Filed 8/19/26 Malouf v. Godoy CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ELIAS MALOUF et al.,
Plaintiffs and Respondents, G065888
v. (Super. Ct. No. 30-2017-
00930508)
AUGUSTINE BRADY GODOY,
OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Thomas S. McConville, Judge. Affirmed.
TALG and John A. Gladych for Defendant and Appellant.
No appearance for Plaintiffs and Respondents.
* * *
Defendant Augustine Brady Godoy appeals from a judgment
entered after the court denied his motion to dismiss the action for plaintiffs
Elias Malouf and Najwa Malouf’s purported failure to bring the action to trial
within five years. In finding the five-year deadline had not expired, the court
excluded the time when a related criminal case was pending. The court held
it would be impracticable or futile to bring the case to trial during that time.
(Code Civ. Proc., § 583.340, subd. (c).)1
On appeal, defendant contends the court erred by excluding the
time when the criminal case was pending. He also argues the court relied on
mistaken assumptions, and plaintiffs were not reasonably diligent in
prosecuting their case.
We disagree with defendant’s contentions and affirm the
judgment.
STATEMENT OF FACTS
On July 10, 2017, plaintiffs filed the operative complaint against
defendant for the wrongful death of their son. Around the same time, a
criminal case was pending against defendant for murdering plaintiffs’ son.
(People v. Godoy (Dec. 16, 2022, G060340) [nonpub. opn.].)
I.
CONTINUANCES OF THE ACTION AND A STAY OF PROCEEDINGS
On December 19, 2017, the court issued a minute order noting
plaintiffs’ counsel had indicated the criminal case against defendant was
pending. The court continued the matter several times until July 8, 2019. The
time period from December 19, 2017 to July 8, 2019 is central to this appeal.
1
All further statutory references are to the Code of Civil
Procedure.
2
On July 8, 2019, the court stayed the action pending completion
of the criminal case. The court lifted the stay on August 3, 2021, after the
criminal case concluded.
II.
DEFENDANT’S MOTION TO DISMISS
In February 2025, defendant filed a motion to dismiss the case,
arguing plaintiffs did not bring the case to trial within five years as
mandated by section 583.310. Defendant asserted the only applicable tolling
period was between July 8, 2019 and August 3, 2021 when the case was
stayed, plus an additional six months. (Cal. Rules of Court, appen. I,
emergency rule 10(a) [extending five-year period by six months due to the
COVID-19 pandemic].) By defendant’s calculation, plaintiffs should have
brought the matter to trial by February 6, 2025.
In April 2025, the court denied defendant’s motion. Relying on
section 583.340, subdivision (c), the court held it was impracticable or futile
to bring the case to trial from December 19, 2017 through August 3, 2021.
The court explained: “Given defendant’s not guilty plea in his then-pending
criminal case . . . and his Fifth Amendment right against self-incrimination—
plaintiffs’ attempts to obtain the evidence and discovery they would have
needed at the time (whether through the Orange County District Attorney’s
office or through defendant himself) to establish defendant’s liability for
wrongful death would have been impractical and/or futile.” The court
accordingly excluded the time when the criminal case was pending and
concluded the case had to be brought to trial by August 24, 2026, which had
not yet passed.
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III.
WRIT PROCEEDINGS AND TRIAL
In May 2025, this court summarily denied defendant’s petition
for writ of mandate and request for immediate stay. The next day, the case
proceeded to a trial. In July 2025, the trial court entered judgment against
defendant and awarded over $10 million to plaintiffs. Defendant timely
appealed.
DISCUSSION
Defendant argues the court erred by denying his motion to
dismiss. He insists the court mistakenly found the time from December 19,
2017 to July 8, 2019 qualified for tolling under section 583.340, subdivision
(c). He also contends the court relied on erroneous assumptions to reach its
conclusion. Finally, he claims plaintiffs were not reasonably diligent in
prosecuting their case. For the reasons post, the court did not err by denying
defendant’s motion.
I.
APPLICABLE LAW AND STANDARD OF REVIEW
“An action shall be brought to trial within five years after the
action is commenced against the defendant.” (§ 583.310.) In 2020, the
Judicial Council issued emergency rule 10(a), which provides:
“Notwithstanding 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. I, emergency rule 10(a).)
If a plaintiff does not bring an action to trial within the time
prescribed, the action “shall be dismissed by the court on its own motion or on
motion of the defendant, after notice to the parties.” (§ 583.360, subd. (a).) To
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determine whether the prescribed period has expired, the court must exclude
any time when: “(a) [t]he jurisdiction of the court . . . was suspended[;] [¶] (b)
[p]rosecution or trial of the action was stayed or enjoined[;] [and] [¶] (c)
[b]ringing the action to trial . . . was impossible, impracticable, or futile.” (§
583.340, subds. (a)–(c), italics added.)
