Judge Teresa A. Beaudet, Case BC665798 2023-01-26 Tentative Ruling

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed this Proposition 65 (“Prop 65”) action on June 20, 2017. The operative Second Amended Complaint (“SAC”) was filed on January 19, 2021, alleging that various defendants exposed California consumers to lead without Proposition 65 warnings through the manufacture and sale of certain food products (spices). This action was later consolidated with Consumer Advocacy Group, Inc. v. Viva Bargain Center, Inc. (Case No. 19STCV24048), in which the chemicals at issue were lead and arsenic.

Defendants Gel Spice Company, Inc. (“Gel Spice”), Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”) now move for an order dismissing this action pursuant to the Code of Civil Procedure sections 583.310 and 583.360. Plaintiff opposes.

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).)

Defendants assert that the instant action must be dismissed because “Plaintiff has failed to bring this action to trial within 5 years and 6 months of the date of commencement of the action, there is no agreement between the parties pursuant to Code of Civil Procedure section 583.330, and there is no tolling of the time within which an action must be brought to trial other than the 6-month extension pursuant to the California Rules of Court, Appendix 1: Emergency Rules Related to COVID-19, Emergency rule 10(a).” (Notice of Mot. at p. 2:6-11.)

As Defendants note, the instant case was filed on June 20, 2017. Defendants indicate that December 20, 2022 marked five years and six months from the filing of this case.

Defendants also note that on November 9, 2022, the Court issued a minute order providing, inter alia, that “[e]x parte application is heard and argued. After hearing argument, the Court orders as follows: Pursuant to Code of Civil Procedure section 583.34 [sic], the Court finds that it is impossible, impracticable and futile to bring this action to trial prior to the expiration of 5 years from the filing date due to the current trial and four others that are ahead of this case due to the backlog from Covid. Consequently, the Court vacates the 12/7/22 trial date and the 11/17/2022 Final Status Conference date and sets a trial setting conference.”

Defendants assert that the Court’s November 9, 2022 finding “did not complete the necessary factual inquiry to compute the five-year period and did not consider all circumstances

As an initial matter, Plaintiff asserts in the opposition that Defendants failed to timely bring a motion pursuant to Code of Civil Procedure section 1008 for the Court to reconsider its November 9, 2022 Order. Pursuant to Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order…” Pursuant to Code of Civil Procedure section 1008, subdivision (e), “[t]his section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

Defendants assert that they “need not seek reconsideration because the Court’s November 9, 2022 Ruling is ineffective,” (Reply at p. 2:11-13), but do not cite to any legal authority to support this proposition. As set forth above, Code of Civil Procedure section 1008 “specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court…” (Code Civ. Proc., § 1009, subd. (e).) In any event, to the extent Defendants are not seeking reconsideration of the November 9, 2022 Order, the Court still finds that Defendants have not demonstrated that the action must be dismissed pursuant to Code of Civil Procedure section 583.360.

Defendants cite to Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100, where the Court of Appeal noted that “[a] circumstance that does not qualify for automatic tolling under section 583.340(b) may nonetheless be excludable from the five-year period if the circumstance makes it impossible, impracticable, or futile to bring the action to trial…In deciding whether these exceptions are met, the court must consider all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.” (Internal quotations and citations omitted.)

Defendants assert that Plaintiff has not exercised reasonable diligence in prosecuting its case. In support of this assertion, Defendants indicate that Plaintiff did not take its first deposition in this case until July 19, 2022. (Raglin Decl., ¶ 5.) Defendants also indicate that Plaintiff waited until August 12, 2022 to depose Defendants’ expert Dr. Bloom, which is 3 years and 24 days after Defendants put Plaintiff on notice that they had retained Dr. Bloom as an expert. (Raglin Decl., ¶ 6.) In addition, Defendants indicate that Plaintiff waited until August 24, 2022 to depose Defendants’ expert Dr. Beck, which more than 2 years and 2 months after Defendants put Plaintiff on notice that they had retained Dr. Beck as an expert. (Raglin Decl., ¶ 7.) Defendants assert that as of the filing of the instant motion, Plaintiff has yet to depose two of Defendants’ experts and has yet to complete the deposition of PMQ Andrew Kuszynski. (Raglin Decl., ¶ 11.)

Defendants also note that on November 7, 2022, Plaintiff filed an ex parte application to continue certain FSC compliance requirement deadlines and to shorten time or extend the date for hearing on Plaintiff’s motion to compel. Defendants note that in the ex parte application, Plaintiff indicated, inter alia, that “[e]xpert Depositions of several of Defendants experts are scheduled for after the deadline to submit trial documents,” that a second session of the deposition of Gel’s PMQ would be required, and that “Defendants have inundated CAG and its Counsel in the present and several other cases which has hampered CAG’s trial preparation; and CAG’s counsel have so many commitments (see list attached to Ralidis Declaration) that compliance with all of the F.S.C. requirements will be difficult or impossible to achieve by November 9, 2022...” (See Plaintiff’s November 7, 2022 Ex Parte Application.)

