Misuraca v. >Lyons>

















Filed 3/5/13 Misuraca v. Lyons CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




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MALCOLM A. MISURACA, Plaintiff and Appellant, v. DAVID LYONS et al. Defendants and Respondents.

A133378, A135026 (Marin County Super. Ct. No. CIV 063033)

Malcolm
A. Misuraca, proceeding in propria persona
here and below, appeals from orders of the trial court dismissing his suit
against defendants David and Phyllis Lyons (the Lyons), because it had not come
to trial within five years from the time it was filed, and awarding attorney’s
fees to the Lyons. We find no merit in
Misuraca’s arguments that the trial court should have estopped the Lyons
from seeking dismissal and that the court abused its discretion in ordering the
dismissal. Accordingly, we affirm the
dismissal of Misuraca’s suit against the Lyons. Because Misuraca’s request for reversal of
the award of attorney’s fees is dependent on reversal of the dismissal, we also
affirm the award of attorney’s fees.

>BACKGROUND

In
July 2006, Misuraca filed suit to recover $57,451.61 in allegedly unpaid
attorney’s fees and costs from the Lyons
and from Nacio Systems, Inc. (Nacio), which had allegedly guaranteed payment on
behalf of Lyons. Lyons
cross-complained against Nacio for indemnity.
Nacio filed a cross-complaint against the Lyons
for indemnity, contribution and for damages for malfeasance in office, fraud,
and wrongful conversion of corporate assets.


Nacio
filed for bankruptcy and, in February 2008, filed a notice of an automatic stay
in the superior court. The notice of stay
stated that it applies to the parties “Nacio Systems, Inc., a Nevada
corporation, David Lyons, [and] Phyllis Lyons.”


In
a December 19, 2008 case management statement, Nacio stated, in regard to when
it would not be available for trial:
“Case is subject to Bankruptcy Court stay for Nacio Systems (Nevada) and
by court and counsel’s agreement is stayed as to all parties pending bankruptcy
resolution due to central position Nacio Nevada plays in the proceedings.” Nacio stated this again in its March 24, 2009
case management statement, but moved it to the “Other Issues” section as an
additional matter to be considered or determined at the case management
conference.

In
a March 3, 2010 case management statement, the Lyons stated in their
description of the case: “Parties in
this action continue to be subject to the Bankruptcy automatic stay.”

In
a February 16, 2011 case management statement, the Lyons stated in their
description of the case: “Misuraca is
stayed from proceeding against Nacio in the main action. Likewise, the Lyons are stayed from
proceeding against Nacio in its cross-complaint for indemnification. However, Nacio’s cross-complaint against the
Lyons . . . for contribution, malfeasance, conversion of corp.
assets, etc., is not stayed. The
Bankruptcy trustee has not indicated how it intends to proceed. However,
Misuraca & Lyons cannot prosecute their complaint and cross-complaint
with Nacio as a party.” In the section
concerning trial date, they stated:
“Misuraca’s main action and the Lyons cross-complaint cannot be
prosecuted as long as Nacio’s bankruptcy is pending & remains a
party.”

In
July 2011, the Lyons filed a motion, pursuant to Code of Civil Procedure
section 583.310 et seq.,href="#_ftn1"
name="_ftnref1" title="">[1] to dismiss
Misuraca’s complaint because five years had passed since Misuraca filed the
action. They argued that because a
bankruptcy stay protects only the debtor, and not related third parties,
Misuraca was obligated to prosecute his case against them, but had failed to do
so.

Misuraca
opposed the Lyons’ motion, arguing that the Lyons were mistaken “that a stay
for one defendant in California litigation obligates the plaintiff to seek to
bring the rest of the defendants to trial within five years.”

The
court dismissed Misuraca’s complaint against the Lyons on August 29, 2011,
finding that Misuraca had failed to establish the existence of impossibility,
impracticability, or futility preventing him from bringing the case to trial
within five years. Misuraca timely
appealed. The trial court subsequently
awarded attorney’s fees to the Lyons, pursuant to Civil Code section 1717. Misuraca filed a second appeal, requesting
that we reverse the grant of attorney’s fees if we reverse the dismissal of his
case against the Lyons.

