A. Todd Hindin v. State Farm Mutual Automobile Ins.
Co.
Filed 1/21/14 A. Todd Hindin
v. State Farm Mutual Automobile Ins. Co. CA2/7
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
A. TODD HINDIN
et al.,
Plaintiffs and Appellants,
v.
STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant and Respondent.
B241540
(Los
Angeles County
Super. Ct. No.
BC190783)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Carl J. West and Kenneth R. Freeman, Judges. Affirmed.
Hillel
Chodos for Plaintiffs and Appellants.
Robie
& Matthai, Edith R. Matthai, Natalie A. Kouyoumdjian, Christy Gargalis;
O’Melveny & Myers, Jeffrey J. Fowler; LHB Pacific Law Partners and Clarke
B. Holland for Defendant and Respondent.
On May 11, 1998 A. Todd Hindin, Hindin’s
Greenberg, Greenberg’s professional corporations and Joginder Shah (collectively
the Hindin parties) sued State Farm Mutual Automobile Insurance Company (State
Farm), several State Farm senior executives and its in-house and outside
favor of State Farm and remanded the matter for further proceedings. (Hindin
v. Rust (2004) 118 Cal.App.4th 1247.)
April 11, 2012, the trial court granted State Farm’s motion to dismiss for
delay in prosecution pursuant to Code of Civil Procedure section 583.320, subdivision (a)(3),
three-year period for bringing a case to trial following an order on appeal
granting a new trial. The Hindin parties
contend they have diligently prosecuted the action and three years had not yet
elapsed when the court dismissed the case
against State Farm if one excludes the time during which the action was stayed or
it was “impossible, impracticable, or futile†to bring it to trial, as provided
in section 583.340, subdivisions (b) and (c).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. A Brief
Overview of the Initial Phases of this Protracted Litigation
In 1993, after several
years of litigation and in the fourth
month of a jury trial, State Farm paid $30 million to the Hindin parties’
clients—its former insureds—to settle their claims of bad faith and religious
and national origin discrimination in State Farm’s handling of their uninsured
motorist claims. (The four individual
plaintiffs had received a $34,000 uninsured motorist arbitration award based on
a February 1987 automobile-versus-automobile accident, the full amount of
available coverage; State Farm petitioned the superior court to vacate the
award but voluntarily dismissed the petition with prejudice before it was heard.) State Farm subsequently obtained information
indicating the underlying insurance claims were, at least in part,
fraudulent. After an investigation by an
outside law firm and investigators it had retained, on February 14, 1996 State
Farm filed a federal court fraud action against its former insureds and their
attorneys, the Hindin parties, seeking both restitution of the $30 million
payment and return of internal documents it had produced during the bad
faith/discrimination litigation, as well as related equitable relief to prevent
further dissemination of those documents, based on the Hindin parties’ alleged
violation of one of the settlement agreements signed in connection with
resolution of the bad faith case.
In response to a
motion to dismiss State Farm’s federal action, counsel for State Farm
acknowledged the Los Angeles Superior Court had previously determined the
Hindin parties were not precluded by the settlement agreements from copying or
disseminating to third persons any of the documents obtained from State Farm in
the bad faith/discrimination litigation (the “Drake orderâ€). State Farm amended its federal complaint to
eliminate the document claim on April 1, 1996, 45 days after it
had initially been filed. Several months
later the federal district court dismissed the balance of State Farm’s federal
lawsuit on the ground the alleged misconduct of the Hindin parties and their
clients was protected by Civil Code section 47, subdivision (b)’s litigation
privilege; the Ninth Circuit affirmed the dismissal in November 1997.
The Hindin
parties sued State Farm for malicious prosecution in May 1998, alleging, in
brief, State Farm knew the settlement agreements did not prohibit dissemination
of the documents produced in the bad faith/discrimination litigation and also
knew any purportedly fraudulent misrepresentations in connection with the uninsured
motorist claims were absolutely privileged under Civil Code section 47,
subdivision (b). In addition to State
Farm the Hindin parties named as defendants State Farm’s outside attorneys
(sometimes referred to in our prior opinions as the Wehner defendants), State
Farm’s chairman and chief executive officer, Edward Rust, and two other senior
officers (the Rust defendants) and its general counsel and assistant general
counsel (the Montgomery defendants).
