Greenway v. Kent
Filed 2/13/13
Greenway v. Kent CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
APPELLATE DISTRICT
TWO
KURT GREENWAY,
Plaintiff and Appellant,
v.
ROBERT KENT,
Defendant and Respondent.
E054828
(Super.Ct.No. BBCHS00948)
OPINION
APPEAL from the Superior
Court of San
Bernardino County. Marsha Slough,
Judge. Affirmed.
Law Offices of Peter H.
Bonis, Peter H. Bonis; Benedon & Serlin, Douglas G. Benedon and Gerald M.
Serlin for Plaintiff and Appellant.
Lewis Brisbois Bisgaard
& Smith and John S. Lowenthal for Defendant and Respondent.
I
INTRODUCTION
Plaintiff Kurt
Greenway appeals from a judgment dismissing his action against defendant Robert
Kent for failure to bring the action to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.)
its discretion in determining that plaintiff had not exercised “reasonable
diligence†to bring his case to trial within the statutory period.
We conclude the trial court
did not abuse its discretion in dismissing the case based on plaintiff’s
failure to bring the case within five years.
We affirm the judgment of dismissal.
II
FACTS AND PROCEDURAL
BACKGROUND
On April 7, 2006, plaintiff
filed an action against defendant for battery
and negligence in San Bernardino Superior Court, Big Bear District.
Plaintiff alleges that,
during a weekend trip on April 16-17, 2004, defendant consumed an entire bottle
of bourbon, grabbed him in a headlock, ran him head first into a wall, and then
threw him to the floor and encouraged everyone in the room to join him in
“piling on†plaintiff. As a result,
plaintiff, a dentist practicing in Riverside County, claims he suffered severe
damages. Defendant, an attorney licensed
in California, resides in New York.
After
defendant’s motion to strike was denied, defendant filed an answer to the
complaint denying all allegations.
Thereafter, a series of case
management conferences took place between October 2006 to May 2010, during
which discovery was ongoing. On November
18, 2008, defendant filed a motion to compel further responses by plaintiff to
special interrogatories, which was granted by the court on January 9, 2009.
Subsequently, defendant made
three separate motions requesting monetary
and terminating sanctions dismissing the entire action, or in the
alternative evidentiary sanctions, for plaintiff’s failure to comply with the
court’s motion to compel. The first
motion was filed on March 10, 2009, and the court granted monetary sanctions on
May 1, 2009, and ordered plaintiff to comply with the prior motion to compel. Defendant made a second motion requesting
monetary and terminating sanctions on June 17, 2009. The court again granted monetary sanctions on
July 31, 2009, and ordered plaintiff to comply with the prior motion to
compel. On February 11, 2010, the
defendant made a third motion, again requesting monetary and terminating
sanctions. On May 7, 2010, the court
granted defendant’s third motion; however, the court did not issue any monetary
sanctions this time, and only issued another order for plaintiff to comply with
the prior motion to compel.
Also on May 7, 2010, the
presiding judge at the sanctions hearing, Judge Gilbert Ochoa, set the trial
for October 11, 2011, six months after the expiration of the five-year
statutory period.
In the declaration in
opposition to defendant’s motion to dismiss, plaintiff claims that during the
unreported chambers conference held on that day, Judge Ochoa stated: “‘I am setting the matter for trial in
October of 2011 because that was the first trial date I have available and I
have no earlier dates available. I could
not hear the case earlier even if I wanted to.’†During oral argument before the trial court
regarding the dismissal, plaintiff claimed that Judge Ochoa knew he was setting
the trial date beyond the statutory period.
On January 6, 2011, the case
was reassigned to the Victorville branch of the San Bernardino Superior Court
and to Judge Marsha G. Slough.
On May 19, 2011, defendant
filed a motion to dismiss plaintiff’s complaint for failure to prosecute the
case within five years. Plaintiff
opposed the motion, arguing that there was a five-month period where the court
did not have jurisdiction over the out-of-state defendant and court congestion
made it impractical and impossible to bring the case to trial for the first
four years. On July 21, 2011, the court
heard and granted defendant’s motion to dismiss, finding that plaintiff did not
take affirmative action to demonstrate an effort to bring the matter timely to
trial.