Under the last exception, applicability of which is central to this
appeal, “a plaintiff must prove (1) a circumstance establishing impossibility,
impracticability, or futility, (2) a causal connection between the circumstance
and the failure to move the case to trial within the five-year period, and (3)
that [he or] she was reasonably diligent in prosecuting her case at all stages
in the proceedings.” (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22
Cal.App.5th 313, 323.) The period of impossibility, impracticability, or futility
must be one “‘over which plaintiff had no control.”’” (Gaines v. Fidelity
National Title Ins. Co. (2016) 62 Cal.4th 1081, 1102, italics omitted.)
We review a trial court’s decision to exclude time for
impossibility, impracticality, or futility for abuse of discretion. (Seto v. Szeto
(2022) 86 Cal.App.5th 76, 86.) We also keep in mind “the policy favoring trial
or other disposition of an action on the merits [is] generally to be preferred
over the policy that requires dismissal for failure to proceed with reasonable
diligence in the prosecution of an action.” (§ 583.130.) The tolling provisions
of section 583.340 are therefore “construed liberally, consistent with the
policy favoring trial on the merits.” (Tanguilig v. Neiman Marcus Group, Inc.,
supra, 22 Cal.App.5th at p. 323.)
II.
EXCLUDING THE TIME FROM DECEMBER 19, 2017 TO JULY 8, 2019
Here, the court did not abuse its discretion by excluding the
period from December 19, 2017 through July 8, 2019. The criminal case was
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pending during this time and arose from the same underlying events as the
civil action. Defendant also does not dispute that he pleaded not guilty in the
criminal case and had not waived his Fifth Amendment right against self-
incrimination during the disputed time period. Given these facts, the court
reasonably concluded it would be impracticable to bring the action to trial
during the pendency of the criminal case. As the court noted, plaintiffs likely
would not be able to obtain the evidence and discovery they needed to
establish defendant’s liability for wrongful death. (See People ex rel. Burns v.
Wood (2024) 103 Cal.App.5th 700, 712–713 [courts have discretion to stay a
civil case when a parallel criminal case is pending]; County of Orange v.
Superior Court (2000) 79 Cal.App.4th 759, 764 [“[e]vidence gathered by police
as part of an ongoing criminal investigation is by its nature confidential”];
Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690 [noting federal
courts hold “that when both civil and criminal proceedings arise out of the
same or related transactions, an objecting party is generally entitled to a stay
of discovery in the civil action until disposition of the criminal matter”].)
Defendant argues the court incorrectly assumed he would invoke
his Fifth Amendment right when he, in fact, testified in the criminal trial.
The record, however, does not establish when his testimony occurred—i.e.,
whether it occurred during the disputed time or after. We therefore cannot
conclude his criminal testimony negated the circumstances on which the trial
court relied.
Defendant likewise claims the court incorrectly assumed
plaintiffs could not conduct discovery when there was no evidence to support
this assumption. He suggests plaintiffs could have conducted discovery but
chose not to do so. Regardless, the court was entitled to consider the effect the
criminal case could have on plaintiffs’ ability to obtain discovery. In other
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words, the court did not err by concluding the potential assertion of
defendant’s Fifth Amendment right presented a substantial obstacle to
plaintiffs’ ability to prepare the case for trial.
Defendant next emphasizes the case was not formally stayed
during the disputed time period. Instead, he notes the court repeatedly
continued the matter at plaintiffs’ request.2 But this fact does not compel a
different result. A complete stay falls within section 583.340, subdivision (b).
Circumstances that do not constitute a formal stay may still qualify for
exclusion under section 583.340, subdivision (c) if those circumstances made
it impossible, impracticable, or futile to bring the action to trial. (See Bruns v.
E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 729–731.) Thus, the
absence of an order expressly staying the action does not foreclose application
of section 583.340, subdivision (c).
Finally, defendant suggests plaintiffs were not reasonably
diligent in prosecuting their case because they merely wanted to wait until
the criminal case concluded. Not so. Plaintiffs’ decision to inform the court
about the pending criminal case does not demonstrate a lack of diligence.
Instead, plaintiffs’ decision to await resolution of the criminal case was a
reasonable response, particularly because the pending criminal case impaired
plaintiffs’ ability to obtain evidence necessary to try the civil action. We also
are not persuaded by defendant’s claim that the court made no express
findings as to plaintiffs’ diligence. The court detailed the law regarding
reasonable diligence, and its ruling necessarily implied findings in plaintiffs’
2
Defendant states plaintiffs requested several continuances, but
these requests are not included in the record on appeal. Instead, the record
only includes the court’s minute orders. One of the minute orders indicates
plaintiffs’ counsel requested a continuance.
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favor on the facts necessary to support application of section 583.340,
subdivision (c). (Warner Bros. Entertainment Inc. v. Superior Court (2018) 29
Cal.App.5th 243, 267.)
In short, the court did not err by denying defendant’s motion to
dismiss.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs on
appeal.
SANCHEZ, ACTING P. J.
WE CONCUR:
GOODING, J.
SCOTT, J.
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