The trial court
granted State Farm and the other defendants’ motion for summary judgment in August
1999, finding there was probable cause to file the underlying federal lawsuit. We reversed in a nonpublished decision in
February 2001, finding “State Farm’s federal court claim for equitable
restitution to recover the disputed documents was not objectively tenable.†(Hindin
v. Rust, supra, B135446.)
documents, there is a triable issue of material fact, to wit: was the State Farm federal action to recover
the disputed documents initiated with malice.â€
(Ibid.) We expressly declined to rule whether State
Farm had probable cause to assert claims other than for return of the disputed
documents: “Those issues are open for
determination upon remand.†(
On remand State
Farm moved for summary adjudication of the restitution claim (that is, its
effort to recover the $30 million settlement payment to the Hindin parties’
clients, including the $18 million portion of that payment received by the
Hindin parties in contingent legal fees) on the ground there had been probable
cause to pursue that claim. The motion
was granted. The Hindin parties sought
writ relief in this court, contending the trial court had improperly relied on
the law-of-the-case doctrine to find probable cause. State Farm’s opposition argued the Hindin
parties had mischaracterized the basis for the trial court’s order, which it
asserted was based on the court’s finding there was an objectively tenable
basis for seeking to rescind the settlement agreement and to impose a
constructive trust on the funds the Hindin parties’ clients had paid their
attorneys. While the writ petition was
pending, the trial court granted summary judgment on the remaining portion of the
malicious prosecution action against State Farm (that is, the document claim)
on the ground it was time-barred.
Because the entire action had now been concluded as to State Farm, we
dismissed the writ petition without opinion; the trial court entered judgment
in favor of State Farm; and the Hindin parties appealed.
In
1247 we held the trial court erred in granting summary adjudication on the
restitution claim because the determination State Farm had probable cause to
bring one of its two claims in federal court did not completely dispose of the
Hindin parties’ entire malicious prosecution cause of action: “[A] motion for summary adjudication
purporting to establish that some but not all of the multiple grounds for
liability asserted in the prior action were brought with probable cause is
improper for failure to completely dispose of an entire cause of action as
required under subdivision (f)(1) of section 437c.†(Id.
at p. 1259.)
title="">[4] Because summary adjudication on the
restitution claim was improperly granted, the entire judgment in favor of State
Farm was reversed. The remittitur was
filed in the superior court on September 24, 2004.
2. Proceedings
Following Our 2004 Remand
On remand,
following a suggestion at the conclusion of our opinion, State Farm moved for
an in limine order determining there was probable cause to bring the
restitution claim in the federal action, striking portions of the Hindin
parties’ amended complaint and excluding certain evidence from trial. The trial court granted the motion on December 15, 2004. The Hindin parties
petitioned this court for a peremptory writ of mandate on January 4, 2005. We issued a peremptory writ
on November 1,
2006, directing the superior court to
vacate its order and to reconsider the motion without application of the law-of-the-case
doctrine. The remittitur was filed in
the superior court on January 23, 2007.
On July 27, 2007 the trial court once again granted State Farm’s motion in limine and
struck portions of the Hindin parties’ amended complaint based on the
restitution claim in the underlying action.
The court explained (1) there was probable cause to seek recovery of the
settlement funds paid to the Hindin parties’ clients (State Farm’s former
insureds), as previously determined by the trial court and affirmed by this
court in 2001; (2) State Farm had not alleged claims for fraud against the
Hindin parties themselves, as opposed to their clients; (3) case law supported
a constructive trust theory of recovery of the contingent fee paid to the Hindin
parties from a settlement allegedly obtained by their clients’ fraud. The Hindin parties’ petition for writ of
mandate challenging that order, filed on September 4, 2007, was denied by this court on April 7, 2009.
The case
proceeded in the trial court: As to
State Farm, the only remaining issues at this point were malice and damages
relating to the document claim. Over the
next 16 months the trial court granted summary judgment motions and entered
judgment in favor of the Wehner defendants (in May 2009),
defendants (in August 2010). The Hindin
parties filed timely notices of appeal from each of the judgments resolving
those claims, and those appeals remained pending until August 28, 2012.
title="">[6]
In November
2010, as part of a joint case management report ordered on September 28, 2010, State Farm proposed a July 11, 2011
trial date,
title="">[7] as well as a pretrial
schedule including dates for expert discovery.
As discussed, at this point only the issues of malice and damages on the
document claim remained to be tried against State Farm. The Hindin parties, on the other hand,
requested trial of their claim be deferred until the pending appeals from the
individual summary judgments were resolved; they also sought leave to conduct
additional non-expert discovery, citing the interruption of scheduled discovery
caused by the court’s initial grant of summary judgment in mid-1999 and the
consequent stay of all remaining discovery.
At a hearing on November 5, 2010 the court indicated it was not inclined
to postpone the trial against State Farm, but deferred issuing a final
scheduling order or setting a trial date at that time. The court scheduled a further status
conference for January 11, 2011, a date that was thereafter continued to
January 27, 2011 and ultimately to April 4, 2011.
In a further
joint case management report filed on March 30, 2011 for the April 4, 2011
status conference, the Hindin parties again urged the court to stay the trial
until the pending appeals from the individual summary judgment motions were
resolved and repeated their need for additional discovery. The Hindin parties estimated a one-year jury
trial for the remaining issues against State Farm (malice and damages); State
Farm, a one-week trial. At the April 4, 2011 conference the court allowed the Hindin parties to conduct
additional discovery, but limited to “the viability of the document claim and
damages that may be assessed on that claimâ€â€”that is, those matters that
remained at issue in light of the various rulings by the court of appeal and
the trial court. The court set a
discovery cutoff of August 1, 2011 and scheduled
trial for December
5, 2011.