Plaintiff filed a notice of
appeal on October 21, 2011.
III
DISCUSSION
A. General Principles
1. Five-Year Dismissal
Statute
Under section 583.310, “[a]n
action shall be brought to trial within five years after the action is
commenced against the defendant.â€
Section 583.360 goes on to state that “(a) [a]n action shall be
dismissed by the court on its own motion or on motion of the defendant, after
notice to the parties, if the action is not brought to trial within the time
prescribed in this article. [¶] (b) The requirements of this article are
mandatory and are not subject to extension, excuse, or exception except as
expressly provided by statute.â€
Section 583.340 provides for
excuses or extensions of the five-year period, stating: “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: [¶]
(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.†(Italics added.) Plaintiff’s argument on appeal for dismissal
of the trial court’s judgment rests on section 583.340, subdivision (c).
2. “Reasonable Diligence†Required for the
Impracticability Exception to Apply
Under
section 583.340, subdivision (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.] (Italics added.)†(Bruns
v. E-Commerce Exchange, Inc.
(2011) 51 Cal.4th 717, 731.) What is
impossible, impracticable, or futile is determined in light of all the
circumstances of a case, and must be liberally construed, consistent with the
policy favoring trial on the merits. (
109 Cal.App.4th 1262, 1270.) The
plaintiff has the burden to: (1) prove a
circumstance of impracticability; (2) demonstrate a causal connection between
that circumstance and failure to move the case to trial; and also (3)
diligence’ in prosecuting [his or her]
(Tamburina v. Combined Ins. Co. of
America (2007) 147 Cal.App.4th 323, 336.)
B. Standard of Review –
Abuse of Discretion
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.]†(
59, 71.) Reversible abuse of discretion
“exists only if there is no reasonable basis for the trial court’s action, so
that the trial court’s decision exceeds the bounds of reason. [Citations.]â€
(Sanchez v. City of Los Angeles,
supra, 109 Cal.App.4th at p. 1271.)
Thus, the issue before us is whether plaintiff has shown that there was
no reasonable basis for the trial court to dismiss the action for failure to
bring the claim within the statutory period.
C. Issues Raised by
Plaintiff on Appeal
Plaintiff raises three
contentions on appeal. First, he argues
that it was impossible and/or impracticable to bring the case to trial within
the five-year statutory period. Second,
plaintiff argues that he met his burden to show reasonable diligence in
qualifying for the extension under section 583.340, subdivision (c). Lastly, plaintiff asserts that the trial
court abused its discretion in determining that he did not meet his burden of
reasonable diligence because plaintiff did not file a motion specifically to
set the trial date.
D. Scope of Review is Limited to Reasonable
Diligence Analysis
Our review of the trial
court’s action focuses on whether there was sufficient basis for the trial
court to conclude that plaintiff failed to exercise reasonable diligence in
bringing the case to trial. Although
plaintiff makes additional arguments in his appeal, the issue of reasonable
diligence is dispositive of the other claims.
The trial court did not
delve in-depth into the first and second factors of the Tamburina analysis, which deal with whether there was proof of a
circumstance of impracticability, and whether there was a causal connection
between that impracticability and the delay in bringing the case to action
within the statutory period. The court’s
dismissal rested primarily on the third factor:
whether plaintiff proved that he had “exercised ‘reasonable diligence’
in prosecuting [his or her] case.†(
supra, 147 Cal.App.4th at p. 336.)
We assume that the trial court accepted plaintiff’s claim that there was
impracticability causally connected to the delay.
E. Motion to Specially Set
the Trial Date
Plaintiff argues that the
court abused its discretion by holding that he should have brought a motion to
specially set the case for trial before Judge Ochoa before the expiration of
the statutory period. In particular,
plaintiff emphasizes the trial court’s statement that in order for plaintiff to
show reasonable diligence and avoid dismissal, he would have had to bring a
motion to set his case specially for trial and let that motion be denied.
