Pambid v. Gamino
Filed 7/25/13 Pambid v. Gamino CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
LARRY
PAMBID,
Plaintiff and Appellant,
v.
GUADALUPE
GAMINO,
Defendant and Respondent.
A135510
(City & County of San Francisco
Super. Ct. No. CGC-06-450119)
Larry
Pambid appeals a judgment dismissing his legal
malpractice action against Guadalupe Gamino entered on an order to dismiss
for failure to prosecute pursuant to Code of Civil Procedure
section 583.310. We affirm.
BACKGROUND
In
2003, Pambid and his grandfather, George Pambid, retained Gamino to draft a
living trust and grant deed for purposes of transferring George’s interest in
certain real property to Pambid. Gamino
allegedly failed to record the deed before George died, which resulted in
Pambid having no ownership interest in the real property. In March 2006, Pambid filed a complaint for
malpractice.
In
October 2007, the court granted Pambid’s request for entry of default against
Gamino. In December 2007, following a
default prove-up hearing, the court entered a default judgment against Gamino
in favor of Pambid in the amount of $279,168.79. Thereafter, in June 2008, Gamino moved to set
aside the default judgment, which the court granted in July 2008. The court directed Gamino to prepare the
order granting the motion to set aside the default judgment.
Over
the course of the next several months, Gamino refused to comply with Pambid’s
discovery requests, which resulted in a successful motion to compel by Pambid
in November 2008 and sanctions against Gamino in July 2009. Meanwhile, Gamino had failed to comply with
the trial court’s July 2008 directive to prepare the order granting the motion
to set aside the default judgment.
Finally, in November 2009, Pambid took it upon himself to prepare and
file the order granting the motion to set aside the default.
In
December 2009, Gamino answered the complaint and also filed a cross-complaint
for indemnity against Kevin Ford, alleging that Gamino had retained Ford’s
services with respect to the creation of the trust and recording of the grant
deed. Following an unsuccessful
demurrer, cross-defendant Ford answered the cross-complaint in January 2011.
In
August 2011, Gamino filed a motion to dismiss under section 583.310 for failure
to bring the matter to trial within five years after the action was
commenced. The court granted the
unopposed motion on August 31. In
October 2011, Pambid moved to set aside the dismissal, alleging that Gamino never
served him with the motion to dismiss and failed to send him a notice of entry
of the order granting dismissal. The
court granted Pambid’s motion to set aside the dismissal in November 2011. Thereafter, in December 2011, Pambid filed a
motion for an order advancing the case for trial. In the accompanying declaration, Pambid’s
attorney averred that the five-year dismissal statute would run in December
2012 and that the matter must come to trial before that date. In an amended declaration filed in January
2012, Pambid’s attorney advised the court that he had recalculated the
timeframe and that the five-year dismissal would run on May 6, 2012. On January 19, the court notified the parties
that a court trial would commence on April 9, 2012.
In
February 2012, based on the parties’ stipulation, the court granted an order to
sever the cross-complaint. Then, in
March 2012, Gamino filed a second motion to dismiss the complaint for failure
to bring the action to trial within five years of the commencement of the
action. On March 29, the court exercised
its discretion to grant the motion to dismiss, finding that after considering
the periods when the action was tolled due to impossibility— i.e., the time
when the default and default judgment were in effect (October 31, 2007 through
July 31, 2008,) and the time when the dismissal was in effect (August 31, 2011
through November 17, 2011)—the deadline for commencing trial was February 22,
2012. In so ruling, the court explained
that Pambid “failed to show that any further tolling is warranted or that there
is any basis for an estoppel.†The
action was dismissed and the instant appeal followed.
Pambid
contends the five-year limitation period did not bar his action because the
trial court miscalculated periods during which bringing the action to trial was
impossible, impracticable, or futile.
Pambid further contends Gamino’s conduct throughout the litigation
formed the basis for waiver and estoppel.
A. Applicable Law and Standard of Review
Section 583.310 provides that an
“action shall be brought to trial within five years after the action is
commenced against the defendant.†The
five-year period may be extended by written stipulation or oral agreement made
in open court. (§ 583.330.) Also, the
five-year period is tolled while (1) the jurisdiction of the court is
suspended, (2) the action has been stayed or enjoined, or (3) bringing the
action to trial is impossible, impracticable, or futile. (§ 583.340.)