A petition to this court for a writ of mandate staying trial court
proceedings against State Farm until we had resolved the appeals involving the
individual defendants was summarily denied.
(Hindin v. Superior Court (May 19, 2011, B232912).) On August 5, 2011 the trial court postponed the trial date from December 5, 2011 to March 13, 2012 based on
Hindin’s medical condition (a broken leg).
3. Discovery
Proceedings and the Stay of Discovery
The original
discovery schedule contemplated discovery under the supervision of a discovery
referee from July 1998 through December 1999.
All discovery was stayed on August 25, 1999
when the trial court granted State Farm’s motion for summary judgment. Prior to that suspension of discovery,
however, the Hindin parties had deposed 45 individuals over 65 sessions; State
Farm and the individual defendants had deposed 14 individuals over 29
sessions. In July 2007 the Hindin
parties requested leave to conduct additional discovery. The court denied the request, explaining,
“Plaintiffs’ proposed discovery would impermissibly expand the issues in this
case, and the evidence sought is not ‘essential to the issues to be
adjudicated.†The court also expressed
the view that the Hindin parties had had ample opportunity to conduct discovery
notwithstanding the discovery stay.
As discussed,
following repeated requests by the Hindin parties to restart discovery, in
April 2011 the trial court agreed to allow additional discovery limited to the
viability of the document claim (that is, whether State Farm initiated or
continued that claim with malice) and any damages that may have resulted from
the prosecution of that claim and directed the parties to identify the
individuals they intended to depose. In the
subsequent joint filing the Hindin parties proposed deposing 64 additional
witnesses. In response, the court ruled
no justification had been offered for the discovery proposed and described the
request as “a potentially abusive use of the discovery process in a case that
has been pending for over thirteen years, and in which extensive discovery has
been completed.†The court ordered a
maximum of 10 additional depositions, extended the discovery cutoff from August
1 to August 19, 2011 and cautioned the Hindin parties “[t]he fact that
Plaintiffs have deferred noticing any deposition and/or propounding any written
discovery directed to the remaining claims will not provide justification for
extending the discovery cutoff date.â€
The Hindin
parties did not take any additional depositions prior to the dismissal of their
case against State Farm.
4. Hindin’s
Medical Problems
Hindin, one of
the plaintiffs and also cocounsel for all the Hindin parties with significant
responsibilities for discovery and trial preparation, was diagnosed with a
serious heart condition on August 31, 2009. Hindin was instructed by his cardiologist to
avoid stress and to drastically reduce his workload from that date through December 31, 2009 when he was authorized to fully return to work. The trial court granted a 90-day postponement
of all deadlines due to Hindin’s heart condition. A further 60-day postponement of deadlines
was granted (over State Farm’s objection) in mid-November 2009.
On July 22, 2011 Hindin broke his leg while on a family vacation. Its repair required surgery. That injury also exacerbated a preexisting
spinal injury. Hindin has asserted, as a
result of these conditions and the pain medication he was required to take, he
was totally disabled from July 22, 2011 through December 31, 2011. Based on Hindin’s medical
condition, the court granted one 90-day continuance of pretrial deadlines and
the trial date (which was postponed from December 5, 2011 to March 13,
2012), but denied a subsequent request to continue the trial.
5. The
Death of State Farm’s Lead Counsel
James Robie,
State Farm’s lead counsel, died in a diving accident on January 16, 2011. The following day State
Farm requested a 30-day continuance of the status conference then set for January 27, 2011, as well as a similar postponement of other pretrial deadlines. On February 9, 2011 the court continued the status conference to April 4, 2011. As described by the court
in its order granting the motion to dismiss, “After some back-and-forth on the
message board about continuing the status conference to March 2, 2011 (a date
which State Farm found to be ‘acceptable’), the Court, due to scheduling
conflicts from Messrs. Hindin and Chodos, continued the status conference to
April 4, 2011. However, the Court
did not enter a stay of the litigation for all purposes after hearing of Mr.
Robie’s passing.â€
6. The
Motion To Dismiss
The trial court
began hearing motions in limine on March 13, 2012,
the date set for commencement of trial. On
March 16, 2012 State Farm filed its written motion to dismiss the action for delay
in prosecution—the motion at issue in this appeal. The motion was argued after the court
received and reviewed the Hindin parties’ opposition papers, which included a
106-page declaration from Hindin and 11 volumes of exhibits, and State Farm’s
reply. The court granted the motion and
dismissed the action, ruling the Hindin parties had failed to bring the action
to trial within the three-year deadline specified in section 583.320,
subdivision (a)(3), following remand from our 2004 decision reversing the
judgment in favor of State Farm.
