Judge: Theresa M. Traber, Case: BC511769, Date: 2025-02-14 Tentative Ruling

Case Number: BC511769    Hearing Date: February 14, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 14, 2025                 TRIAL DATE: None Set

CASE:                         Patrick Minner v. Washington Motors LLC, et al.

CASE NO.:                 BC511769

MOTION TO DISMISS PURUSANT TO C.C.P. § 583.360

MOVING PARTY:               Defendant Washington Motors, LLC

RESPONDING PARTY(S): Unopposed

CASE HISTORY:

• 06/17/13: Complaint filed.
• 11/21/13: First Amended Complaint filed.
• 03/26/14: Second Amended Complaint filed.
• 07/31/14: Third Amended Complaint filed.
• 08/03/15: Defendant Carfax, Inc.’s motion for summary judgment granted.
• 08/26/15: Judgment entered in favor of Defendant Carfax, Inc. and against Plaintiff Patrick Minner pursuant to the Court’s granting of Defendant Carfax, Inc.’s motion for summary judgment.
• 10/01/15: Notice of Appeal filed.
• 10/02/15: Notice of Filing of Notice of Appeal filed.
• 02/10/16: Remittitur issued.
• 02/29/16: Amendments to complaint are filed which identified Defendant Richard Heller as Doe 1; Defendant Joel Heller as Doe 2; and Defendant Terry Smith as Doe 3.
• 08/11/16: Judgment of dismissal of Third Amended Complaint entered as to all Defendants.
• 03/27/20: Remittitur issued, reversing judgment of dismissal.
• 04/22/21: Notice of Appeal filed.
• 06/15/23: Remittitur issued affirming dismissal of the Smith and Heller defendants.
• 01/05/24: Amendment to complaint filed with identified Daniel Heller 2012 Trust as a Doe defendant. Plaintiff’s penmanship is unclear, so the Court is unable to ascertain which Doe number is applicable. However, the Court assumes Daniel Heller 2012 Trust was designated as Doe 4.

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STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            In the operative Third Amended Complaint (“TAC”), Plaintiff alleges that he went to Defendant Washington Motors, LLC (“Washington”) to purchase a reliable and dependable car. (TAC, ¶ 16.) Plaintiff was approached by a salesman, Reco Gutierrez, who was a salesman for Defendant Washington and an agent of Defendant Carfax, Inc. (“Carfax”). (TAC, ¶ 17.) After informing Mr. Gutierrez that he needed a reliable and dependable car, Mr. Gutierrez showed Plaintiff a 2003 PT Chrysler Cruiser (the “Subject Vehicle”). (TAC, ¶¶ 18-19.) Mr. Guiterrez assured Plaintiff that the Subject Vehicle was the perfect car, in excellent condition, and was reliable and dependable. (TAC, ¶¶ 21-22.) Plaintiff subsequently purchased the Subject Vehicle on June 27, 2011. (TAC, ¶ 35.) Plaintiff alleges that the Subject Vehicle was defective. (TAC, ¶ 95.)  

            The TAC alleges eleven causes of action for: (1) breach of oral and written contract, (2) violation of implied warranty of merchantability, (3) violation of the consumer remedies act, (4) violation of the California unfair competition act, (5) violation of the California false advertising act, (6) intentional misrepresentation, (7) negligent misrepresentation, (8) fraud and deceit, (9) intentional infliction of emotional distress, (10) negligent infliction of emotional distress, and (11) violation of the Uniform Fraudulent Transfer Act.

            On June 12, 2015, Plaintiff filed a motion to continue trial from July 28, 2015, to January 28, 2016. Defendant Washington opposed the motion. On July 7, 2015, after hearing, the Court granted Plaintiff’s motion to continue trial and trial was continued from July 28, 2015, to January 26, 2016. (07/07/15 Minute Order at p. 1.)

            On August 3, 2015, the Court granted Defendant Carfax, Inc.’s motion for summary judgment. On October 1, 2015, Plaintiff filed a Notice of Appeal as to the Court’s August 3, 2015 order.

            On December 18, 2015, Plaintiff filed a motion to continue trial, which Defendant Washington opposed. On January 6, 2016, after hearing, the Court granted Plaintiff’s motion to continue trial and trial was continued from January 26, 2016, to May 24, 2016. (01/06/16 Minute Order at p. 1.)

            On February 10, 2016, remittitur was issued, and it was noted that Plaintiff was in default as to his October 1, 2015 appeal. As such, the appeal was dismissed.

