Zack’s Inc. v. City of >Sausalito>





















Filed 5/13/13 Zack’s Inc. v. City of Sausalito CA1/2













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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




>

ZACK’S INC., Plaintiff and Appellant, v. CITY OF SAUSALITO, Defendant and Respondent.

A134339 (Marin County Super. Ct. No. CV05-0995)

>INTRODUCTION

Plaintiff
Zack’s Inc. (Zack’s) appeals from a judgment dismissing its lawsuit against
defendant City of Sausalito (City) for failure to bring its action to trial
within the mandatory time periods set forth in Code of Civil Procedure sections
583.310, 583.320, subdivision (a)(3) and 583.360. href="#_ftn1" name="_ftnref1" title="">[1] Zack’s contends the trial court erroneously
applied these dismissal statutes. The
crux of Zack’s claim on appeal is that the court was required to find the
statutes tolled under section 583.340, subdivision (c), for periods during
which various summary judgment or summary judgment/summary adjudication motions
were pending as time during which it was “impossible, impracticable or futile”
to bring the action to trial.href="#_ftn2"
name="_ftnref2" title="">[2] We shall conclude Zack’s forfeited its right
to make this claim on appeal by failing to make it to the trial court. We shall affirm the judgment of dismissal.

PROCEDURAL
BACKGROUNDhref="#_ftn3" name="_ftnref3" title="">[3]

On
March 7, 2005, Zack’s filed
its original complaint for nuisance and inverse condemnation against the City
and Edgewater Yacht Sales, Inc. (Edgewater).
The City answered on April 5,
2005. Zack’s motion to file
a first amended complaint adding new causes of action and new defendants was
granted and the first amended complaint was filed on April 18, 2006.


On
November 20, 2006, City
filed points and authorities in support of a motion for summary judgment or
summary adjudication. The court granted
the summary judgment motion on March 1,
2007. Judgment in favor of
City and all defendants but Edgewater was entered on April 13, 2007.
(Judgment was entered in favor of Edgewater on June 14, 2007.)

On
June 12, 2007, Zack’s filed its href="http://www.mcmillanlaw.com/">notices of appeal. (Zack’s appeal from the Edgewater judgment
was filed on August 1, 2007.)

On
August 11, 2008, we issued
our opinion, reversing the trial court’s judgment and remanding the matter for
further proceedings. (>Zack’s, Inc. v. City of Sausalito, supra, 165
Cal.App.4th at p. 1195.) On October 17, 2008, the remittitur was
filed in the trial court.

After
remand, Zack was without counsel for two periods: the first, from April 27,
2009 through July 14, 2009, following
the grant of counsel’s motion to be relieved, based in part upon Zack’s request
that the attorney cease work on its behalf; the second, from August 16, 2010
through January 14, 2011, when Zack’s principal expressly consented to the
dismissal of Zack’s attorney. The court
advised Zack’s on both occasions that the corporation could not prosecute the
action without legal representation.
Trial was set for February 23,
2010. Zack’s moved to amend
the complaint on August 11, 2009. On October
26, 2009, the trial date was continued at City’s request as a
condition of granting Zack’s motion to amend.
The City then demurred and moved to strike portions of Zack’s second
amended complaint. The court sustained
the demurrers without leave as to certain causes of action and with leave to
amend as to others. There followed
several rounds of amendment of the complaint followed by demurrers, further
amendment and further demurrers, eventually resulting in the sustaining of
demurrers without leave to amend to causes of action for quiet title,
declaratory relief and promissory estoppel.


Zack’s
corporate charter was suspended for more than five months from November 1, 2010 to April 12, 2011, for failure to pay
taxes. During this time the corporation
was not able legally to prosecute the action, although subsequent corporate
revivor does not prevent the running of the statute
of limitations. (>Center for Self-Improvement and Community
Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552-1554; >Grell v. Laci Le Beau Corp. (1999) 73
Cal.App.4th 1300, 1306.) (Zack’s
continued to prosecute the case during its corporate suspension.)