Plaintiff asserts that in a
chambers conference, Judge Ochoa stated in no uncertain terms that October 11,
2011, was the first date available on his schedule to try the case, and that he
could not hear it earlier if he wanted to.
Plaintiff claims that the trial court imposed a burden to bring a futile
and potentially frivolous motion, and this was an abuse of discretion.
The discussion with Judge
Ochoa regarding the scheduling of the trial date was held in chambers and the
appellate record contains no transcript of the conference. Thus, it is impossible for this reviewing
court to evaluate plaintiff’s claim. (
Cal.App.3d 56, 61.) Judge Slough held
that there was “absolutely no reason to dispute that that is exactly how [the
discussion regarding scheduling] came down.â€
We defer to the trial court’s holding that there is no reason to dispute
the contents of the in-chambers discussion with Judge Ochoa.
However, even accepting that
October 11, 2011, was the earliest date that Judge Ochoa could have heard the
case, plaintiff is not absolved of his duty to exercise reasonable
diligence. In Wales v. Rodriguez (1988) 206 Cal.App.3d 129, the plaintiff’s
attorney requested a trial date and was told no earlier date was
available. Subsequently, the plaintiff’s
attorney did nothing further to obtain a trial date within the statutory
period. The Wales court concluded that the plaintiff “was not entitled to
assume that a motion to specially set would have been futile. His failure to so move was fatal.†(Id. at
p. 133.) As in Wales, plaintiff is not entitled to assume that a motion to
specially set would have been ineffective.
Plaintiff argues that making
the motion after Judge Ochoa had specifically stated he could not hear the case
any earlier would have been unwise.
Plaintiff claims that imposing this burden would expose him to contempt
and sanctions. However, “counsel must
make his record for the Court of Appeal at the risk of a measure of annoyance
to the trial judge.†(
Cal.App.2d 248, 254.) As the trial court
held, making the motion would have shown an affirmative action by plaintiff on
the record demonstrating that plaintiff was trying to bring the matter to trial
within the statutory period.
F. Plaintiff Did Not Act
with Reasonable Diligence
The
level of diligence required of plaintiff increases as the five-year deadline
approaches. (Tamburina v. Combined Ins. Co. of America, supra, 147 Cal.App.4th
at p. 336.) Judge Ochoa set the trial
date at the hearing on May 7, 2010, 11 months before the five-year statutory
deadline. During the 11-month interim,
plaintiff did not make any effort to advance the trial date in compliance with
the statutory period. Plaintiff failed
to meet the heightened level of diligence required to bring the case to trial
prior to the expiration of the five-year deadline.
The Sanchez court held that, irrespective of the plaintiff’s acceptance
of the selected trial date, “there was still ample time after that conference
to bring a motion to advance the trial date.
Plaintiffs missed that opportunity as well. ‘“When a plaintiff possesses the means to
bring a matter to trial before the expiration of the five-year period by filing
a motion to specially set the matter for trial, plaintiff’s failure to bring
such motion will preclude a later claim of impossibility or
impracticability.†[Citation.]’ [Citation.]â€
(Sanchez v. City of Los Angeles,
supra, 109 Cal.App.4th at pp. 1273-1274.)
Plaintiff should still make a motion to ensure he is doing everything he
can to avoid dismissal. (
Home Sales, Inc. (1983) 143 Cal.App.3d 791, 795.)
We conclude that the trial
court did not abuse its discretion in dismissing plaintiff’s action for failure
to bring the claim within five years.
There was a reasonable basis for the trial court’s finding that
plaintiff failed to show that he acted with reasonable diligence in bringing
the case to trial as required under section 584.340, subdivision (c) to show
that it was “impossible, impracticable or futile.â€
IV
DISPOSITION
The
judgment is affirmed. Defendant and
respondent Robert Kent is awarded his costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
name="_ftn1" title=""> [1] Unless
otherwise noted, all statutory references are to the Code of Civil Procedure.