In reaching its
conclusion the trial court excluded from its calculation of the three-year
period, pursuant to the tolling provisions of section 583.340, (1) 769 days
between the trial court’s December 15, 2004 order granting State Farm’s motion
in limine striking evidence in support of the restitution claim and the January
22, 2007 filing of the remittitur from this court directing the trial court to
vacate its order and to reconsider the motion without application of the law-of-the-case
doctrine; and (2) 620 days between the July 27, 2007 order again
granting State Farm’s motion in limine precluding use of evidence in support of
the restitution claim and our April 6, 2009 order denying the Hindin
parties’ writ petition challenging that order.
The court declined to exclude the periods during which Hindin’s heart
condition and broken leg and reinjured spine prevented him from working on the
case, August 31, 2009 to December 31, 2009 and July 22, 2011 to
December 31, 2011 (noting as to this latter period it was after the three-year
statutory deadline had already expired), or the two-and-one-half month period
following the death of James Robie, from January 17, 2011 to April 4,
2011. The court also ruled it was not
impossible, impracticable or futile to bring the case to trial during the
pendency of the appeals by the Hindin parties from the judgments entered on
behalf of the individual defendants or while the discovery stay remained in
effect (that is, through April 4, 2011).
days—three years—of active litigation (from September 24, 2004 to December 15, 2004, January 23, 2007 to July 27, 2007, and April 7, 2009 to July 13, 2011) before State
Farm filed its March 2012 motion to dismiss.
The Hindin
parties filed a timely notice of appeal.
DISCUSSION
1. Sections
583.320 and 583.340 and the Standard
of Review
Section 583.320,
subdivision (a), provides, “If a new trial is granted in the action the action
shall again be brought to trial within the following times: [¶] . . . [¶] (3) If on appeal an order granting
a new trial is affirmed or a judgment is reversed and the action remanded for a
new trial, within three years after the remittitur is filed by the clerk of the
trial court.†Section 583.340 provides,
“In computing the time within which an action must be brought to trial pursuant
to this article [including section 583.320], 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.â€
A ruling in
favor of the defendant on a motion for summary judgment followed by entry of
judgment, as occurred in Hindin v. Rust,
supra, 118 Cal.App.4th 1247, is a “trial†for purpose of section 583.320’s time rules. (See, e.g., McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d
527, 531-533 [addressing former § 583, the predecessor to § 583.320; three-year
provision applies to judgment of dismissal entered after reversal on appeal of
an order sustaining a demurrer without leave to amend]; cf.
856, 859.) Accordingly, as the trial
court found and both sides agree, the three-year period for the Hindin parties’
to bring their case to trial against State Farm began to run on September 24, 2004 upon the filing of the remittitur following our reversal of the
2002 summary judgment in favor of State Farm.
Dismissal is
mandatory if the requirements of section 583.320 are not met and an exception
provided by statute does not apply. (§
583.360, subd. (b); see McDonough Power Equipment
Co. v. Superior Court, supra, 8 Cal.3d at p. 530.)
discretion the trial court’s determination not to exclude periods during which
plaintiffs contend it was impossible, impracticable or futile to bring the
action to trial within the meaning of section 583.340, subdivision
(c). (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731
[“[t]he trial court has discretion to determine whether that exception applies,
and its decision will be upheld unless the plaintiff has proved that the trial
court abused its discretionâ€].) “Under
583.340(c), the trial court must determine what is impossible, impracticable,
or futile ‘in light of all the circumstances in the individual case, including
the acts and conduct of the parties and the nature of the proceedings
themselves. [Citations.] 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.’ [Citations.]
A plaintiff’s reasonable diligence alone does not preclude involuntary
dismissal; it is simply one factor for assessing the existing exceptions of
impossibility, impracticability, or futility. . . . Determining whether the subdivision (c)
exception applies requires a fact-sensitive inquiry and depends ‘on the
obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s
exercise of reasonable diligence in overcoming those obstacles.’ [Citation.]
‘“[I]mpracticability and futility†involve a determination of “‘
circumstances of a particular case.’†(
(1995) 10 Cal.4th 424, 438.)
The plaintiff
bears the burden of proving the circumstances justify application of section 583.340,
subdivision (c)’s exception for impossibility, impracticability or
futility. (Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th at p. 731.) That showing includes establishing a causal
connection between circumstances of impracticability and the plaintiff’s
failure to move the case to trial. (
Inc. (2007) 155 Cal.App.4th 365, 372; Tamburina v. Combined Ins. Co. of
2. The
Appeals of the Judgments in Favor of the Individual Defendants Did Not Make It
Impracticable or Futile To Bring the Case to Trial Within the Statutory Period
The Hindin parties
asked the trial court on three occasions to postpone the State Farm trial until
this court resolved their appeals from the judgments entered in favor of the
three groups of individual defendants.
did we in summarily denying the Hindin parties’ petition for writ of mandate in
May 2011. (Hindin v. Superior Court, supra, B232912.) Having directed the Hindin parties to proceed
to trial against State Farm, it was not an abuse of discretion for the trial
court to include within its calculation of the three-year mandatory period the
time during which those appeals were pending.
