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Shtofman v. Mercedes-Benz

Shtofman v. Mercedes-Benz
03:09:2013






Shtofman v








Shtofman v. Mercedes-Benz





















Filed 2/27/13 Shtofman v. Mercedes-Benz CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




>






ROBERT SCOTT SHTOFMAN,



Plaintiff and Appellant,



v.



MERCEDES-BENZ OF NORTH AMERICA,
INC. et al.,



Defendants and Respondents.




B238274



(Los Angeles
County

Super. Ct.
No. BC320356)








APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Ramona
G. See, Judge. Reversed.



Robert Scott Shtofman, in pro. per.,
for Plaintiff and Appellant.



Veatch Carlson, Cyril Czajkowskyj
and David Ryan for Defendants and Respondents.



______________________________________



We reverse
a judgment of dismissal under Code of
Civil Procedure section 583.310 for failure to bring the action to trial within
five years.href="#_ftn1" name="_ftnref1"
title="">[1]


FACTS

name="sp_999_1">In
January 1997, Robert Shtofman, a lawyer, purchased a new Mercedes-Benz S420
from Calstar Motors, Inc. (a Mercedes-Benz dealership) for roughly
$78,000. In August 2004, after
Shtofman had driven his S420 for more than 132,000 miles, he sued Mercedes-Benz USA, LLC, Calstar,
and Decio Atkinson, a worker in Calstar’s service department. Shtofman’s complaint alleged five causes
of action, listed respectively: breach of contract (against Calstar) for
failing to repair problems with his vehicle as promised; breach of warranty
(against Calstar and Mercedes-Benz); fraud (against all defendants) based upon
alleged misrepresentations about the nature of the problems with the vehicle;
negligent repair (against all defendants); and negligent hiring and training of
service employees (against Calstar).
Shtofman’s complaint prayed for compensatory
damages, emotional distress damages, and punitive damages.

In late 2005,
Mercedes-Benz, Calstar and Atkinson filed three separate motions for summary
judgment or, in the alternative, summary adjudication of issues (MSAI) of each
of Shtofman’s causes of action. At the
same time, Shtofman filed a MSAI on his cause of action for breach of warranty
against Calstar and Mercedes-Benz. The
parties argued the motions to the trial court and the court took the matters
under submission. In March 2006,
the trial court signed and entered a formal order granting Shtofman’s MSAI of
his cause of action for breach of warranty
against Calstar and Mercedes-Benz, and denying the motions filed by
Mercedes-Benz, Calstar and Atkinson.

name="sp_999_2">After the trial court entered
the MSAI order on Shtofman’s breach of warranty cause against Calstar and
Mercedes-Benz, Shtofman agreed to dismiss his remaining causes of action, and
requested judgment be entered in his favor based on the MSAI order. Shtofman also filed a motion for attorney
fees, which the trial court granted.
In October 2006, the court signed and entered a final
judgment which provided that Shtofman was to recover $87,246.63 in compensatory
damages, plus attorney fees in the amount of $136,800, with the total award
payable by Mercedes-Benz and Calstar, jointly and severally.href="#_ftn2" name="_ftnref2" title="">[2] The judgment ordered Shtofman to return his
S420 to Calstar, and to execute all documents necessary to transfer title and
ownership of the vehicle to Mercedes-Benz.

name="SDU_3">On a
prior appeal, we reversed the judgment.
(See Shtofman v. Mercedes-Benz of
North America, Inc. (Aug. 29, 2008, B195677)
[nonpub. opn.].) We remanded the case to
the trial court with directions to enter a new and different order denying
Shtofman’s MSAI of his breach of warranty cause of action against Calstar and
Mercedes-Benz, and to enter a different order granting Mercedes-Benz’s MSAI of
the same, and Calstar’s MSAI of the same.
Further, because Shtofman had dismissed his remaining causes of action
in reliance on the MSAI orders vacated, we also directed the trial court to
relieve Shtofman from his dismissal of those causes of action. The clerk of our court issued the remittitur
on November 24, 2008; the clerk of
the superior court filed the remittitur on November
26, 2008.

On August 25, 2009, the trial
court granted a motion for summary judgment filed by Mercedes-Benz. At a status conference in February 2011, the
court set the cause for trial on September 19,
2011. The parties at the status
conference were Shtofman, Calstar and Atkinson.


