Williams v. County of San Bernardino CA4/2 ( 2014 )

Filed 12/18/14 Williams v. County of San Bernardino CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
BARBARA ANN WILLIAMS et al.,
Plaintiffs and Appellants, E057635
v. (Super.Ct.No. CIVSS705974)
COUNTY OF SAN BERNARDINO et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed.
Law Offices of Rob Hennig, Rob Hennig and Brandon Ruiz for Plaintiffs and
Appellants.
Gutierrez, Preciado & House, Calvin House and Clifton A. Baker for Defendants
and Respondents.
Plaintiffs and appellants Barbara Ann Williams, Shelda Vinson, and Karen Branch
appeal from the judgment dismissing their action against defendants and respondents
County of San Bernardino (County) and Patricia Wilson based on plaintiffs’ failure to
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bring the action to trial within five years (Code Civ. Proc.,1 §§ 583.310 (five-year statute)
and 583.360). Plaintiffs contend the trial court applied the wrong standard in denying
their ex parte application to preferentially set the case for trial, abused its discretion in
dismissing the case in its entirety, and improperly heard and decided defendants’ motions
for partial summary judgment/adjudication. Rejecting these contentions, we affirm.
I. PROCEDURAL HISTORY2
This employment discrimination and wrongful termination action was initiated on
September 11, 2007, relating to plaintiffs’ employment at County. On February 13,
2009, plaintiffs added class action allegations. More than three years later, on April 5,
2012, defendants moved to strike the class action allegations. Thirteen days later, on
April 18, 2012, plaintiffs responded by moving to certify the class as to “[a]ll non-
[W]hite . . . [or alternatively, African-American] persons who are employed by or have
been employed by or who applied for employment with Defendant County . . . [or
alternatively, at Arrowhead Regional Medical Center] during the class period (August 25,
2005, to the present)” pursuant to Code of Civil Procedure section 382 and California
Rules of Court, rule 3.764. The court denied plaintiffs’ motion on May 25, 2012.
From February 2009 through May 2012, the court held at least three trial setting
conferences and at least six case management conferences. Plaintiffs never asked for a
trial date, nor did they take any further steps to manage the progress of their case to trial.
1 All further undesignated statutory references are to the Code of Civil Procedure.
2 The dispositive issue on appeal is the propriety of the dismissal of this action for
failure to bring the case to trial within five years. We will therefore limit our discussion
of the facts to those necessary to address this issue.
2
Rather, the record shows that on May 19, 2011, plaintiffs informed the court of their
intent “to file a motion for class certification and request additional time from the court.”
(Capitalization omitted.) On December 5, 2011, plaintiffs requested a date for the motion
for classification be reserved and that the case management conference be continued to
that same date. Class certification was denied on May 25, 2012, and on July 31, 2012,
the court agreed that plaintiffs’ individual “class” claims still remained for adjudication.
On August 13, 2012, plaintiffs moved, ex parte, to specially set what remained of their
case for trial on or before September 11, 2012 (five-year statute would run on that date).
The court denied the motion on the grounds that plaintiffs failed to demonstrate diligence.
Rejecting plaintiffs’ claim that they deserved special treatment because they had been
pursuing a putative class action for three years, the court observed: “Counsel for
Plaintiff[s] does not adequately state why he contends that it was ‘impracticable’ nor does
he state any factual basis that the there was any inhibiting factor which precluded him
from filing the motion earlier. Counsel . . . also does not state why he waited two and
one[-]half months [following the denial of class certification] to file his ex parte motion.”
Regarding plaintiffs’ argument that County should be estopped from opposing special
setting, the court noted the absence of any evidence that County conducted itself in any
way to invoke the doctrine of equitable estoppel.
On August 27, 2012, defendants moved for dismissal of this action pursuant to
sections 583.310 and 583.360. On September 26, 2012, the court found that plaintiffs
had failed to act with diligence in bringing the case to trial, and ordered the action
dismissed. Plaintiffs timely appealed.
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II. DISCUSSION
Plaintiffs contend the trial court (1) abused its discretion in not setting a trial date
at the ex parte hearing after indicating that its calendar was free to do so; (2) erred in
dismissing this action in its entirety; (3) heard and decided three motions for partial
summary judgment in violation of section 437c, subdivision (f)(1); and (4) improperly
granted each of the motions for partial summary adjudication.