“ ‘ “[T]he purpose of the [five-year] statute is ‘to prevent avoidable
delay for too long a period.’ †’ †(Tamburina
v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328 (Tamburina).) If the action is not brought to trial in the
time prescribed by statute, it “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).)
Notwithstanding the mandatory
language in the statute, 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 absent an abuse of
discretion. (De Santiago v. D & G
Plumbing, Inc . (2007) 155 Cal.App.4th 365, 371 (De Santiago); Sanchez
v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271 (Sanchez).) In contrast, the statute’s application to
undisputed facts we review de novo. (Tamburina,
supra, 147 Cal.App.4th at p. 328.)
B. Calculation of the Five-Year Limitation
Period
Pambid
argues that the five-year statute was tolled for approximately four and half
years because of defendant’s evasive conduct: three years and nine months from
March 2006 (the date the complaint was filed), through December 2009 (the date
Gamino answered the complaint),
name="_ftnref3" title="">[3]
and nine months from August 2008 (the date Pambid propounded his discovery
requests), and May 2009 (the date Gamino served his responses).
Not every period of time during
which it is impossible, impracticable, or futile for a plaintiff to bring the
case to trial actually tolls the running of the five-year period. (Tamburina,
supra, 147 Cal.App.4th at p. 329; Sanchez, supra, 109 Cal.App.4th at
p. 1270.) Rather, a plaintiff
seeking to invoke the tolling provision of section 583.340 for impossibility,
impracticability, or futility bears the burden of showing “(1) a circumstance
of impracticability; (2) a causal connection between that circumstance and the
plaintiff's failure to move the case to trial; and (3) that the plaintiff was
reasonably diligent in moving the case to trial.†(De Santiago, supra, 155 Cal.App.4th
at p. 372, quoting Tamburina, supra, 147 Cal.App.4th at pp. 328-329,
333, 336; see also Howard v. Thrifty Drug & Discount Stores (1995)
10 Cal.4th 424, 432 [discussing prior case in which court found party “to have
been reasonably diligent, and therefore within the ‘impossible, impracticable,
or futile’ exceptionâ€].)
Some courts have described “ ‘ “
diligence in prosecuting its case†’ †as “ ‘ “[t]he critical factor†’ †in assessing what is impossible,
impracticable, or futile. (Sanchez,
supra, 109 Cal.App.4th at p. 1270, quoting Moss v. Stockdale, Peckham
& Werner (1996) 47 Cal.App.4th 494, 502 [“ ‘reasonable diligence
alone is not sufficient to protect a party from an involuntary dismissal;
rather, reasonable diligence constitutes a guideline by which to assess the
existing exceptions of impossibility, impracticability, or futility’ â€].)
A plaintiff seeking to toll the
five-year rule based on impossibility, impracticality, or futility must show he
has “exercise[d] reasonable diligence at all stages of the proceedings â€
and the level of diligence required increases as the five-year deadline
approaches. (Tamburina, supra,
147 Cal.App.4th at p. 334, italics added; Sanchez, supra, 109
Cal.App.4th at p. 1270.)
Applying these principles, the trial
court was within its discretion to reject Pambid’s claim that it was
impossible, impracticable, or futile for him to bring the case to trial within
the five-year period because of Gamino’s conduct.
1. Time Between Complaint and Answer
Although the complaint was filed in
October 2006 and Gamino did not answer until December 2009, Pambid, contrary to
his suggestion, was not entitled to toll the limitations period for three years
and nine months. First, the trial court
already excluded the nine-month period in which the default judgment was in
effect (October 2007 through July 2008).
Pambid may not count this period twice.
Second, although plaintiff attempts on appeal to lay at defendant’s feet
the responsibility for the delay, he cannot escape the fact that he, not
defendant, was responsible for moving the matter toward trial. Nor has he demonstrated here that he
exercised the requisite diligence at all stages of the proceedings. While it was Gamino’s responsibility to draft
the order setting aside the default judgment, once the order—which effectively
resuscitated the lawsuit—was not forthcoming, Pambid as the proponent of the
action was responsible for moving the matter forward. Pambid, however, waited two to three months
before taking any action. Once the order
dismissing the default judgment was filed, Gamino timely answered the
complaint. There was no abuse of
discretion here.