On August 25, 2011, Calstar and
Atkinson filed a document entitled “motion in limine” in which they argued that
Shtofman’s action was subject to mandatory dismissal pursuant to section
583.310 for failure to bring it to trial within five years. At a hearing on September 21, 2011, the trial court ruled that it was
granting Calstar and Atkinson’s motion to dismiss. On November
2, 2011, the trial court entered a judgment of dismissal in favor of
Calstar and Atkinson, and, on November 21,
2011, Calstar and Atkinson served notice of entry of the judgment of
dismissal.

On January 3, 2012, Shtofman filed
a notice of appeal from the judgment of dismissal as to Calstar and
Atkinson.

DISCUSSION

I. The Motion in Limine

Shtofman contends
the judgment of dismissal must be reversed because a “motion in limine” is an
improper procedural avenue for presenting a motion to dismiss an action for
failure to bring it to trial within the time prescribed by statute. We disagree.

It is the
substance of a motion, not its label, name="SR;1535">that determines whether the relief it requests is available
and proper. For this reason, a trial
court is free to treat a motion for what it is substantively, regardless of its
label. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187,
193.) Here, the motion filed by Calstar
and Atkinson expressly sought dismissal of Shtofman’s action under the
five-year trial statute. That Calstar
and Atkinson typed the words “motion in limine” on their papers does not mean
the trial court was barred from granting the relief requested, or that the
court’s decision was error simply because of the “motion in limine” label. The motion filed by Calstar and Atkinson put
Shtofman on notice of the dismissal issue he needed to address, and he has not
argued any due process issue. Shtofman’s
reliance on cases that have criticized the misuse of motions in limine to
obtain certain types of relief is not persuasive. (See, e.g., R & B Auto Center, Inc. v. Farmer’s Group, Inc. (2006) 140
Cal.App.4th 327, 372 (conc. opn. of Rylaarsdam, J.) [a motion in limine was,
“in effect, a motion for summary adjudication of issues”].) Calstar and Atkinson’s motion expressly
sought dismissal of Shtofman’s action under section 583.310 based upon a
showing that he failed to bring the action to trial within the five-year period
prescribed by the statute.
The motion did not seek relief hidden under the guise of a motion
in limine.

II. The Judgment of Dismissal

Shtofman contends the trial court
erroneously computed the time within which he was required to bring his case to
trial, and thus erred by dismissing his action.
Although we do not wholly agree with his analysis, we agree that the
dismissal must be reversed.

The
Mandatory Dismissal Statutes

Code of Civil
Procedure, part 2, title 8, chapter 1.5 (§ 583.110 et seq.) governs the
dismissal of an action for delay in prosecution. Article 3 of chapter 1.5 –– encompassing
section 583.310 et seq. –– governs the “Mandatory Time for Bringing an Action
to Trial or New Trial.” Under section 583.360, subdivision
(a): “An 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.” (Italics added.) Under section 583.360, subdivision (b): “The requirements of this article are
mandatory and are not subject to extension, excuse, or exception except as
expressly provided by statute.”

A. Five-Year Dismissal From the Commencement of
an Action

Section 583.310 provides: “An action shall be brought to trial within
five years after the action is commenced against the defendant.” 
               Section 583.340 prescribes how to measure the five-year period within which a plaintiff must bring an action to trial as prescribed in section 583.310.  Section 583.340 reads:  “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 [such as by an appeal].  [¶]  (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.”


Shtofman commenced his action
against Calstar and Atkinson in August 2004.
So, if section 583.310 is applied on its own, this means that Shtofman
had to bring his action against CalStar and Atkinson to trial by August 2009. But section 583.310 cannot be applied on its
own to Shtofman’s action because an intervening event beyond the mere passage
of time –– i.e., the prior appeal –– is involved. Shtofman’s action was on appeal from December
8, 2006 (the date of his notice of appeal) to November 26, 2008 (the date the
clerk of the trial court filed our remittitur), a period of two years
(rounded). Applying the computation
method prescribed by section 583.340, subdivision (a), to determine the
five-year period under section 583.310, means that Shtofman had to bring his
action to trial by August 2011.href="#_ftn3"
name="_ftnref3" title="">[3]


The trial court dismissed Shtofman’s
action as against Calstar and Atkinson in September 2011.

