2022 is advanced to this date and vacated…” (Mostafavi Decl., ¶¶ 19, 16, Exs. L, I.)    

 In Chin, cited by Plaintiffs, the Court of Appeal noted that “for purposes of the five-year limitation period, a court-ordered continuance when both sides announce ‘ready’ and no courtroom is available is to be treated as a discrete tolling event. ‘[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 [here 50 days because of a pending writ petition in the Court of Appeal], 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.” (Chin v. Meier, supra, 235 Cal.App.3d at p. 1478.) Here, Plaintiffs do not appear to point to any instance of a “a court-ordered continuance when both sides announce ‘ready’.” (Ibid.)

In addition, in De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 368, cited by Defendants in the motion, “[i]ntervener and appellant Star Insurance Company (Star) appeal[ed] from a judgment of dismissal for failing to bring its complaint in intervention to trial within the five-year statutory period…Star contend[ed] the five-year limitation period did not bar its action because the impracticability exception, based on court congestion, tolled the five-year limitation period.” The Court of Appeal disagreed and affirmed the judgment. The De Santiago Court found as follows:

“In light of case precedent emphasizing that reasonable diligence is a critical factor in determining whether the impracticability exception tolls the five-year limitation period, we conclude, contrary to Chin, that when determining whether the impracticability exception applies and tolls the five-year period, reasonable diligence must be taken into consideration, particularly with regard to the period between the last continuance and the five-year mark. (Tamburina, supra, 147 Cal.App.4th at p. 336; see also Sanchez, supra, 109 Cal.App.4th at p. 1270; Moss v. Stockdale, Peckham & Werner, supra, 47 Cal.App.4th at p. 502; Wale, supra, 206 Cal. App. 3d at p. 133.)

Where there is the possibility that Star could have brought the case to trial before expiration of the five-year mark, despite trial continuances, we cannot conclude the continuances resulted in impracticability. Reasonable diligence after the continuances is intrinsic to the determination of the impracticability exception, whether it is considered in determining the causal connection factor or as a separate factor. We thus reject Chin to the extent it concludes that the trial court must merely subtract the aggregate periods of time attributable to each court-ordered continuance because of courtroom unavailability, without considering whether the plaintiff was reasonably diligent in bringing the case to trial, particularly as the five-year mark approaches. (Chin, supra, 235 Cal. App. 3d at p. 1479.)

To conclude otherwise would wreak havoc on application of the five-year limitation period. In effect, every court-ordered continuance due to courtroom unavailability would toll the five-year limitation, even if it was nevertheless possible to bring the case to trial within the five-year limitation period upon exercising reasonable diligence. It is unlikely this was the intent of the Legislature in enacting section 583.340, subdivision (c).” (De Santiago v. D & G Plumbing, Inc., supra, 155 Cal.App.4th at pp. 376-377.)

Here, Plaintiffs do not appear to demonstrate (or even assert) in the opposition that they exercised reasonable diligence in bringing the instant case to trial.

Based on the foregoing, the Court finds that Defendants have demonstrated that the instant action shall be dismissed, as 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 grants Defendants’ motion to dismiss.   

The Court orders Defendants to give notice of this ruling.

DATED:  January 30, 2024                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court