On
May 2, 2011, City filed a
motion for summary judgment/ summary adjudication, that the court granted as to
some causes of action and denied as to others on September 13, 2011.


On
August 23, 2011, Zack’s and
its attorney attended a case management conference where the court set the case
for trial on January 20, 2012,
a date occurring after the mandatory dismissal deadline. Zack’s and counsel acquiesced to the
scheduled trial date and did not advise the court of the looming dismissal
deadline. Zack’s took no action to
specially set its case for trial within the requisite time periods.

On
October 5, 2011, City filed
a motion to specially set its motion for summary adjudication relating to
Zack’s claim of precondemnation damages.
The court granted that motion and set the hearing for December 20, 2011.

On
October 19, 2011, City
filed a motion to dismiss Zack’s fourth amended complaint for Zack’s failure to
bring the case to trial within the mandatory statutory time limits. On November 22, 2011, following a hearing, the
court entered its order dismissing the matter.
On January 18, 2012,
Zack’s filed a timely notice of appeal.

DISCUSSION

Dismissal for
Delay in Prosecution

Section
583.310 provides: “An action shall be
brought to trial within five years after the action is commenced against the
defendant.”

“The
mandatory dismissal statute is founded upon the policy of the diligent
prosecution of actions. [Citation.] A
plaintiff . . . has the duty ‘ “at every stage of the
proceedings to use due diligence to expedite his case to a final
determination.”
[Citations.]’ ” (>Perez v. Grajales (2008) 169 Cal.App.4th
580, 589 (Perez ).) “ ‘ “[T]he purpose of
the . . . 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).) A hearing on a demurrer, a motion for
judgment on the pleadings, or a motion
for summary judgment, when it is followed by a judgment of dismissal,
constitutes a “trial” for purposes of these two statutes. (McDonough
Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 530–533
[demurrer followed by a judgment of dismissal is a “trial” under former § 583,
subd. (b)]; see also Misic v. Segars
(1995) 37 Cal.App.4th 1149, 1153 [analyzing what constitutes a “trial” for
purposes of § 583.320 and concluding a default judgment does not]; >Finnie v. District No. 1–Pacific Coast Dist.
etc. Assn. (1992) 9 Cal.App.4th 1311, 1319 [concluding a dismissal for lack
of subject matter jurisdiction is a “trial”].)href="#_ftn4" name="_ftnref4" title="">[4]


Section 583.320
provides a statutory limit of three years for bringing an action to trial in
cases such as this, where a judgment has been reversed on appeal and the action
remanded for a new trial. The three-year
period begins to run on the date that the remittitur is filed by the trial
court. (§ 583.320, subd.
(a)(3).) However, subdivision (b) of
section 583.320 also provides: “Nothing
in this section requires that an action again be brought to trial before
expiration of the time prescribed in Section 583.310.” Therefore, subject to any tolling periods, section 583.320 required Zack’s to
bring its action to trial within three years of the remittitur to the trial
court on its prior appeal (i.e., October 17, 2011), or within the term provided under the five-year statute to the
extent it provided for a longer period.
The effect of section 583.320, subdivision (b) is to prevent a mandatory
dismissal of an action at a time more than three years after the filing of a
remittitur but less than five years since the filing of the complaint. (See >Balboa Ins. Co. v. Aguirre (1983) 149
Cal.App.3d 1002, 1006 [construing former § 583].) Hence, plaintiff gets the benefit of both the
three-year statute and the five-year statute and the action cannot be dismissed
unless both periods have expired. (>Bergin v. Portman (1983) 141 Cal.App.3d
23, 26.)

Section
583.360 makes dismissal mandatory if the requirements of section 583.320 are
not met, providing that the requirements are “mandatory and are not subject to
extension, excuse, or exception except as expressly provided by statute.” (§ 583.360, subd. (b).)