B. Three Year Dismissal From an Order for New
Trial

Section 583.320 prescribes the
mandatory time for a “new trial.”
Section 583.320, subdivision (a)(3),href="#_ftn4" name="_ftnref4" title="">>[4]
provides: “(a) If a new trial is granted
in the action[,] the action shall again be brought to trial with the following
times: . . . [¶] (3) If on
appeal . . . a judgment is reversed and the action remanded
for a new trial, within three years after the remittitur is filed by the clerk
of the trial court.”href="#_ftn5"
name="_ftnref5" title="">[5]


So, if section 583.320 applies, then
Shtofman had to bring his action to trial by late November 2011, the remittitur
issued in the prior appeal having been filed by the clerk of the trial court in
late November 2008.

The trial court dismissed Shtofman’s
action as against Calstar and Atkinson in September 2011. 
>Analysis –– Whether Section 583.310 or 583.320 Governs


The trial court
dismissed Shtofman’s action pursuant to the five-year time for trial prescribed
by section 583.310. The court computed
the five-year time starting from the filing of Shoftman’s action, and excluding
the time during which the action was on appeal pursuant to section
583.340. If the trial court properly applied
the five-year time for trial under section 583.310, as measured under section
583.340, then the dismissal was proper because the five-year deadline date
expired in August 2011, and the court did not dismiss Shtofman’s action until
September 2011.

Shtofman contends
the trial court should have determined the dismissal issue under the time rules
for a “new trial” pursuant to section 583.320, measured from the filing of the
remittitur issued in the prior appeal in the trial court, with a three-year period
for a “new trial.” Shtofman essentially
argues that if an appeal is started on the fifth-year anniversary of the filing
of an action, minus one day, then a plaintiff is given a full three-year period
after the filing of the remittitur issued in the appeal in the trial court to
bring his or her case to a new trial.
Stated in other words, Shtofman argues the five-year time for bringing
an action to trial should not necessarily be the focus when there is an appeal in
an action. Instead, the three-year time
for a new trial governs. Although we
only partly agree with Shtofman’s proffered statutory construction, we agree
the judgment of dismissal should be reversed. 
        In Shtofman’s current action, Calstar and Mercedes-Benz filed an appeal in December 2006, challenging the judgment in favor of Shtofman after the order granting MSAI of his breach of warranty cause of action, and dismissal of his remaining causes of action, and, finally, entry of judgment in October 2006.  The appeal suspended the trial court’s jurisdiction.  On November 24, 2008, our court issued the remittitur, restoring the trial court’s jurisdiction.  On November 26, 2008, the clerk of the superior court filed the remittitur.  The period during which the jurisdiction of the trial court to try the action was suspended under section 583.340, subdivision (a), therefore, approximately measured two years.  If sections 583.310 and 583.340 control, Shtofman should have brought his action to trial by August 2011.
> We conclude the appeal, remittitur and “new trial” trigger should be applied to Shtofman’s current action, meaning that he should have been granted three years from the date of the filing of the remittitur after the prior appeal to start a new trial as prescribed in section 583.320, subdivision (a)(3). Accordingly, Shtofman should have been given until late November 2011 to start a new trial, which means his action should not have been dismissed in September 2011.

Section 583.320 applies when a “new
trial” has been granted in an action, the plain implication being that section
583.320 does not apply when there has been no first “trial” in the action We find there was first trial in Shtofman’s
action. By a unique, one might say
convoluted path, Shtofman ended up with a $200,000 judgment in his favor, based
on a substantive adjudication of the merits of at least one of the claims
alleged in his complaint. If the
judgment was not obtained by a “trial,” we are at a loss to explain how
Shtofman prevailed.