In its opposition, Plaintiff asserts that it has diligently prosecuted its claims against Defendants. Plaintiff indicates that on July 26, 2019, it served notices of taking depositions of each of the Defendants’ PMQs. (Yeroushalmi Decl., ¶ 11.) Plaintiff asserts that Defendants failed to provide dates for the deposition and did not produce its PMQ in response to properly noticed depositions. (Yeroushalmi Decl., ¶ 12.) Plaintiff also indicates that on or about July 2, 2018, the parties agreed to phase the discovery to be conducted, and Plaintiff agreed to stay discovery while the parties discussed discovery phasing. (Yeroushalmi Decl. ¶¶ 13-14.)

Plaintiff also asserts that it has been diligently conducting written discovery. Plaintiff indicates that on October 29, 2018, Plaintiff propounded upon Gel Spice its first set Requests for Production, Requests for Admission, Special Interrogatories, and Form Interrogatories. (Yeroushalmi Decl., ¶ 15.) Plaintiff indicates that it “extensively met and conferred” and was then forced to move for an order compelling Defendant to provide further responses to the first set of discovery. (Yeroushalmi Decl., ¶ 17.) Plaintiff also indicates that it served a second set of discovery on July 12, 2019. (Yeroushalmi Decl., ¶ 18.)

Plaintiff also indicates that on March 26, 2019, the parties agreed to phase the action, and on or about March 26, 2019, Defendants agreed to stipulate to Phase One of this case in favor of Plaintiff. (Yeroushalmi Decl., ¶ 19.) Plaintiff asserts that it served discovery relating to Phase Two on Defendants on May 11, 2020, and was then forced to file motions to compel as to the discovery. (Yeroushalmi Decl., ¶¶ 20-21.) Plaintiff also served two additional sets of discovery regarding Phase Two of the action on February 25, 2021, and April 23, 2021. (Yeroushalmi Decl., ¶ 22.) Plaintiff indicates that Defendant propounded upwards of 3,500 discovery requests in Phase Two of the matter which required considerable time and resources to respond to. (Yeroushalmi Decl., ¶ 24.)

As to Defendants’ PMQ, Plaintiff asserts that at his deposition on October 20, 2022, the PMQ “revealed the existence of a critical document which was withheld from discovery…consisting of lab tests on the products in issue…for which a second session of such [PMQ] was recognized as being required at the time…” (Yeroushalmi Decl., ¶¶ 26-27.) Plaintiff indicates that it filed motions to compel production of these documents on November 4, 2022. (Yeroushalmi Decl., ¶ 27.) Plaintiff also notes that hearings on Plaintiff’s and Defendants’ motions for summary judgment were heard on December 5, 2022, two days before the December 7, 2022 trial date. (Yeroushalmi Decl., ¶ 31.)

In the motion, Defendants also assert that “[i]n the Court’s November 9, 2022 Minute Order, the basis for impossibility, impracticability, or futility in bringing this action to trial was the Court’s own calendar. But there are regularly multiple trials for the same day, and trials must often trail one another—this is an ordinary incident of proceedings.” (Mot. at p. 8:25-28.) The Court of Appeal in the Gaines case found that “[b]ut what is meant by establishing a condition of impossibility, impracticability, or futility in the first instance? The answer depends on both the timing and nature of the interference. It is well established that [e]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation. 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 [is] not within the contemplation of these exceptions.” (Gaines v. Fidelity National Title Ins. Co., supra, 62 Cal.4th at p. 1101 [internal quotations and citations omitted].)

Defendants also assert that “based on the December 20, 2022 five-year rule deadline, the ordinary incident of waiting for a place on this Court’s calendar would only have deprived CAG of thirteen (13) days of the five-year period. That is not a ‘substantial portion’ of the five-year period for prosecuting the lawsuit, so this Court’s unavailability to try this action on December 7, 2022, does not qualify as a circumstance of impracticability.” (Mot. at p. 8:28-9:4.)[1] In Gaines, the Court of Appeal found that “when the delay involves the time necessary for the parties to conduct ordinary incidents of proceedings leading up to the trial, the interference must deprive the plaintiff of a substantial portion of the five-year period for prosecuting the lawsuit in order to qualify as a circumstance of impracticability.” (Gaines v. Fidelity National Title Ins. Co., supra, 62 Cal.4th at p. 1102 [internal quotations omitted].)