Zack’s
did not bring his action to trial within three years of the remittitur to the
trial court or within five years of filing the complaint, absent tolling. The court found, and the parties agree, that
the five-year statute was tolled for the period of time the case was on appeal
from the filing of the notice of appeal to the remittitur to the trial court
(one year, four months and five days)
pursuant to section 583.340, subdivision (a), extending the five-year
deadline from March 7, 2010 (five years after filing the complaint) to July 12,
2011—still less than the time calculated under the three-year statute.

The
only remaining question is whether there was any applicable extension, excuse
or exception that justified Zack’s failure to bring the remanded case to trial
by October 17, 2011. (§ 583.360, subd. (b).)

Zack’s
asserts that the time for bringing the matter to trial was extended by the
provisions of section 583.340, subdivision (c), which provides, in relevant
part, “In computing the time within which an action must be brought to trial
pursuant to this article, there shall be excluded the time during which any of
the following conditions existed: . . . [¶] (c) Bringing
the action to trial, for any other reason, was impossible, impracticable, or
futile.” (We shall use the term
“impossible” to cover all three excuses.)

On
appeal, Zack’s contends for the first time that during the periods defendants’
six summary judgment and summary judgment/summary adjudication motions were
pending (whether before the appeal or after filing of the remittitur), it was
legally impossible for Zack’s to bring the action to trial.

Alternatively,
Zack’s contends for the first time that the court erred in failing to begin
statutory tolling from the date of filing of each summary judgment motion and
the date argumentative papers supporting each motion were filed >or the date each motion was submitted >or the date of any hearing on the motion. He argues that some or all of these three
occasions marked the “commencement of trial” and time should be excluded from
that point until judgment was rendered on the particular summary
judgment/adjudication.

Zack’s
further contends, that the trial court erred in failing to exclude the period
of time between the entry of judgment
in favor of City on its motion for summary judgment and the date of Zack’s
notice of appeal from the calculation of the five-year period.

The
only claim relating to tolling and the summary judgment motions that was even
arguably raised in the trial court was this last—that in addition to the time
the matter was pending on appeal, the trial court should have excluded the time
between entry of judgment in favor of
City on the summary judgment motion and the date of Zack’s notice of
appeal. Zack’s never argued below that
any motion for summary judgment tolled the statute, except for a brief claim in
the “facts” section of its points and authorities in opposition to the City’s
motion for dismissal, as follows: “>After the summary judgment motion was
granted, the parties had no further ability to prosecute the case in the
trial court, and the trial court had no further authority to prosecute the case
after judgment was entered. Therefore,
the court should include in the tolling calculation the period between November 20, 2006 (the date summary
judgment was entered) and October 17, 2008 (the date the
remittitur was filed). This period
should not count when calculating the five-year statute. That means, at the outset, one year, eleven
months and twenty-eight days should be subtracted from calculating the
five-year prosecution statute. If that
period is subtracted, the five years would not run until March of 2012.” (Italics added.)

Zack’s
mistakenly identified the date summary judgment was “entered” as November 20,
2006, when in fact summary judgment was entered
on April 13, 2007. Zack’s never
referenced this assertion or made any other assertion relating to the summary
judgment motions in the “argument” section of its points and authorities. Rather, Zack’s correctly asserted that the
five-year statute was tolled from the filing of the notice of appeal (June 12,
2007) to the date the remittitur was filed (October 17, 2008).

Zack’s
argued below that the matter was tolled for two additional periods it does not
raise on appeal: five months during which the corporation was suspended and
7.86 months when Zack’s had no legal counsel and could not prosecute the case,
for a total of 12.86 months tolling in addition to the time the matter was on
appeal.href="#_ftn5" name="_ftnref5" title="">[5] In its reply below, City pointed out that its
summary judgment motion was not decided
on November 20, 2006, but
on March 1, 2007. City also pointed out that even if the
five-year period were tolled from March
1, 2007 to October 17,
2008 (extending the five-year period for 1 year, 7 months, and 16
days to October 23, 2011),
Zach’s still had not brought the case to trial by the statutory deadline. Zack’s did not respond to this point, either
in writing or at hearing on the motion, apparently conceding its mistake.