The published cases do not directly
address the procedural path in Shtofman’s current case, but teach that a
hearing which addresses and adjudicates substantive legal or factual issues in
an action is a “trial” for purposes of the “new trial” time rules set forth in
section 583.320. (See, e.g., >McDonough Power Equipment Co. v. Superior
Court (1972) 8 Cal.3d 527, 530-534 (McDonough)
[addressing section 583, the precursor to section 583.320].) In the cases, hearings and rulings in favor
of a defendant on a demurrer, or motion for judgment on the pleadings, or
motion for summary judgment, when followed by a judgment of dismissal, have
been determined to be a “trial” for purpose of the “new trial” time rules in
section 583.320. (See, e.g., >Berri v. Superior Court (1985) 43 Cal.2d
856, 859; Smith v. City of Los Angeles
(1948) 84 Cal.App.2d 297, 301-302.) In
those circumstances, when a judgment has been reversed on appeal, the plaintiff
has been granted the three year period for a “new trial” under section 583.320. In Shtofman’s current case, the situation is
different because a hearing and ruling on a MSAI was made in favor of a
plaintiff on only part of his case.
Ordinarily, that would not have been a “trial” because the action would
not have been finally concluded. In our
view, however, when Shtofman dismissed his other causes of action and accepted
a favorable final judgment based on a single cause of action, his case became
placed in a procedural posture of having been resolved by a “trial.” 
               As the Supreme Court explained in >McDonough in addressing the three-year time for a new trial after an appeal”  “[S]ection 656, which is found within title 8 of part 2 of the [Code of Civil Procedure] (‘Of the Trial and Judgment in Civil Actions’), does not provide an exclusive definition of ‘trial’ or ‘new trial, nor does it establish an identity of meaning between the term ‘trial’ as used in section 656 and as used in [the] section [governing a new trial after an appeal].  On the contrary, in defining ‘trial’ we have said ‘that it is the determination of an issue of law or fact’ [citation] or ‘the examination . . . of the facts or law put in issue in a cause . . . .’  [Citations.]”  (>McDonough, supra, 8 Cal.3d at pp. 530-533.)
> In >McDonough, a trial court sustained a defendant’s demurrer in a personal injury action, and entered a href="http://www.mcmillanlaw.com/">judgment of dismissal. An appellate court reversed the ruling on the demurrer. The action was not brought to a trial within three years after the remittitur. The Supreme Court issued a writ of mandate to compel the trial court to dismiss the action for failure to bring it to trial within three years after the filing of the remittitur as stated in former section 583, even though the five-year period for bringing the action to trial under former section 583 had not yet expired. In short, the Supreme Court ruled in >McDonough that a ruling on a demurrer constituted a “trial,” and that the three-year trial period measured after the filing of the remittitur controlled over the five-year trial period measured after the filing of the action. Under >McDonough, the time for mandatory dismissal is not necessarily a minimum of five years under section 583.310, as measured under 583.340. A result mirroring >McDonough is no longer available because the current version of section 583.320, subdivision (b), provides: “Nothing in this section requires that an action again be brought to trial before expiration of the [five-year] time prescribed in Section 583.310.” Nonetheless, >McDonough’s analysis of what constitutes a “trial” is still relevant –– it is a hearing and ruling that is determinative of an issue of law or fact put at issue in a cause. (McDonough, supra, 8 Cal.3d at pp. 530-533.) In our view, that is what we have in Shtofman’s current case in 2006, precipitating Calstar and Mercedes-Benz’s prior appeal.

Calstar and Atkinson’s reliance on >Lemaire, Faunce & Katznelson v. Cox
(1985) 171 Cal.App.3d 297 (Lemaire)
does not persuade us to find there was no “trial” in 2006 in Shtofman’s current
case. In Lemaire, a law firm filed a complaint against a client in September
1978 for unpaid legal fees, and the client immediately filed a cross-complaint
for legal malpractice. In September
1984, the law firm filed a MSAI which was granted in part and denied in
part. Eventually, the law firm dismissed
its complaint for unpaid fees. More than
five years after the complaint and cross-complaint were filed, the law firm
moved to dismiss the remaining cross-complaint for legal malpractice for
failure to bring it to trial within five years.
The trial court granted the motion.
Division Five of our court affirmed, rejecting the client’s argument
that “trial” had commenced in September 1984, when the law firm’s MSAI was
addressed. In concluding that a “trial”
had not been commenced in September 1984, Division Five ruled that a “trial”
meant a determination of an issue of law or fact which brings an action to a
stage where a final disposition can be made.
The MSAI involving the law firm did not satisfy such criteria because it
had not brought the action to a stage where a final disposition could be
accomplished. (Id. at pp. 300-302.)