>DISCUSSION

I. Legal Background and Standard of Review

Section
583.310 provides: “An action shall be
brought to trial within five years after the action is commenced against the
defendant.” In computing this five-year
period, time may be excluded for the following reasons: (1) “jurisdiction of the court to try the
action was suspended”; (2) “[p]rosecution or trial of the action was stayed or
enjoined”; and (3) “[b]ringing the action to trial, for any reason, was
impossible, impracticable, or futile.”
(§ 583.340.)

The
provision allowing exclusion of time for impossibility, impracticability, or
futility “must be liberally construed, consistent with the policy favoring
trial on the merits.” (>De Santiago v. D &G Plumbing, Inc.
(2007) 155 Cal.App.4th 365, 371.) “The
determination ‘of whether the prosecution of an action was indeed impossible,
impracticable, or futile during any period of time, and hence, the
determination of whether the impossibility exception to the five-year statute
applies, is a matter within the trial court’s discretion. Such determination will not be disturbed on
appeal unless an abuse of discretion is shown.
[Citations.]’ ” (>Sanchez v. City of Los Angeles (2003)
109 Cal.App.4th 1262, 1271.)

II. Misuraca’s Claim of Estoppel

Misuraca
claims that the Lyons and Nacio led the trial court into error by claiming, for
five years, that Nacio’s bankruptcy stay applied to Misuraca’s action against
the Lyons, and then, when the five-year period for bringing his suit to trial
had passed, changing their representations to the court and moving for
dismissal. Because of the Lyons’ alleged
misrepresentations to the court, Misuraca argues that they should be estopped
from seeking dismissal under section 583.310.
As evidence of the alleged misrepresentation, Misuraca cites the
passages, quoted above, from the notice of stay and case management statements.

“The
doctrine of equitable estoppel is applicable to section 583.310 dismissal
motions. [Citations.] If a trial court finds statements or conduct
by a defendant which lulls the plaintiff into a false sense of security
resulting in inaction, and there is reasonable reliance, estoppel must be
available to prevent defendant from profiting from his deception.” (Tejada
v. Blas (1987) 196 Cal.App.3d 1335, 1341.)

Misuraca
undermines his case for estoppel by conceding that, even if the Lyons made the
misrepresentations he alleges, he did not accept them.href="#_ftn2" name="_ftnref2" title="">>[2] Because Misuraca believed that the bankruptcy
stay did not apply to his action against the Lyons, he cannot attribute inaction
on his part to the Lyons’ alleged misrepresentations.

However,
Misuraca’s actual claim is that the Lyons misled the court, not him. The problem for Misuraca is that he fails to
explain what actions the court took, adverse to him, that were the result of
the alleged misrepresentations. During
the five years the case was on the docket, the court did routinely continue
case management conferences a few months at a time, but Misuraca does not argue
that he opposed these continuances.

As
the court in Lane v. Newport Bldg. Corp.
(1986) 176 Cal.App.3d 870, 874-875 (Lane)
noted, a plaintiff in Misuraca’s position has a number of avenues by which he
might preserve his rights: “(1)
apprising the trial court at the mandatory settlement conference of the problem
presented by [the] bankruptcy stay; (2) moving the court or proposing a
stipulation to stay the entire action, pending the outcome of the bankruptcy
proceeding; (3) proposing a stipulation to extend the time within which the
action must be brought to trial [citation]; (4) moving the court to specially
set the entire action for trial prior to the expiration of the five-year period
pursuant to rule 375(b) of the California Rules of Court [citation]; (5) moving
the court to sever the causes pertaining to [the defendant in bankruptcy
proceedings] [citation] and proceeding

to trial on the remaining causes
against respondents; or (6) seeking relief from the stay as to [the defendant
in bankruptcy proceedings] in bankruptcy court.
[Citation.]” Misuraca did none of
these things and was not prevented from doing so by the alleged
misrepresentations of the Lyons.
Accordingly, we reject Misuraca’s argument that the Lyons should be
estopped from seeking to enforce the five-year period for bringing the suit to
trial.

III. The Five-Year Period for Bringing Misuraca’s Suit to Trial

Because
Nacio was involved in bankruptcy
proceedings and a notice of stay was filed with the court, the five-year
period for bringing to trial Misuraca’s suit against Nacio was tolled. However, “the general rule is that bankruptcy
stays only toll the five-year period as to the bankrupt.” (Santa
Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d
1026, 1036.) Thus, unless some other
factor operated to make it impossible, impracticable, or futile for Misuraca to
prosecute his suit against the Lyons, that suit exceeded the five-year
statutory period and there was no abuse of discretion by the trial court when
it dismissed the suit.