It
appears the trial court did not view Zack’s as arguing that the tolling period
included periods during which summary judgment motions were pending, as such
were never mentioned in the court’s opinion.
That opinion focused on the claims Zack’s made in the trial court that
the statutory period was tolled under section 583.340, subdivision (c) for the
period of its corporate suspension and for the periods during which it was
without counsel. The court properly
rejected both.href="#_ftn6" name="_ftnref6"
title="">[6] On this appeal, Zack’s neither reasserts the
arguments it made to the trial court nor contends the court erred in rejecting
its claims that prosecution of the action was impossible pursuant to section
583.340, subdivision (c) during those periods it was suspended or without
counsel.

Even
assuming Zack’s had adequately raised in the trial court the claim that the
statute was tolled from the March 1,
2007, determination of summary judgment or the April 13, 2007, entry of
judgment on the summary judgment motion and that we determined it had merit
(which we do nothref="#_ftn7" name="_ftnref7"
title="">[7]),
the exclusion of time between April 13, 2007, when the court entered judgment
dismissing the action following the grant of summary judgment and June 12,
2007, the date plaintiff filed its notice of appeal, would add only an extra 60
days, extending the time period within which the matter must be brought to
trial to September 12, 2011—more than one month before the dismissal motion and more than two months before the court
dismissed the matter for failure to bring it to trial. Similarly, were the time period extended
from March 1, 2007, the date the summary judgment motion was sustained, rather
than the date judgment was entered, the statute would have run on October 23,
2011—nearly a month before the court dismissed the case.

As
for Zack’s broader claims that some or all periods from the filing of the
various summary judgment motions to the determination of or entry of judgment
on those motions should be excluded,
these claims were not even arguably raised below and they are forfeited
here. (Perez, supra, 169 Cal.App.4th at pp. 591-592.)

In
Perez, supra, 169 Cal.App.4th 580>, the Court of Appeal found plaintiff
had forfeited arguments that certain periods when plaintiff (who was also
co-counsel) was unavailable should have been excluded from the time calculation
under the impossibility exception where these arguments were raised for the
first time on appeal. According to >Perez, “[T]his argument was not
presented to the trial court. ‘[I]t is fundamental that a
reviewing court will ordinarily not consider claims made for the first time on
appeal which could have been but were not presented to the trial court.
[Citation.]’ [Citations]: ‘Appellate courts are loath to reverse a
judgment on grounds that the opposing party did not have an opportunity to
argue and the trial court did not have an opportunity to consider.’) We will therefore ‘ignore arguments,
authority, and facts not presented and litigated in the trial court.’ [Citation.]
Such arguments raised for the first time on appeal are generally deemed
forfeited. [Citation.]” (Id.
at pp. 591-592.)

The >Perez court found forfeiture
“particularly appropriate” where, as in this case, review was to be conducted
under the abuse of discretion standard.
“Since, we review a trial court’s decisions concerning the applicability
of the impossibility exception for abuse of discretion (Sanchez v. City of Los Angeles [(2003)] 109 Cal.App.4th [1262,]
1271), it would indeed be peculiar for us to determine here that the court
abused discretion it was never given an opportunity to exercise.” (Perez,
supra, 169 Cal.App.4th at p. 592.)

Zack’s
attempts to skirt application of the forfeiture doctrine by maintaining that
the issue is a question of law, on undisputed facts. We disagree.