Unquestionably,
it is more efficient and less expensive to try a malicious prosecution action
against a corporate entity, its senior executives and its in-house and outside
counsel all at the same time, rather than to proceed first against the
corporate entity and then separately against the individual defendants. But at the time the Hindin parties’ stay
requests were denied and they were directed to proceed to trial, all that
remained in the trial court was the action against State Farm itself; and, as
discussed, as to State Farm, the only remaining issue was the element of malice
relating to the document claim. Trial of
this limited issue would not have been excessively or unreasonably difficult or
expensive. (Cf. Brunzell Construction Co. v. Wagner (1970) 2 Cal.3d 545, 554
[“‘impracticability and futility’ involve a determination of ‘“
circumstances of the particular caseâ€].)
And neither affirmance nor reversal of the pending appeals would have affected
the need to proceed to trial against State Farm unlike the situation in
Superior Court (1990) 223 Cal.App.3d 1145, 1152, relied upon by the Hindin
parties, in which the decision on a pending writ “could have disposed of the
entire action, making a trial in the case unnecessary.†Accordingly, there was nothing impracticable
or futile about completing the case, and the trial court properly concluded the
Hindin parties’ failure to do so did not demonstrate “reasonable diligence.†(See Sanchez
v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270 [plaintiff has a
duty to exercise reasonable diligence to ensure a case is brought to trial
within the statutory period]; Moss v.
Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502
[“reasonable diligence is a condition precedent to invoke the exception of
impossibility, impracticability, or futilityâ€]; see also Gaines v. Fidelity National Title Ins. Co., supra, 222 Cal.App.4th
at p. ___ [“[r]easonable diligence is required at all stages of the
proceedingsâ€].)
Kaye v.
Hindin parties’ opening brief, does not compel a different result. In Kaye
the court held it was impracticable within the meaning of section 583.340 for
plaintiffs to bring their action to trial during the pendency of writ proceedings
challenging the trial court’s decision granting a summary adjudication motion
eliminating their claims for punitive damages.
(Id. at pp. 1485-1486.) But as with any evaluation of
impracticability, the court’s decision must be understood “‘in light of all the
circumstances in the individual case.’â€
(Bruns v. E-Commerce Exchange,
Inc., supra, 51 Cal.4th at p. 730.)
In
the motion was made on October 24, 1986; trial was
set for November
6, 1986, several weeks before the five-year
anniversary of the filing of the complaint.
(Kaye v. Mount La Jolla Homeowners
Assn., supra, 204 Cal.App.3d at p. 1481.) On November 6 plaintiffs told the trial court
they had elected not to go to trial but instead to seek a stay and
extraordinary writ review of the summary adjudication order. The writ petition was filed the same
day. (Id. at p. 1482.) No
stay issued. (Ibid.) On Friday, November 21, 1986—a mere 15 days after the petition had been filed—the court of
appeal issued a peremptory writ of mandate with a written opinion reversing the
order. The opinion further provided it
would be “‘final immediately, because the trial date must be set by [Monday,] November 24, 1986, to avoid the running of the five-year statute.’†On Tuesday, November 25, 1986 plaintiffs moved to specially set the case for trial, arguing the
five-year statute had been tolled on a variety of theories. Defendants objected, and the trial court
dismissed the action. (
In reversing the dismissal and finding it was impracticable to proceed
to trial during the 15-day period the writ petition was pending, the appellate
court explained not only would a separate trial of the punitive damage issue
have been unnecessarily duplicative and wasteful because it would require
presentation of evidence already introduced in an earlier trial devoted to
compensatory damages but also the court’s issuance of a peremptory writ had
necessarily determined plaintiffs’ remedy by way of an appeal after trial of
the remaining issues was inadequate. (
Here, the Hindin
parties seek to exclude 1,078 days—just shy of three full years—between the
filing of their initial notice of appeal of the decision granting summary
judgment to the Wehner defendants and the date the judgment of dismissal was
entered—a radically different procedural context. Moreover, the unnecessarily duplicative
evidentiary presentation described in Kaye
if plaintiffs had proceeded to trial first on their compensatory damage claims
and then on their punitive damage claims was far greater than the similarities
between the limited issue remaining for trial against State Farm (malice as to
the document claim) and the wide variety of matters to be resolved on the
appeals. Whether there was sufficient
evidence to defeat summary judgment on the ground the Rust or Montgomery
defendants had not authorized, directed or participated in the initiation or
prosecution of the federal action could have no bearing whatsoever on a trial
of the remaining claim against State Farm.
State Farm was the plaintiff in the federal lawsuit; whether it had
initiated that lawsuit was not open to debate.
Also irrelevant to any trial against State Farm was the question whether
some or all of the individual defendants lacked probable cause to pursue the
document claim; as to State Farm, that question had been answered in our 2001
decision in favor of the Hindin parties.