Plaintiff counters that the circumstances here warrant tolling of the five-year period under Code of Civil Procedure section 583.340, subdivision (c). Plaintiff cites 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 “[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.” (Id. at p. 1478 [internal citation omitted, emphasis added].)

Plaintiff also cites to Lazelle v. Lovelady (1985) 171 Cal.App.3d 34, 40, where the Court of Appeal found that “notwithstanding appellants’ questionable diligence, we conclude that the [former Code Civ. Proc., § 583, subd. (b)] period was tolled for the 69 days the case trailed on the civil active list due to the unavailability of a judge and courtroom.” (Internal emphasis omitted.)[2] The Lazelle Court noted that “[a]n exception to dismissal under section 583, subdivision (b) has…been recognized when, as here, the delay in bringing a case to trial is due, at least partially, to court congestion. As a general rule, that time consumed by the delay caused by ordinary incidents of proceedings like . . . the normal time of waiting for a place on the court’s calendar is [not] to be excluded from a computation of the five-year period. When, however, a plaintiff has waited the normal time for a place on the calendar and has been assigned such a place well within the five-year period, his inability thereafter to proceed to trial because of continued court congestion should not be chargeable to the five-year period. . . . It is monstrous to foreclose a litigant’s substantial rights because of the inconvenience incident to providing a courtroom. . . . [Court] congestion is no reason to preempt one’s day in court when there is a reasonable time to provide it.” (Id. at pp. 41-42 [internal quotations and citations omitted].)

Lastly, Defendants cite to Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1418, where the Court of Appeal “conclude[d] the trial court did not abuse its discretion in dismissing the case based on plaintiffs’ failure to try the case within five years.” In Jordan, the plaintiffs argued that “the five-year period was tolled because it was legally impossible for them to bring this action to trial due to the following two circumstances: (1) when the Riverside Superior Court declared an official moratorium on all civil trials; and…(2) when the civil department had a de facto moratorium on all but priority cases, and was in fact trying only 20 or so civil cases per year.” (Id. at p. 1421 [internal quotations omitted].) The Court of Appeal found that “[w]hile the two court-declared moratoriums on civil trials prevented civil cases from being tried, these moratoriums did not prevent or interfere with plaintiffs’ prosecuting their case. It is apparent from the record that plaintiffs were not ready for trial at the time of the moratoriums. Therefore, as to the instant case, the two moratoriums did not make it impossible, impracticable, or futile to bring the action to trial.” (Id. at p. 1421 [internal quotations omitted].) Defendants assert that here, “according to CAG’s November 8, 2022 Ex Parte Application, CAG was still not ready to try this action on December 7, 2022. So, this Court’s unavailability had no impact on CAG’s failure to bring this action to trial within the five-year period.” (Mot. at p. 9:23-25.)

Plaintiff counters that at the time the Court vacated the December 7, 2022 trial date, Plaintiff did not request a continuance of the trial date and had only requested an extension to submit trial documents. Plaintiff’s ex parte application filed on November 7, 2022 does not request that the December 7, 2022 trial date be continued. Rather, Plaintiff indicates in the application that it seeks to “Continue Certain F.S.C Compliance Requirements deadlines,” and to “Shorten Time and/or Extend Dates for…a Hearing on Motion to Compel Further Document Production from Defendant GEL SPICE COMPANY, INC. [“GEL”], its P.M.Q., Andrew Kuszynski…and… the prefatory Informal Discovery Conference.” (Plaintiff’s November 7, 2022 Ex Parte Application at p. 2:3-10.)[3]

For the reasons set forth above, the Court denies Defendants’ motion to dismiss.

[1]As set forth above, on November 9, 2022, the Court vacated the December 7, 2022 trial date in this matter.

[2]The Lazelle Court noted that “[a]t all times relevant hereto, section 583, subdivision (b) provided, in part, ‘[any] action . . . shall be dismissed by the court in which the same shall have been commenced . . . 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.’” (Lazelle v. Lovelady, supra, 171 Cal.App.3d at p. 38.)

[3]As set forth in Plaintiff’s ex parte application, the FSC was set for November 14, 2022.

consumer advocacy group, inc., et al., Plaintiff, vs. gel spice company, inc., et al. Defendants.	Case No.:	BC665798 [c/w 19STCV24048]
	Hearing Date:	January 26, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANTS GEL SPICE CO., INC., BIG LOTS STORES, INC., GROCERY OUTLET, INC. AND TARGET CORPORATION’S MOTION TO DISMISS PURSUANT TO CODE CIV. PROC. §§ 583.310 and 583.360

Superior Court of California

County of Los Angeles

Department 50