Nevertheless,
Misuraca argues: “The California Supreme
Court has for many decades disapproved severing claims against two or more
defendants to bring a case to trial against one within five years. There is one five-year statute for each case,
not one for each defendant.” In support
of this argument, Misuraca cites Brunzell
Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 553-554 (Brunzell): “In many
situations in which it is impossible or impracticable to proceed against one
codefendant it may be impracticable, in terms of the burden both to the parties
and to judicial administration as a whole, to proceed against other defendants
in a separate suit. To require a
plaintiff to sever causes of action against multiple defendants >whenever it becomes impossible or
impracticable to proceed against one defendant within the five-year period
would be to require unproductive duplication of effort, compel the incurrence
of excessive expense, and generally undermine all the policies served by modern
theories of consolidation in a substantial number of cases.” href="#_ftn3"
name="_ftnref3" title="">[3]

“The
lesson that we learn from Brunzell .
. . as applicable here, is that whether it is impracticable to bring a case to
trial against a particular defendant depends on the circumstances of the
particular case and ‘practical realities’ . . . .” (Dowling
v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 699.) Brunzell
did not involve a stay for bankruptcy proceedings, which do not present a
compelling case for consideration of the concerns expressed by the >Brunzell court. As one court expressed it: “Appellants’ further argument that it would
be impractical or futile to proceed to trial without [the defendant in
bankruptcy proceedings] ignores the fact that the bankruptcy might effectively
result in the discharge of any claims appellants might have against [that
defendant]. [Citation.] Thus, appellants fail to demonstrate that
they would ever be in a position to prove their alleged causes of action
against [that defendant] after termination of the bankruptcy proceeding.” (Lane,
supra, 176 Cal.App.3d at p. 875.)

In
Lane, the plaintiffs filed a
complaint against multiple defendants. (>Lane, supra, 176 Cal.App.3d at p. 872.)
The defendants answered and filed a cross-complaint against a
third-party, who was subsequently substituted as a named defendant for “DOE II”
in the complaint. (Ibid.) The third-party
defendant then filed for bankruptcy and the bankruptcy court issued an
automatic stay order. (>Ibid.)
More than five years after the suit was originally filed, the original
defendants filed a motion to dismiss the action, which the trial court granted,
because the suit had not yet come to trial.
(Id. at p. 873.) The plaintiffs appealed, claiming that it was
impractical and futile for them to bring the action to trial within five years
because one of the defendants, a necessary party, was in bankruptcy. (Ibid.) As noted above, the Lane court rejected the plaintiffs’ argument and found no abuse of
discretion on the part of the trial court.
(Id. at p. 875.)

Here,
Misuraca is positioned similarly to the plaintiffs in Lane. Unlike the plaintiffs
in Lane, he does not argue that it
was impossible, impractical or futile for him to proceed separately against the
Lyons. Rather, he attempts to convince
us that “[t]here is one five-year statute for each case, not one for each dname="_GoBack">efendant.” While this
may be true as an abstract notion, the clear import of cases like >Lane is that the five-year period may be
tolled for some defendants but not for others.

Misuraca
has not demonstrated that the trial court wrongly applied the law when it
dismissed his case against the Lyons, nor has he shown that any of the factors
that would toll the five-year period against the Lyons applied. The only feature of this case that would
distinguish it from a case such as Lane
is Misuraca’s argument for estoppel, an argument we rejected above. Accordingly, we discern no abuse of
discretion on the part of the trial court and affirm its order dismissing
Misuraca’s action against the Lyons.

IV. The Award of Attorney’s Fees to Lyons

Misuraca’s
argument that we reverse the award of attorney’s fees to the Lyons is dependent
on our first concluding that the dismissal of his suit against the Lyons be
reversed. Because we affirm the dismissal,
we also affirm the award of attorney’s fees.

>DISPOSITION

The
trial court’s orders dismissing Misuraca’s suit against the Lyons and granting
the Lyons attorney’s fees are affirmed.



_________________________

Lambden,
J.





We concur:





_________________________

Haerle,
Acting P.J.





_________________________

Richman,
J.