Judge: Teresa A. Beaudet, Case: BC689037, Date: 2023-02-14 Tentative Ruling

Case Number: BC689037    Hearing Date: February 14, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On January 3, 2018, Plaintiff Rick Siegel (“Siegel”) filed this action against Defendants

David A. Alessi (“Alessi”); Robert A. Koenig (“Koenig”); Alessi & Koenig; Alessi & Koenig, a Professional Corporation; and Alessi & Bayard. Siegel filed the operative Second Amended Complaint (“SAC”) on July 29, 2019, asserting causes of action for (1) breach of fiduciary duties, (2) constructive fraud, (3) intentional misrepresentation, and (4) legal malpractice.

On March 8, 2019, Koenig filed a Cross-Complaint against Alessi for indemnity and contribution. On February 10, 2020, Alessi filed a Cross-Complaint against a number of Cross-Defendants, asserting causes of action for equitable indemnity and comparative indemnity.

Alessi now moves to dismiss the SAC for failing to bring the action to trial within five years. Koenig also moves for an order dismissing the complaint in this action for failure to bring the matter to trial within 5-years. Plaintiff filed a joint opposition to both motions. 

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.)

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).)

The instant case was filed on January 3, 2018. Five years from January 3, 2018 is January 3, 2023. Six months after January 3, 2023 is July 3, 2023.

As an initial matter, Koenig and Alessi both assert that Emergency Rule 10 does not “protect” Plaintiff here. Koenig asserts that Emergency Rule 10 is not valid because it is not a statute. Both Koenig and Alessi cite to Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 828, where the Court of Appeal noted that “[i]n this case, the trial court found that, with the six-month extension pursuant to emergency rule 10(a), Ables had until January 24, 2021, to bring her civil action to trial. Because emergency rule 10(a) is not a statute but an administrative rule, it did not extend Ables’s deadline pursuant to statute and did not trigger section 583.350’s extra six-month period. Ables’s failure to establish a statutory ‘extension, excuse, or exception’ is fatal to her appeal, and the trial court properly dismissed her case.”

Koenig asserts that “the reasoning in Ables, namely that Emergency Rule 10 does not qualify as an extension by statute for Code of Civil Procedure § 583.350 purposes, applies equally to the same requirement in Code of Civil Procedure § 583.360.” (Koenig Mot. at p. 6:24-26.)[1] But as Plaintiff notes, the Ables Court more narrowly found that “[b]ecause emergency rule 10(a) is not a statute but an administrative rule, it did not extend Ables’s deadline pursuant to statute and did not trigger section 583.350’s extra six-month period.” (Ables v. A. Ghazale Brothers, Inc., supra, at p. 828, emphasis added.)

In Ables, “[o]n February 1, 2021, and February 3, 2021, Ghazale Brothers and Central Freight, respectively, brought separate motions to dismiss Ables’s action for failure to bring it to trial within five years after its commencement.” (Ables v. A. Ghazale Brothers, Inc., supra, 74 Cal.App.5th at p. 826.) “[T]he trial court found that, with the six-month extension pursuant to emergency rule 10(a), Ables had until January 24, 2021, to bring her civil action to trial.” (Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 828.) Thus, the motions to dismiss in Ables were filed after the five year and sixth month period had already expired in that case. The Ables Court found that Emergency Rule 10 did not provide an additional extension, i.e., it “did not trigger section 583.350’s extra six-month period.” (Ibid.)

Here, by contrast, five years and six months from the date the instant case was filed is July 3, 2023, as noted by Plaintiff. The trial date in this matter is currently set for March 22, 2023, before July 3, 2023.

Alessi also argues that “[i]f Emergency Rule 10 did not extend the five-year deadline ‘pursuant to statute’ under Code of Civil Procedure § 583.350, then the Ables court necessarily held that Emergency Rule 10 did not extend the deadline to bring an action to trial under Government Code § 68115(a)(6). Put differently, if Emergency Rule 10 was a valid of [sic] exercise of authority ‘pursuant to statute’ under Government Code § 68115(a)(6), then it would also have been an extension under Code of Civil Procedure § 583.350. Therefore, the necessary result of the Ables decision is that Emergency Rule 10 is not ‘pursuant to statute’ and so this lawsuit must be dismissed because it was not brought to trial within five years of being filed.” (Mot. at p. 8:8-16.) The Court does not understand this argument, and notes that Government Code section 68115 does not contain the language “pursuant to statute.” Government Code section 68115, subdivision (a)(6) provides:  

“When war, an act of terrorism, public unrest or calamity, epidemic, natural disaster, or other substantial risk to the health and welfare of court personnel or the public, or the danger thereof, the destruction of or danger to the building appointed for holding the court, a large influx of criminal cases resulting from a large number of arrests within a short period of time, or a condition that leads to a state of emergency being proclaimed by the President of the United States or by the Governor pursuant to Section 8625, threatens the orderly operation of a superior court location or locations within a county or renders presence in, or access to, an affected court facility or facilities unsafe, the presiding judge may request and the Chairperson of the Judicial Council may, notwithstanding any other law, by order authorize the court to do one or more of the following:…

(6) Extend the time periods provided in Sections 583.310 and 583.320 of the Code of Civil Procedure to bring an action to trial. The extension shall be for the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council.”

             The Court does not find that Ables “invalidated” Emergency Rule 10, as Alessi and Koenig contend. Accordingly, the Court denies Alessi’s and Koenig’s motions to dismiss.  

Conclusion

For the reasons set forth above, the Court denies Alessi’s and Koenig’s respective motions to dismiss. 

The Court orders Plaintiff to give notice of this ruling.

DATED:  February 14, 2023                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court