Similarly, whether the Wehner defendants, State Farm’s outside counsel,
were entitled to summary judgment based on lack of malice as to the document
claim was, at most, only marginally related to the issue of State Farm’s malice
vel non because the Wehner defendants’ argument was predicated on their claimed
lack of knowledge of the Drake order interpreting the settlement
agreement. Again, we had resolved the
question of knowledge of the Drake order as to State Farm in 2001.
Only the issue
of probable cause to pursue the restitution/constructive trust claim, which had
been eliminated from the case against State Farm by motion in limine, directly
overlapped with issues in the pending appeals.
But contrary to the Hindin parties’ overly optimistic predictions, we
affirmed the trial court’s rulings precluding the Hindin parties from pursuing
that aspect of their malicious prosecution claim against the individual
defendants, completely forestalling any duplicative trial presentations. Even if we had not, whether a defendant had
probable cause for instituting the prior action “has traditionally been viewed
as a question of law to be determined by the court.†(Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875.) Any evidentiary presentations to resolve
disputed facts necessary to make the objective probable cause determination
(see id. at p. 877) would not have been
unreasonably extensive or expensive.
In sum, the
trial court did not abuse its discretion in concluding the pending appeals of
the judgments in favor of the individual defendants did not make it
impracticable to bring the case to trial. (See generally Brunzell Construction Co. v. Wagner, supra, 2 Cal.3d at p. 554
[“[w]e in no way imply, of course, that whenever causes may be consolidated, it
is ‘impracticable’ to proceed except against all permissibly joined partiesâ€].)
3. The
Discovery Stay Did Not Make It Impracticable or Futile To Bring the Case to
Trial Within the Statutory Period
As discussed, discovery
was stayed in August 1999 when the trial court first granted State Farm’s
motion for summary judgment. By that
time the parties had conducted an extensive amount of written and deposition
discovery under the supervision of a discovery referee although even more had
been scheduled through December 1999. Specifically
as it related to the document claim remaining as to State Farm, the Hindin
parties had deposed the State Farm executives and lawyers involved in the
underlying settlement, those who had knowledge of the Drake order and the
individuals who participated in the decision to include the document claim in
the federal action.
In July 2007, at
the time it granted both State Farm’s motion in limine to preclude evidence
relating to the restitution/constructive trust claim and the Wehner defendants’
motion for summary judgment, the trial court rejected the Hindin parties’
request for additional discovery both because they had failed to demonstrate a
reasonable basis for their demands and because the court believed they had had
ample opportunity for discovery prior to the August 1999 stay. The court explained, “To say substantial
discovery was conducted by the parties prior to the transfer of the case to
this Court would be an understatement.
[¶] . . . [¶] In this Court’s view, Plaintiffs’ application
seeks wide-reaching and boilerplate discovery tantamount to a fishing expedition. The requests are not focused, and it would
perpetuate an injustice on the Defendants to allow the discovery, as proposed
to go forward—especially in light of the substantial and comprehensive
discovery Plaintiffs have already taken in this litigation. . . .
[¶] . . . [¶] . . . Plaintiffs’ proposed discovery
would impermissibly expand the issues in this case, and the evidence sought is
not ‘essential’ to the issues to be adjudicated. Such dramatic expansion of the case at this
stage is a tactic which this Court will not sanction.â€
After denying
several additional requests to reopen discovery, in April 2011, with only the
document claim against State Farm remaining in the litigation, the court lifted
the discovery stay in part. The court authorized
the Hindin parties to take a maximum of 10 additional depositions, rather than
the 64 they had identified, limited to the viability of the remaining document
claim. Notwithstanding a 90-day
extension of the new discovery cutoff date in August 2011, however, the Hindin
parties did not take a single deposition between April 2011 and the March 2012
trial date.
The Hindin
parties’ failure to pursue additional discovery once it was authorized by the
trial court belies their claim it was impracticable for them to proceed to
trial against State Farm based on the information they had already obtained. Indeed, as reflected in our 2001 decision (
the 1999 summary judgment motion and imposition of the discovery stay, the
Hindin parties had evidence that established not only that the document claim lacked
probable cause (that is, it was not objectively tenable) but also that there were
triable issues of fact as to whether the claim had been initiated with
malice. Although the Hindin parties may
have been entitled to limited additional discovery, as the trial court
eventually ruled,
name="_ftnref12" title="">[12] and even though this further
discovery might have been helpful in preparing for trial had it been taken, we
cannot conclude the trial court abused its discretion— that there was no
reasonable basis for its ruling or its decision exceeded the bounds of reason (
109 Cal.App.4th at p. 1271)—in declining to exclude the period of the discovery
stay from its calculation of the statutory three-year period to bring the case
to trial.
4. Hindin’s
Health Problems Did Not Make It Impracticable To Bring the Case to Trial Within
the Statutory Period
Serious medical
issues experienced by plaintiff or plaintiff’s counsel may create a
circumstance of impracticability that is causally connected to the failure to
bring a case to trial within the statutory deadline within the meaning of
section 583.340, subdivision (c).