In contrast to Lemaire, the MSAI orders in 2006 here, which precipitated the prior
appeal, did place Shtofman’s case into a stage where a final disposition could
be accomplished. To be more accurate,
the MSAI orders allowed for a final disposition by a final judgment in favor of
Shtofman once he agreed to dismiss his remaining causes of action, and take his
favorable $200,000 judgment. In essence,
it was not just the ruling on the MSAI issue but also the subsequent dismissal
allowing for entry of judgment that resulted in a “trial” in Shtofman’s action
in 2006. Regardless of the description
given, there was a “trial” in Shtofman’s action in 2006, and a judgment in his
favor based upon that trial, and an appeal.
Thus, when we reversed the judgment on the prior appeal, there was a
remand for a “new trial.” 
               This brings us to the final issue in the appeal before us today –– is the five-year period for bringing an action to trial under section 583.310, computed under 583.340, the >maximum time afforded to bring an action to trial.  If it is, then Shtofman’s time for trial expired in August 2011.  We find five years is not necessarily the maximum time given a plaintiff to bring an action to trial.  Under the plain language of section 583.320, and the published cases such as >McDonough, we reject the contention that upon reversal of the judgment and the remand of the action for further proceedings, the time for trial of the action was limited to a maximum of the five-year period prescribed by section 583.310.  We find the language of section 583.320 to be unambiguous, and to control.  There was a prior “trial” in Shtofman’s case because the hearing on the MSAIs addressed legal and factual issues involved in his case.  Upon dismissal of his remaining causes of action, the trial court entered a final judgment.  Thus, after reversal on appeal and the filing of the remittitur, Shtofman had three years to bring his action to trial under section 583.320.
> Reading all of the dismissal statutes together, and giving effect to all of them (>Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090), we see three principles at play. First, if there is no appeal in an action, the time for trial is governed by the five-year term prescribed by section 583.310, computed under section 583.340. Second, if there is an appeal in action, but not after a “trial,” then the time for trial is still governed by the five-year term prescribed by section 583.310, computed under section 583.340. Finally, if there is an appeal in action after a “trial,” then section 583.320 applies, and the three-year period measured from the filing of the remittitur controls.href="#_ftn6" name="_ftnref6" title="">[6]

>III. The
Estoppel Issue

Because we have
found section 583.320 applied, and Shtofman’s action should not have been
dismissed under section 583.310, we do not address his argument that estoppel
should have barred Calstar and Atkinson from seeking dismissal for delay in
prosecution of the action.

DISPOSITION

The order and
judgment of dismissal entered on November 2, 2011 is reversed. Each party to bear its own costs on appeal.





BIGELOW,
P. J.



We concur:





RUBIN, J.





FLIER, J.






id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">>[1]> All further section references are to
the Code of Civil Procedure.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">>[2]> The
judgment was silent concerning the basis for liability as against Calstar and
Mercedes-Benz; the judgment was silent as to Atkinson.

id=ftn3>

href="#_ftnref3" name="_ftn3" title="">>[3] Shtofman’s
opening brief on appeal argues he was very busy professionally, and that the
five-year deadline date for trial was extended for that reason. He cites no legal authority supporting the
proposition that a party’s busy work schedule, even where the party is a
lawyer, excuses compliance with the statutes governing the time for bringing an
action to trial. It is appropriate, of
course, for a trial court, or a party or a lawyer to agree to continue a >trial date – within the five-year period
for bringing an action to trial – as a matter of professional or common
courtesy, but the five-year deadline date itself is “not subject to extension,
excuse, or exception except as expressly provided by statute.” (See § 583.360, subd. (b).)



id=ftn4>

href="#_ftnref4" name="_ftn4" title="">>[4]> Section 583.320, subdivisions (a)(1) and
(a)(2), prescribe the mandatory time for bringing an action to trial after a
mistrial or order granting a motion for new trial. These rules are not implicated in Shtofman’s
current case.



id=ftn5>

href="#_ftnref5" name="_ftn5" title="">>[5] Section
583.320, subdivision (b), provides:
“Nothing in this section requires that an action again be brought to
trial before expiration of the [five-year] time prescribed in Section
583.310.” So, section 583.320 may not be
applied to shorten the five-year time
prescribed in section 583.310 for bringing an action to trial. The issue in the current case, paraphrased,
is whether section 583.320 may be applied to trump and, in effect, >lengthen the five-year time for trial
under 583.310.

id=ftn6>

href="#_ftnref6" name="_ftn6" title="">>[6]> In
Shtofman’s current case, the hearing and ruling on Calstar and Atkinson’s
motion to dismiss for delay in prosecution was not a “trial” because it did not
result from a determination of any legal or factual issues involved in his
claims. So, Shtofman does not get
another three years after the filing of the remittitur in this appeal to get
his action to trial.








