Judge: Teresa A. Beaudet, Case: BC650876, Date: 2022-09-12 Tentative Ruling

Case Number: BC650876    Hearing Date: September 12, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”).

On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”). The operative Third Amended Complaint (“TAC”) in the first action was filed on July 19, 2021, and the two cases were subsequently consolidated.[1] In the TAC, Plaintiffs allege causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute.

            Following rulings on defendants’ amended special motion to strike and demurrer to the TAC, the remaining causes of action are tortious breach of implied covenant of good faith and fair dealing, breach of contract, and unfair business practices against FIE only; and professional negligence against Chern only.[2]

            FIE and Chern now move for an order dismissing the operative complaint pursuant to Code of Civil Procedure section 583.310. Plaintiffs oppose. 

Request for Judicial Notice

The Court grants FIE and Chern’s request for judicial notice as to Exhibits 1-5 only.

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.)

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).)
            FIE and Chern assert that the time to bring this action to trial has expired. As set forth above, Plaintiffs’ original complaint in the lead action was filed on February 16, 2017. FIE and Chern indicate that five years after this date is February 16, 2022, and adding an additional six months under Emergency Rule 10(a) moves the deadline to August 16, 2022.

Plaintiffs assert that it was “impossible, impracticable, or futile” under Code of Civil Procedure section 583.340, subdivision (c) for Plaintiffs to bring this action to trial by August 16, 2022. The parties note that on June 15, 2022 (approximately two months before August 16, 2022), the Court issued a minute order indicating, inter alia, that “[o]n the Court’s own motion, the Jury Trial scheduled for 06/15/2022 is continued to 09/21/22.” The “nature of proceedings” referenced in the June 15, 2022 minute order is “Final Status Conference; Jury Trial.”

 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.” The Chin Court noted that “[f]or 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…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…” (Id. at p. 1478.)  

As set forth in the transcript of the June 15, 2022 proceedings, the Court indicated “we’re not ready for you folks to go to trial because we have a trial going right now, and we have another two jury trials right behind that that have preference. So that is going to take us probably into August. So we’re going to have to move the final status conference and the jury trial to sometime I’m estimating August-ish.” (Zapf Decl., ¶ 22, Ex. 1, p. 3:5-11.) When the Court asked the parties about the date of August 31st for trial, FIE and Chern’s counsel (Ms. Zapf) indicated that “trial counsel has a trial scheduled August 29th.” (Id. at p. 3:15-20.) The Court then asked about the 21st of September. (Id. at p. 3:27.) Ms. Zapf indicated that September 21st could work with the caveat that she did not have availability from one of her designated experts. (Id. at p. 3:28-4:4.) Plaintiffs indicated that September 21st worked for them. (Id. at p. 4:6-8.)

FIE and Chern do not discuss the Chin case in their reply. However, they note that Plaintiffs did not bring the expiration of the five-year period to the court’s attention during the June 15, 2022 proceedings. (Zapf Decl., ¶ 22, Ex. 1.) FIE and Chern cite to De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 368, where “[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.” The Court of Appeal affirmed the judgment, and noted that “[e]ven though the trial continuance, from September 24, 2004, to August 8, 2005, was for 318 days, Star failed to establish that the final continuance was due to courtroom unavailability or that Star was reasonably diligent in prosecuting the case after the July 2005 hearing, during the final six months of the five-year period. During this time, Star had a duty to bring to the trial court’s attention the fact that the trial court set the trial for a date after expiration of the five-year period, and object. Upon becoming aware of the impending expiration of the five-year period, the trial court in all likelihood would have given the case priority for the purpose of trying the case before the five-year period expired. Star’s attorney failed to alert the trial court that the trial date was beyond the five-year mark of February 2, 2006, and thus, in effect, Star acquiesced in the court’s setting the trial date beyond the five-year mark.” (Id. at p. 374.) The Court notes that the facts of De Santiago are not exactly like those here, as the continuance of the trial date on June 15, 2022 was due to courtroom unavailability.

            The Court also notes that the De Santiago Court discussed Chin v. Meier (1991) 235 Cal.App.3d 1473, indicating that, “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. 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.” (De Santiago v. D & G Plumbing, Inc., supra, 155 Cal.App.4th 365, 376 [internal citations omitted].)

            As to the period between the June 15, 2022 continuance and the five-year mark, Plaintiffs argue throughout their opposition that they appeared and were ready for trial on June 15, 2022, approximately two-months prior to the five-year mark.   

FIE and Chern contend that Plaintiffs were not ready for trial on June 15, 2022. They point to the transcript of the June 15, 2022 Final Status Conference, which indicates that the Court asked whether anybody disagreed with continuing all the discovery and expert dates. (Zapf Decl., ¶ 22, Ex. 1, p. 4:19-21.) Ms. Zapf objected to the expert dates being moved, and also indicated that Plaintiffs’ depositions were still outstanding. (Id. at p. 4:22-5:3). Mr. Chang stated that all the related deadlines should be adjusted according to the new trial date, because “we have filed motions to compel after certain months of useless discovery requests…” (Id. at p. 5:6-9.) FIE and Chern also assert that Plaintiffs refused to participate in the process of submitting “joint trial document,” and did not timely file any trial preparation documents. (Zapf Decl., ¶ 16.) 

In any event, Plaintiffs assert that they were ready for trial before the five-year mark, and the Court continued the June 15, 2022 trial date due to courtroom unavailability. In Chin v. Meier (1991) 235 Cal.App.3d 1473, 1478, the Court of Appeal found that “[a] court-ordered continuance makes it impossible or impractical for a plaintiff to proceed to trial. Such an occurrence is not reasonably within the plaintiff’s control. This statutory construction favors a trial on the merits and assures a plaintiff is not penalized because of courtroom unavailability.” (Internal citation omitted).

In light of the foregoing, the Court finds that Code of Civil Procedure section 583.340, subdivision (c) tolling applies here, and that FIE and Chern have thus not demonstrated good cause to dismiss the action pursuant to Code of Civil Procedure section 583.360.[3] 

Conclusion

For the reasons set forth above, the Court denies FIE and Chern’s motion to dismiss. 

The Court orders FIE and Chern to give notice of this ruling.

DATED:  September 12, 2022                       ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court