Our
California Supreme Court recently reiterated the centrality of the exercise of
trial court discretion to the “fact specific” inquiries required to determine
the applicability of the impossibility exception. In Bruns
v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, the court
observed: “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.’ (Moran
v. Superior Court (1983) 35 Cal.3d 229, 238; see also Tamburina[, supra,] 147
Cal.App.4th [at p.] 326 [trial court must determine whether plaintiff has shown
a circumstance of impossibility, impracticability, or futility, a causal
connection to the failure to move the case to trial, and that he or she was
‘reasonably diligent in prosecuting the case at all stages of the
proceedings’].) 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.
[Citation.] ‘ “[E]very
period of time during which the plaintiff does not have it within his power to
bring the case to trial is not to be excluded in making the computation.” [Citation.]’
(Sierra Nevada Memorial-Miners
Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 472.) ‘Time consumed by the delay caused by
ordinary incidents of proceedings, like disposition of demurrer, amendment of
pleadings, and the normal time of waiting for a place on the court’s calendar
are not within the contemplation of these exceptions.’ [Citation.]
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.’ (>Howard v. Thrifty Drug & Discount Stores
(1995) 10 Cal.4th 424, 438.)
‘ “[I]mpracticability and futility” involve a determination of “ ‘>excessive and unreasonable difficulty or
expense, ’ ” in light of all the circumstances of the particular case.’ [Citation.]

“The
question of impossibility, impracticability, or futility is best resolved by the
trial court, which ‘is in the most advantageous position to evaluate these
diverse factual matters in the first instance.’
[Citation.] The plaintiff bears
the burden of proving that the circumstances warrant application of the section
583.340(c) exception. (>Perez[, supra,] 169 Cal.App.4th at p. 590.) ‘ “The ‘reasonable diligence’ standard
is an appropriate guideline for evaluating whether it was impossible,
impracticable, or futile for the plaintiff to comply with [the statutory
five-year constraint] due to causes beyond his or her control.” ’ (Wilshire
Bundy Corp. v. Auerbach[, supra,]
228 Cal.App.3d at pp. 1287-1288.) The
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 discretion. (>Perez, at pp. 590-591; [citation].) Although ‘ “ ‘ “part of the
five-year period must necessarily be consumed in service of process,
disposition of demurrers, amendment of the pleadings, if necessary, usual and
reasonable time consumed in waiting for a place on the court’s calendar or in
securing the attendance of a jury and suchlike usual and necessary
proceedings; . . . the section does not contemplate that time
consumed in such ordinary proceedings are to be excluded from a computation of
the five-year period.” ’ ” ’
(Sierra Nevada Memorial-Miners
Hospital, Inc. v. Superior Court, supra, 217 Cal.App.3d 464, 472;
[citation].)” (Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th> at pp. 730-732.)

In
the main, determination of summary judgment or summary judgment/summary
adjudication motions are “ ‘ordinary incidents of
proceedings,’ ” (>Bruns v. E-Commerce Exchange, Inc., supra, 51
Cal.4th at p. 731), similar to the disposition of demurrers. It may be that a plaintiff may prove that in
a particular case a pending summary judgment presented exceptional or unusual
circumstances warranting court consideration of whether the section 583.340,
subdivision (c) impossibility exception should apply. In such circumstances, the court would
determine whether the plaintiff had shown a circumstance of impossibility has
arisen that has a “causal connection” to plaintiff’s failure to move the case
to trial and whether plaintiff was reasonably diligent in prosecuting the case
at all stages of the proceedings. (>Tamburina, supra, 147 Cal.App.4th at p.
328.) Each of those subsidiary
determinations, like the ultimate determination whether the impossibility
exception applies, requires the exercise of discretion by the trial court. The court here was not presented with the
proffered exceptions that Zack posits on this appeal. Further, the court did find that Zack’s was
not “reasonably diligent in prosecuting the case at all stages of the
proceedings[.]” (Id. at p. 326.) We cannot
find the court abused its discretion in granting the dismissal motion.

We
conclude that Zack’s has forfeited its argument that the statute was tolled
during periods where the motions for summary judgment or summary
judgment/summary adjudication were pending.

The
judgment dismissing the action is affirmed.
City shall recover its costs on this appeal.

















_________________________

Kline,
P.J.





We concur:





_________________________

Lambden, J.





_________________________

Richman, J.