Description In January 1997, Robert Shtofman, a lawyer, purchased a new Mercedes-Benz S420 from Calstar Motors, Inc. (a Mercedes-Benz dealership) for roughly $78,000. In August 2004, after Shtofman had driven his S420 for more than 132,000 miles, he sued Mercedes-Benz USA, LLC, Calstar, and Decio Atkinson, a worker in Calstar’s service department. Shtofman’s complaint alleged five causes of action, listed respectively: breach of contract (against Calstar) for failing to repair problems with his vehicle as promised; breach of warranty (against Calstar and Mercedes-Benz); fraud (against all defendants) based upon alleged misrepresentations about the nature of the problems with the vehicle; negligent repair (against all defendants); and negligent hiring and training of service employees (against Calstar). Shtofman’s complaint prayed for compensatory damages, emotional distress damages, and punitive damages.
In late 2005, Mercedes-Benz, Calstar and Atkinson filed three separate motions for summary judgment or, in the alternative, summary adjudication of issues (MSAI) of each of Shtofman’s causes of action. At the same time, Shtofman filed a MSAI on his cause of action for breach of warranty against Calstar and Mercedes-Benz. The parties argued the motions to the trial court and the court took the matters under submission. In March 2006, the trial court signed and entered a formal order granting Shtofman’s MSAI of his cause of action for breach of warranty against Calstar and Mercedes-Benz, and denying the motions filed by Mercedes-Benz, Calstar and Atkinson.
After the trial court entered the MSAI order on Shtofman’s breach of warranty cause against Calstar and Mercedes-Benz, Shtofman agreed to dismiss his remaining causes of action, and requested judgment be entered in his favor based on the MSAI order. Shtofman also filed a motion for attorney fees, which the trial court granted. In October 2006, the court signed and entered a final judgment which provided that Shtofman was to recover $87,246.63 in compensatory damages, plus attorney fees in the amount of $136,800, with the total award payable by Mercedes-Benz and Calstar, jointly and severally.[2] The judgment ordered Shtofman to return his S420 to Calstar, and to execute all documents necessary to transfer title and ownership of the vehicle to Mercedes-Benz.
On a prior appeal, we reversed the judgment. (See Shtofman v. Mercedes-Benz of North America, Inc. (Aug. 29, 2008, B195677) [nonpub. opn.].) We remanded the case to the trial court with directions to enter a new and different order denying Shtofman’s MSAI of his breach of warranty cause of action against Calstar and Mercedes-Benz, and to enter a different order granting Mercedes-Benz’s MSAI of the same, and Calstar’s MSAI of the same. Further, because Shtofman had dismissed his remaining causes of action in reliance on the MSAI orders vacated, we also directed the trial court to relieve Shtofman from his dismissal of those causes of action. The clerk of our court issued the remittitur on November 24, 2008; the clerk of the superior court filed the remittitur on November 26, 2008.
On August 25, 2009, the trial court granted a motion for summary judgment filed by Mercedes-Benz. At a status conference in February 2011, the court set the cause for trial on September 19, 2011. The parties at the status conference were Shtofman, Calstar and Atkinson.
On August 25, 2011, Calstar and Atkinson filed a document entitled “motion in limine” in which they argued that Shtofman’s action was subject to mandatory dismissal pursuant to section 583.310 for failure to bring it to trial within five years. At a hearing on September 21, 2011, the trial court ruled that it was granting Calstar and Atkinson’s motion to dismiss. On November 2, 2011, the trial court entered a judgment of dismissal in favor of Calstar and Atkinson, and, on November 21, 2011, Calstar and Atkinson served notice of entry of the judgment of dismissal.
On January 3, 2012, Shtofman filed a notice of appeal from the judgment of dismissal as to Calstar and Atkinson.
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