            On May 20, 2016, the Court held a Final Status Conference, at which there was no appearance by Plaintiff. (05/20/16 Minute Order at p. 1.) Plaintiff called the department, per the courtroom assistant, and stated that he was in the hospital and would not appear at the FSC. (05/20/16 Minute Order at p. 1.) The Court continued the FSC and motion to dismiss with prejudice to May 24, 2016. (05/20/16 Minute Order at p. 1.)

            On May 24, 2016, this matter was called for jury trial, as well as a Final Status Conference and hearing on the motion to dismiss, at which there was no appearance by Plaintiff. (05/24/16 Minute Order at p. 1.) Plaintiff called the Court on such date, per the courtroom assistant, and indicated that he would not appear due to doctor’s orders. (05/24/16 Minute Order at p. 1.) The Court indicated that no doctor’s note or any hospital documentation was provided to the Court. (05/24/16 Minute Order at p. 1.) Defendant Washington then made a renewed oral motion to dismiss the case with prejudice. (05/24/16 Minute Order at p. 2.) The Court granted Defendant Washington’s oral motion in part and dismissed this action per CCP § 581(b)(5) without prejudice. (05/24/16 Minute Order at p. 2.) The jury trial and FSC in this action were both placed off calendar. (05/24/16 Minute Order at p. 2.)  

            On June 13, 2016, Plaintiff filed a motion for reconsideration of the order dismissing the action, which was opposed by Defendant Washington.

            On July 13, 2016, after hearing, the Court granted Plaintiff’s motion for reconsideration; however, upon reconsideration, the Court reaffirmed its prior order dismissing this action without prejudice. (07/13/16 Minute Order at p. 1.)

            On August 11, 2016, judgment of dismissal was entered in favor of Defendants without prejudice.

            On September 8, 2016, Plaintiff filed a Notice of Appeal, which indicated that Plaintiff was appealing the Court’s dismissal of this action.  On January 22, 2020, the Second District Court of Appeal issued its opinion, which reversed this Court’s judgment following Plaintiff’s failure to appear at trial and remanded the case.

            On March 27, 2020, remittitur was issued, which indicated that the decision of the Court of Appeal issued on January 22, 2020, was now final.

            On July 22, 2020, Department 1 issued an order transferring this case to Judge Randolph M. Hammock in Department 47 for all further proceedings related to the remittitur. (07/22/20 Minute Order at p. 1.)

            On December 18, 2020, the Court held a Trial Setting Conference at which jury trial was set for July 25, 2022. (12/18/20 Minute Order at pp. 1-2.) The Court also set an OSC re: Dismissal of Defendants Smith and Heller for Plaintiff’s failure to serve for February 16, 2021. (12/18/20 Minute Order at p. 2.)

            On February 16, 2021, at the OSC re: Dismissal, the Court ordered Defendants Joel Heller, Richard Heller, and Terry Smith dismissed with prejudice from the complaint pursuant to CCP § 583.250. (02/16/21 Minute Order at p. 4.) 

            On April 22, 2021, Plaintiff filed a Notice of Appeal, which indicated that Plaintiff was appealing the Court’s February 16, 2021 order.  On April 11, 2023, the Second District Court of Appeal issued an opinion, which affirmed this Court’s February 16, 2021 order dismissing Defendants Joel Heller, Richard Heller, and Terry Smith.

            On June 15, 2023, remittitur was issued, which indicated that the decision of the Court of Appeal issued on April 11, 2023 had become final.

            Plaintiff filed a Petition for Review with the Supreme Court of California; however, such petition was denied, and the remittitur issued.

            Currently, a Trial Setting Conference is set for February 14, 2025.

            Defendant Washington moves to dismiss this action for Plaintiff’s failure to bring the action to trial within the time prescribed under CCP § 583.310 and as modified by California Rules of Court Appendix I, Emergency Rule 10. Defendant Washington’s motion to dismiss was filed and served on December 6, 2024.

            As of February 10, 2025, the motion to dismiss is unopposed. Any opposition was required to be filed and served at least nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).)

TENTATIVE RULING:

Defendant Washington Motors, LLC’s Motion to Dismiss Pursuant to CCP § 583.360 is GRANTED.