(See Tamburina, supra, 147
Cal.App.4th at pp. 331-335; Him v. Superior
Court (1986) 184 Cal.App.3d 35, 37, 39.) Moreover, an unusually lengthy illness that
deprives the plaintiff and his or her counsel of a substantial portion of the
statutory period for trial preparation and other activities required to move
the case to trial may establish impracticability even if the medical condition
has resolved itself prior to the expiration of the statutory deadline. (Tamburina,
at pp. 333-334; see Sierra Nevada
Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464,
473.)
However, not all
illnesses of client or counsel qualify for the impracticability exception. As the court explained in
v. Superior Court, supra, 217 Cal.App.3d 464, in the closely related context
of applying the section 583.340, subdivision (c) impracticability
exception to section 583.310, the five-year statute, “In the course of five
years it is reasonable to expect that counsel will suffer a number of days when
illness will prevent his attendance to his practice. Similarly, it is reasonable to expect that
counsel will have to attend to other business, personal and professional,
including, for example, days off and vacations.
The five-year period contains an allowance for the time so consumed in
the same manner as it allows for the usual and ordinary proceedings attendant
to moving the case to trial. It would
render the statute utterly indeterminate, subjective, and unadministerable, and
thus absurd, to read an open-ended sick leave program for counsel into the
tolling provisions of section 583.340, subdivision (c). [¶] The text of section 583.340 impels the view
that there must be a causal connection between the circumstance upon which
plaintiff relies and the failure to satisfy the five-year requirement. Bringing the action to trial must be
impossible, impracticable, or futile for the reason proffered.†(Sierra Nevada, at pp. 472-473, fn. omitted.)
Hindin was
instructed by his cardiologist to avoid stress and to substantially reduce his
work load due to his heart condition from August 31 through December 31, 2009 (122 days according to the Hindin parties’ calculation). Surgery for his broken leg and related
problems again disabled him between July 22, 2011 and
December 31,
2011 (162 days per the Hindin parties). Combining these two medical events, the
second of which did not occur until after the three years had already expired
as calculated by the trial court, the Hindin parties contend, like the
plaintiff in Tamburina, they were
deprived of their counsel for a substantial portion of the three-year period.
Hindin’s heart
condition certainly may have prevented him from appearing at trial. But he had fully recovered more than a year
before any trial date was even set and more than 18 months prior to the
expiration of the statutory deadline.
The issue was whether Hindin’s infirmity made it impossible or
impracticable for the Hindin parties to prepare for trial, not his readiness to
act as trial counsel. As the trial court
emphasized, Hindin was not sole counsel for the Hindin parties. It was not unreasonable for the court to find
other counsel could have continued to prepare the case for trial even if Hindin
was lead or primary counsel because of his involvement in the underlying
litigation and greater familiarity with evidence that had been gathered. Moreover, based on the parties’ submissions,
including information that Hindin was actively working on other litigation
matters during this four-month period, the court reasonably concluded Hindin himself
could have participated with cocounsel in necessary pretrial activities—that
is, in bringing the action to trial.
Indeed, during this period in late 2009 there was no discovery (because
of the stay discussed in the preceding section), and the parties’ efforts
appear to have been concentrated on preparing and responding to summary
judgment motions filed by certain of the individual defendants, activity that is
generally far less stressful than trial itself or other contentious aspects of
litigation.
name="_ftnref13" title="">[13] Accordingly, the trial court
did not abuse its discretion in declining to exclude this period from its
calculation of the statutory three-year period to bring the case to trial.
Hindin’s July 22, 2011 broken leg and ensuing surgery and spiral reinjury in the second
half of 2011, with the trial then set for December 5, 2011,
much more clearly interfered with the Hindin parties’ ability to bring their
case to trial. During that period
additional discovery had been authorized by the court; and, although the
litigation was not stayed for all purposes, on August 5, 2011 the court continued the previously scheduled trial date to March 13, 2012 and postponed various pretrial deadlines for 90 days because
of Hindin’s condition. Yet, as the trial
court recognized, this period of disability only occurred after more than three
years of active litigation had elapsed and the action was properly subject to
dismissal under section 583.320.
Therefore, there can be no causal connection between Hindin’s broken leg
and subsequent medical complications and the Hindin parties’ failure to bring
the case to trial within the statutory period. (See DeSantiago
v. D & G Plumbing, Inc., supra, 155 Cal.App.4th 365.) Although the Hindin parties assert it was
somehow unfair for the court to continue the trial date from December to the
following March without State Farm mentioning the three-year statute, they have
cited no authority suggesting either that a period of “impracticability†after
the mandatory deadline has passed extends the time to bring a case to trial or
that the failure to move to dismiss under section 583.320 at the earliest
possible opportunity forfeits the right to have an untimely action dismissed.
5.