2. Time Elapsed For Discovery
Equally
without merit is Pambid’s claim that Gamino’s conduct during discovery entitled
him to add nine months to the applicable tolling period. “Generally,
delays encountered in discovery are part of the ‘normal delays involved in
prosecuting lawsuits’ and do not excuse failure to bring a case to trial within
the five-year limit.†(Bank of America v. Superior Court (1988) 200
Cal.App.3d 1000, 1016.) It is Pambid’s
burden to show it was impossible, impracticable, or futile to proceed to trial
without the delayed discovery. (Ibid.) He has not even attempted to do so. Consequently, he fails to meet his burden of
establishing, either as a matter of law or as a question of fact, that any
limitation on the conduct of discovery was responsible for his failure to bring
his case to trial within the limitations period.
C. Equitable Estoppel and Waiver
Pambid next argues that Gamino was
barred from seeking dismissal of the action under the doctrines of waiver and
equitable estoppel. We address each
claim in turn.
1. Waiver
Pambid urges that Gamino agreed to
waive the five-year statute by stipulating to sever his cross-complaint from
the main action and by agreeing to set a trial date beyond the applicable
limitations period. This assertion is
supported neither in fact nor in law.
Pursuant to section 583.330, “The
parties may extend the time within which an action must be brought to trial
pursuant to this article by the following means: [¶] (a) By written
stipulation. The stipulation need not be filed but, if it is not filed, the
stipulation shall be brought to the attention of the court if relevant to a
motion for dismissal. [¶] (b) By oral agreement made in open court, if
entered in the minutes of the court or a transcript is made.â€
Here, nothing in the record suggests
that Gamino agreed to extend the time for trial on the complaint. Moreover, a cross-complaint is treated as a
separate action with its own five-year deadline, commencing when the original
cross-complaint is filed. (See
§ 583.110; General Motors Corp. v. Superior Court of Los Angeles County
(1966) 65 Cal.2d 88, 93 [discussing former section 583]); Tomales Bay etc.
Corp. v. Superior Court (1950) 35 Cal.2d 389, 393; Bradley v. Breen
(1999) 73 Cal.App.4th 798, 803.)
Manifestly, severing a
cross-complaint is neither a written stipulation nor an oral agreement made in
open court to extend the time of trial on the complaint. Pambid’s efforts to convince us otherwise are
unpersuasive.
2. Equitable Estoppel
The doctrine of equitable estoppel
is applicable to section 583.310 dismissal motions. (Tresway Aero, Inc. v. Superior Court
(1971) 5 Cal.3d 431, 438; Griffis v. S .S. Kresge Co. (1984) 150 Cal.App.3d 491, 498.) 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 is available
to prevent a defendant from profiting from his deception. (Griffis, supra, at pp. 498-499; Borglund
v. Bombardier, Ltd. (1981) 121 Cal.App.3d 276, 281.) Equitable estoppel can be found only when
(1) the party to be estopped was aware of the true facts; (2) that party
either intended that its act or omission be acted upon, or so acted that the
party asserting estoppel has a right to believe it was intended; (3) the party
asserting estoppel was unaware of the true facts; and (4) the party asserting
estoppel relied on the other party’s conduct to its detriment. (Lusardi
Construction Co. v. Aubry (1992) 1 Cal.4th 976, 994.)
Here, the record contains no
evidence that Gamino made any representations to Pambid concerning the
calculation of the five-year period or that he would agree to an extension of
the five-year period. Although Pambid
cites to Gamino’s various “attempts to delay and . . . ‘run out the
clock,’ †Pambid has failed to demonstrate how any of this conduct would
have lulled him into a reasonable false sense of security.
We
conclude the trial court acted well within its discretion in finding no basis
for extending the tolling periods based on Gamino’s conduct.
The
judgment of dismissal is affirmed.
Respondent Gamino is entitled to recover his costs on appeal.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
name="_ftn1" title="">[1] All further undesignated statutory
references are to the Code of Civil Procedure.
In October 2009, prior to filing
the order, Pambid’s attorney prepared a draft order and sent it to Gamino in
September 2009; Gamino, however, never responded to Pambid’s letter.