DISCUSSION:

Defendant Washington Motors, LLC’s Motion to Dismiss Pursuant to CCP § 583.360

            Legal Standard

            An “action is commenced when the complaint is filed” and subsequent amendments to a complaint does not alter the date an action was commenced. (Rosefield Packing Co. v. Superior Court in and for City and County of San Francisco (1935) 4 Cal.120, 125.) “An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) Parties may extend the time within an action may be brought to trial by the following means: (a) by written stipulation; or (b) by oral agreement made in open court, if entered in the minutes of the court or a transcript is made. (Code Civ. Proc., § 583.330, subd. (a)-(b).) “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.” (Code Civ. Proc., § 583.360, subd. (a).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 583.360, subd. (b).)  California Rules of Court, Emergency Rule 10(a) “which was passed by the Judicial Council of California during the COVID-19 pandemic, extended the five-year period in section 583.310 by six months . . . .” (Barron v. Santa Clara County Valley Transportation Authority (2023) 97 Cal.App.5th 1115, 1118.)

            Code Civ. Proc. § 583.340 states as follows:

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, subd. (a)-(c).)

An action is brought to trial when there “is the examination before a competent tribunal,

according to the law of the land, of questions of fact or of law put in issue by the pleadings, for the purpose of determining the rights of the parties.” (In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 254 [citation omitted].) “In a nonjury case, the swearing of a single witness satisfies this requirement; in jury cases, the impaneling of the jury suffices.” (Ibid.) “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Code Civ. Proc. § 12.) “If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as business of that office is concerned, that day shall be considered as a holiday for purposes of computing time under Sections 12 and 12a.” (Code Civ. Proc. § 12b.)

            Declaration of Counsel in Support of the Motion

            Counsel for Defendant Washington, Nick I. Iezza (“Iezza”) provides a declaration in support of the motion. Mr. Iezza states the following: on June 17, 2013, Plaintiff filed his original complaint in this action. (Iezza Decl., ¶ 2.) Trial was originally set for October 7, 2014, but was continued to July 28, 2015. (Iezza Decl., ¶ 3.) Plaintiff filed his First Amended Complaint on November 21, 2013; his Second Amended Complaint on March 26, 2014; and his Third Amended Complaint on July 31, 2014. (Iezza Decl., ¶ 4.) On June 12, 2015, Plaintiff filed a motion to continue trial, which was granted, and trial was continued to January 26, 2016. (Iezza Decl., ¶ 5.) On December 18, 2015, Plaintiff filed a motion to continue trial, which was granted, and trial was continued to May 24, 2016, with the Final Status Conference scheduled for May 20, 2016. (Iezza Decl., ¶ 6.)

            Plaintiff failed to appear for the May 20, 2016 Final Status Conference and the Court continued the Final Status Conference to May 24, 2016. (Iezza Decl., ¶ 7.) Plaintiff failed to appear for the May 24, 2016 Final Status Conference and trial. (Iezza Decl., ¶ 8.) Accordingly, the Court dismissed the action pursuant to CCP § 581(b). (Iezza Decl., ¶ 8.)

            On June 13, 2016, Plaintiff filed a motion for reconsideration of the order dismissing the action. (Iezza Decl., ¶ 9.) The motion was heard by the Court on July 13, 2016, and the Court upheld the dismissal of the action for failure to appear at the May 24, 2016 trial. (Iezza Decl., ¶ 9.) On August 11, 2016, the trial court dismissed the action and entered a judgment of dismissal as to Defendants. (Iezza Decl., ¶ 9.) On September 8, 2016, Plaintiff filed a Notice of Appeal of the Court’s August 11, 2016 order dismissing the action and such appeal was granted on January 22, 2020. (Iezza Decl., ¶¶ 10-11.) Remittitur was issued on March 27, 2020, and this action was remanded back to this Court for further proceedings. (Iezza Decl., ¶ 11.)

            On February 16, 2021, the Court granted its own motion to dismiss Defendants Richard Heller and Joel Heller pursuant to CCP § 583.250. (Iezza Decl., ¶ 13.) On April 22, 2021, Plaintiff filed a Notice of Appeal of the Court’s February 16, 2021 order. (Iezza Decl., ¶ 13.) On August 30, 2021, Plaintiff filed a Notice of Stay of Proceedings due to the appeal. (Iezza Decl., ¶ 13.) On April 11, 2023, the Second District Court of Appeal affirmed the trial court’s order dismissing Defendants Richard Heller and Joel Heller. (Iezza Decl., ¶ 13.) On June 14, 2023, Plaintiff’s petition for review of the Second District Court of Appeal decision concerning his appeal of the Court’s February 16, 2021 order was summarily denied by the Supreme Court of California. (Iezza Decl., ¶ 14.) On June 15, 2023, the Second District Court of Appeal issued remittitur. (Iezza Decl., ¶ 14.)

