Judge: Theresa M. Traber, Case: BC545169, Date: 2024-12-13 Tentative Ruling
Case Number: BC545169 Hearing Date: December 13, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: December 13, 2024 TRIAL DATE: February
11, 2025
CASE: Cenigent
Health Enhancement Medical Institute v. Dan Mintz, et al.
CASE NO.: BC545169 
MOTION
TO DISMISS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 583.310
MOVING PARTY: Defendants Dan Mintz, Bing Wu, DMB Entertainment and
H2F Entertainment, Inc.
RESPONDING PARTY(S): Plaintiff
Cenigent Health Enhancement Medical Institute
CASE
HISTORY:
·
05/08/14: Complaint
filed.
·
05/06/16: First
Amended Complaint filed.
·
09/06/16: Second
Amended Complaint filed.
·
11/17/17: Case stayed
pending arbitration.
·
01/14/19: Arbitration
ordered terminated.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff allegedly provided medical
treatment and medical research services to Defendants. Defendants have not paid
outstanding invoices for such services totaling over $1.5 million.
Defendants
move to dismiss this action pursuant to Code of Civil Procedure section
583.310.
TENTATIVE RULING:
Defendants’ Motion to Dismiss is
DENIED.
//
DISCUSSION:
Defendants move to dismiss this
action pursuant to Code of Civil Procedure section 583.310.
Code of Civil Procedure section
583.310 requires any action to be brought to trial within five years of the
date of its commencement. (Code Civ. Proc. § 583.310.) This period runs from
the date of filing of the original complaint and is not affected by amendment.
(See Davalos v. County of Los Angeles (1983) 142 Cal.App.3d 57, 63.)
Dismissal of an action which is not brought within the five-year period is
mandatory, either on a party’s motion or sua sponte, unless the
Plaintiff can establish an extension, excuse, or exception expressly provided
by statute. (Code Civ. Proc. § 583.360.) Statutory extensions of time include written
stipulations (Code Civ. Proc. § 583.330(a)) and oral agreements before the
Court, if entered in the minutes or reflected in a transcript. (Id.
subd. (b).) The calculation is also tolled at any time where the Court’s
jurisdiction is suspended, prosecution or trial was stayed or enjoined, or if
bringing the action to trial was impossible, impracticable, or futile. (Code
Civ. Proc. § 583.340.)
Plaintiff’s original Complaint was
filed on May 8, 2014. (See Complaint.) Thus, by operation of Code of Civil
Procedure section 583.310, the original deadline to bring this action to trial
was May 8, 2019. During the pendency of the action, the case was stayed pending
arbitration from November 17, 2017 to January 14, 2019, a total of 423 days.
(See November 17, 2017 Minute Order; January 14, 2019 Minute Order.) The
parties agree that this stay extended the deadline to bring this action to July
4, 2020, a Saturday and holiday, which therefore would have required this
action to be brought to trial by July 6, 2020. (Code Civ. Proc. § 12a; Holland
v. Dave Altman’s R.V. Center (1990) 222 Cal.App.3d 477, 480.) The parties
then repeatedly stipulated over the next four years, the repeated warnings of
the Court notwithstanding, to further extensions of the deadline ahead of the
looming cutoff date. (See June 30, 2020 Minute Order [extending to September
26, 2021]; February 18, 2021 Minute Order [March 26, 2022]; January 20, 2022
Minute Order [October 1, 2022]; July 11, 2022 Minute Order [December 9, 2022];
November 15, 2022 Minute Order [June 30, 2023]; May 22, 2023 Minute Order
[August 21, 2023]; July 21, 2023 Minute Order [March 31, 2024]; December 12, 2023
Minute Order [August 31, 2024].) The most recent stipulated extension was the
December 12, 2023 order extending the deadline to August 31, 2024 by
stipulation of the parties, “without prejudice to defendants’ right to seek a
further continuance, if necessary.” (December 12, 2023 Minute Order.)
Defendants argue that because the
August 31, 2024 deadline has passed, this action must be dismissed pursuant to
Code of Civil Procedure section 583.310. Plaintiff, in opposition, first argues
that Defendants have waived their right to dismiss this action by stipulating
to extensions of the five-year deadline, citing Smith v. Bear Valley Milling
& Lumber Co. (1945) 26 Cal.2d 590, at 599. This case does not stand for
the proposition offered by Plaintiff that a stipulation outright waives the
right of dismissal. Rather, Smith holds that “[a] stipulation to extend
the trial beyond the five-year period necessarily waives the right to a
dismissal of the action […] which would otherwise accrue because of such
delay.” (Smith v. Bear Valley Milling & Lumber Co. (1945) 26
Cal.2d 590, 599 [emphasis added].) Put differently, Smith stands for the
axiomatic principle that a party cannot stipulate to an extension of the
five-year rule and then move to dismiss before the extension has run.
More forcefully, however, Plaintiff
argues that this action was stayed in its entirety with respect to all parties
commencing on February 20, 2024 due to a bankruptcy proceeding commenced by
Defendant Bing Wu. (February 20, 2024 Notice of Stay.) That stay was lifted on
September 9, 2024, based on evidence that the bankruptcy proceeding was
dismissed. (September 9, 2024 Minute Order.) Thus, by operation of Code of
Civil Procedure section 583.340(b), the deadline to bring this action to trial
was extended a further 202 days, to Friday, March 21, 2025. Defendants,
anticipating this argument, contend that bankruptcy stays only toll the
five-year period as to the bankrupt. Indeed, that is the general rule. (See, e.g.,
Santa Monica Hospital Center v. Superior Court (1988) 203 Cal.App.3d
1026, 1036.) Moreover, our Supreme Court has expressly stated that Code of
Civil Procedure section 583.340(b) only applies when a stay encompasses all proceedings
and does not include partial stays. (Bruns v. E-Commerce Exchange Inc. (2011)
51 Cal.4th 717, 723.) Here, that is exactly what transpired: the action was
stayed in its entirety as to all parties, not merely to Defendant Wu.
Therefore, Code of Civil Procedure section 583.340 subdivision (b) tolled the deadline
to bring the action during the pendency of that stay. Although Defendants argue
that Plaintiff was not diligent in bringing this action to trial, that
contention is immaterial, as diligence is only relevant when an extension is
asserted under subdivision (c) on the grounds that other circumstances rendered
it “impossible, impracticable, or futile” to bring the case to trial. (Bruns,
supra, 51 Cal.4th at 730-31.) In this case, the action was stayed as to all
parties for 202 days, and, therefore, section 583.330(b) requires that the
deadline to prosecute this action be extended as to all parties by 202 days,
placing the cutoff on Friday, March 21, 2025.
As the proper statutory deadline is
the future date of March 21, 2025, and trial is set to commence on February 11,
2025, Defendants are not entitled to dismissal of this action pursuant to Code
of Civil Procedure section 583.310.
CONCLUSION:
Accordingly, Defendants’ Motion to
Dismiss is DENIED.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: December 13,
2024 ___________________________________
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.