Death of One of Its Lawyers Did Not Make It Impracticable for the Hindin
Parties To Bring the Case to Trial
In
the court reversed a trial court’s order dismissing an action for failure to
bring it to trial within five years based, in part, on “the general rule†that
“when a party seeks a continuance of trial, that party is estopped to assert
limitations periods for bringing an action to trial.†(Id.
at p. 541.) Relying on this language the
Hindin parties contend the period of delay caused by State Farm’s request to
continue the January
17, 2011 status conference after the death
of James Robie should be excluded from the three-year statutory period.
The court in
537, however, considered two different periods of delay requested by
defendants: a three-month continuance of
the trial setting conference to permit a related administrative proceeding to
conclude and an 84-day continuance of the trial date itself to permit the court
to hear defendants’ motion for summary judgment. (Id.
at pp. 540-541.)
name="_ftnref15" title="">[15] As to the first period,
continuance of the trial setting conference, the Court of Appeal expressly
stated a stay of proceedings had been imposed by the trial court, “and the time
of the stay is excluded in computing the five-year limitations period,†citing
section 583.340, subdivision (b), not subdivision (c)’s tolling provision
for impossibility, impracticability or futility. (Rose,
at p. 541.) The court’s statement
of “the general rule†of estoppel and its application to the case before it was
limited to defendants’ request to continue the trial date itself. (Ibid.;
see Ward v. Levin (1984) 161 Cal.App.3d
1026, 1034 [“defendants’ conduct in requesting continuance of the trial
estopped defendants from seeking dismissal under the five-year provision of
section 583â€].)
Here, State Farm
never requested a continuance of a trial date.
Indeed, it did not even request a continuance of a “trial setting
conference†notwithstanding the Hindin parties’ repeated misuse of that label
for the April
4, 2011 status conference.
continuance of but one of many such status conferences at the request of a
defendant—particularly when, as here, the delay was prolonged by the court’s
accommodation of plaintiffs’ counsel’s calendar conflicts—is not, standing
alone, a proper basis for application of the doctrine of equitable
estoppel. (See Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1341 [as applied to
motion to dismiss for failure to bring action to trial within statutory period,
estoppel requires reasonable reliance by plaintiff on “statements or conduct by
a defendant which lulls the plaintiff into a false sense of security resulting
in inactionâ€]; cf. Jordan v. Superstar
Sandcars (2010) 182 Cal.App.4th 1416, 1422-1423 [defendants not
estopped from relying on five-year dismissal statute; defense counsel’s notice
of unavailability for trial that extended beyond five-year cutoff date did not
constitute any misrepresentation or waiver; it is plaintiff’s obligation to
monitor case and keep track of relevant dates].)
Far more apt
than Rose v. Scott, supra, 233
Cal.App.3d 537 is Sanchez v. City of Los
Angeles, supra, 109 Cal.App.4th 1262, in which our colleagues in
Division Three of this court held the five-year statute was not tolled on the
ground of impossibility, impracticability or futility during a stipulated
continuance of the trial date after the death of defendant’s counsel. Because ample time remained for plaintiffs to
bring a motion to advance the trial date so trial could commence prior to the
five-year cutoff date, the court concluded plaintiffs had failed to establish
the requisite causal connection between the death and plaintiffs’ failure to
bring the case to trial within the statutory period. (Sanchez,
at pp. 1271-1272.) Justice Croskey
explained for the court, “[T]here was no causal connection between the
circumstances upon which plaintiffs are relying and their failure to bring the
action to trial within five years. The
failure to bring the action to trial within five years was not due to the
suicide of [defendant’s] attorney; nor was it due to the four-month period
between the date [defendant’s] need for independent counsel arose and [the new
attorney’s] entry into the case . . . . [T]he failure to try the case within five years
was not impracticable for the reasons proffered. [¶]
Rather, plaintiffs’ failure to bring the action to trial within five
years is attributable to their counsel’s lack of diligence in failing to keep
apprised of the case’s chronology.†(
in State Farm’s request to continue the January 2011 status conference—civility
that is to be commended. But at the April 4, 2011 conference, when the December 5, 2011 trial date was
set, the Hindin parties could have advised the court of the case’s chronology
and asked for a trial date before the three-year cutoff date. As in Sanchez,
the death of defense counsel “did not result in a situation over which plaintiffs
had no control.†(Id. at p. 1273.)
In sum, it was
the Hindin parties’ obligation to exercise diligence and to protect their right
to a trial. The trial court did not
abuse its discretion in concluding, in light of their failure to do so, any delay
in the wake of James Robie’s death did not make it impossible, impracticable or
futile to bring the case to trial by July 13, 2011.
DISPOSITION
The judgment is affirmed. State Farm is to recover its costs on appeal.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
published 2004 opinion, we have addressed a variety of issues arising from the
malicious prosecution action in three nonpublished opinions,
Hindin v. Rust (Feb. 14, 2001,
B135446) and Hindin v. Wehner &
Perlman (Aug. 28, 2012, B216500, B223061, B228056).
are to the Code of Civil Procedure unless otherwise indicated.