            Analysis

            Initially, the Court notes that Plaintiff has failed to oppose the instant motion to dismiss. As such, Plaintiff has conceded to all arguments raised therein as “[c]ontentions are waived when a party fails to support them with reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) The Court also informs Plaintiff that “[a] failure to oppose a motion may be deemed a consent to the granting of the motion.” (Cal. R. Ct., rule 8.54(c).)

            Defendant Washington contends that Plaintiff’s action should be dismissed for his failure to bring the action to trial within five years and six months. Plaintiff presents no argument to rebut Defendant Washington’s argument that neither his appeal of the Court’s May 24, 2016 dismissal of this action nor this Court’s February 16, 2021 dismissal of Joel Heller and Richard Heller made it impracticable for him to continue this action against Defendant Washington. (See Memo. of Ps and As at pp. 4-5.)

            Even if the Court were to reject Defendant Washington’s arguments, however, this would not salvage Plaintiff's case.  Under such a scenario, the time period from Plaintiff filing a notice of appeal on September 8, 2016, through March 27, 2020, when remittitur was issued (the “First Exclusionary Period”), would excluded from such computation as such time period was necessarily concerned with Plaintiff appealing this Court’s entry of judgment of dismissal. Time is excluded for purposes of CCP § 583.340 “[d]uring the period a prior dismissal is being reviewed on appeal [because] it would obviously be impossible to bring the case to trial.” (Wilshire Bundy Cor. v. Auerbach (1991) 228 Cal.App.3d 1280, 1286, fn. 10 (Wilshire Bundy)) The Court has calculated such period to span 1,296 days.

            Further, the time between Plaintiff filing a notice of appeal on April 22, 2021, and the remittitur being issued on June 15, 2023 (the “Second Exclusionary Period”) would be excluded under Wilshire Bundy, supra, 228 Cal.App.3d 1280, 1286, fn. 10. The Court has calculated such period to include 784 days.

            The Court will not exclude from the computation of time the period between October 1, 2015, and February 10, 2016, which are the dates the notice of appeal was filed as to the Court granting the MSJ as to Defendant Carfax and remittitur concerning such appeal being issued by the Second District Court of Appeal, respectively. Such appeal did not concern Defendant Washington, and the Court did not lose jurisdiction to try this action during such time. Moreover, Plaintiff has not presented any argument that bringing the action to trial during such period was impossible, impracticable, or futile. Such period only consists of 132 days based on the Court’s calculations.

            Putting all the calculations together, this action was commenced on June 17, 2013, and should have been brought to trial within five years of such date but for any circumstance set forth in CCP § 583.340 being present. Without any additional extensions of time, this action should have been brought to trial by June 17, 2018, which was a Sunday. Thus, this action should have been brought to trial by the next day, which was Monday, June 18, 2018.

            The First Exclusionary Period and Second Exclusionary Period collectively equal 2,080 days. Adding in the additional six months (180 days) under Emergency Rule 10(a), Plaintiff was afforded an additional 2,260 days to bring this action to trial.  Plaintiff, thus, had 2,260 days from June 18, 2018 to bring this action to trial, meaning that Plaintiff should have brought this action to trial by August 25, 2024. Because that date was a Sunday, this action should have been brought to trial by Monday, August 26, 2024. As noted by the record in this action, no trial has commenced in this action. Plaintiff has therefore failed to bring this action to trial in a timely manner under CCP § 583.310, and dismissal is therefore appropriate under CCP § 583.360.

            Moreover, Plaintiff has failed to present any argument to rebut Defendant Washington’s contention that Plaintiff’s illness should not provide him with more time to bring the action to trial. (See Memo of Ps and As at pp. 5-6.) Given that Plaintiff failed to oppose the instant motion, Plaintiff has not shown that bringing the action to trial was impossible, impracticable, or futile due to any illness. (Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 473 [a party seeking relief from the failure to bring an action to trial within the five-year period must show that it was “impossible, impracticable, or futile for the reason proffered.”].) 

            Accordingly, Defendant Washington Motors, LLC’s Motion to Dismiss Pursuant to CCP § 583.360 is GRANTED.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   February 14, 2025                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.