A. The Trial Court Did Not Abuse Its Discretion in Refusing to Specially Set
the Case for Trial and Dismissing the Action for Failure to Prosecute
According to plaintiffs, the trial court abused its discretion in refusing to specially
set the case for trial because it incorrectly applied “the legal analysis used in a motion to
dismiss rather than as to an ex parte application seeking to set a trial date or shortened
notice for a motion to set a trial date.” (Italics omitted.) However, the same standard
applies to both “the trial court’s discretionary decision to deny the motion to
preferentially set under section 36, subdivision (e),[3] to avoid the five-year dismissal
statute, and its decision to dismiss the case on discretionary grounds under section
583.410, subdivision (a).” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal. 4th
424, 440, fn. 6; see also Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal. 3d 554,
560-561.) Thus, we will consider the trial court’s discretionary decision to deny
plaintiffs’ motion to preferentially set under section 36, subdivision (e), simultaneously
with its decision to dismiss the case on discretionary grounds.
3 “Notwithstanding any other provision of law, the court may in its discretion
grant a motion for preference that is supported by a showing that satisfies the court that
the interests of justice will be served by granting this preference.” (§ 36, subd. (e).)
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1. General Principles
Under section 583.310, “[a]n action shall be brought to trial within five years after
the action is commenced against the defendant.” Section 583.360 goes on to state:
“(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. [¶] (b) The requirements of this article are mandatory and are
not subject to extension, excuse, or exception except as expressly provided by statute.”
Despite a “preference for disposition on the merits, the decision whether to grant a
motion to specially set a case for trial remains within the sound discretion of the
court. . . . A plaintiff is not automatically entitled to a preferential trial setting merely
because a failure to specially set would lead to an expiration of the five-year statute.
[Citation.] Rather, he or she must generally make ‘some showing of excusable delay’ in
order to receive the preferential trial date. [Citation.] Once a threshold of excusable
delay is shown, however, the trial court still retains discretion to deny the motion, but that
discretion ‘IS NOT WHOLLY UNFETTERED: [the court] must consider the “total
picture.”’ [Citations.] The factors to be taken into account in assessing this ‘total
picture’ are essentially the ones prescribed when a court is considering a motion for a
discretionary dismissal under California Rules of Court, rule [3.1342(e)].[4] [Citation.]”
4 California Rules of Court, rule 3.1342(e) provides: “In ruling on the motion [to
discretionarily dismiss], the court must consider all matters relevant to a proper
determination of the motion, including: [¶] (1) The court’s file in the case and the
declarations and supporting data submitted by the parties and, where applicable, the
availability of the moving party and other essential parties for service of process; [¶]
(2) The diligence in seeking to effect service of process; [¶] (3) The extent to which the
[footnote continued on next page]
5
(Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at pp. 440-441, fn.
omitted.)
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.” Plaintiffs’
argument on appeal for dismissal of the trial court’s judgment rests primarily on
subdivision (c). Under that subdivision, “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.]” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal. 4th 717,
[footnote continued from previous page]
parties engaged in any settlement negotiations or discussions; [¶] (4) The diligence of
the parties in pursuing discovery or other pretrial proceedings, including any
extraordinary relief sought by either party; [¶] (5) The nature and complexity of the
case; [¶] (6) The law applicable to the case, including the pendency of other litigation
under a common set of facts or determinative of the legal or factual issues in the case; [¶]
(7) The nature of any extensions of time or other delay attributable to either party; [¶]
(8) The condition of the court’s calendar and the availability of an earlier trial date if the
matter was ready for trial; [¶] (9) Whether the interests of justice are best served by
dismissal or trial of the case; and [¶] (10) Any other fact or circumstance relevant to a
fair determination of the issue. The court must be guided by the policies set forth in Code
of Civil Procedure section 583.130.”
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731, italics added.) 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. (Sanchez v. City of Los Angeles (2003) 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) prove that he or she has exercised
“‘reasonable diligence’ in prosecuting the case.” (Tamburina v. Combined Ins. Co. of
America (2007) 147 Cal. App. 4th 323, 328, 333, 336.)
[T]he 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.]” (Hughes v. Kimble (1992) 5
Cal. App. 4th 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.]” (Sanchez v. City of Los Angeles, supra, 109 Cal.App.4th at p.
1271.) Thus, the issue before us is whether plaintiffs have shown that there was no
reasonable basis for the trial court to dismiss their action for failure to bring their claims
within the statutory period.
2. Analysis
According to plaintiffs, the trial court erred in dismissing their action because it
failed to toll this case (for three years and 102 days while it was maintained as a putative
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class action) until class certification was determined, it controlled the pace of the
litigation by virtue of its active case management, and it failed to rule that defendants
were estopped from “attempting to seek dismissal” based on their actions of prematurely
filing a proposed judgment.
a. Tolling
Plaintiffs argue that case law supports “the proposition that no substantive issues
can or should be resolved until a determination of whether the case should proceed as a
class” because it is judicially efficient and wards against plaintiffs electing to stay in a
class after receiving a favorable ruling but opt out after an unfavorable one. (Home Sav.
& Loan Assn. v. Superior Court (1976) 54 Cal. App. 3d 208, 214 [summary judgment was
improper prior to adjudication of the procedural class-action issues, including
determination and notification of the classes involved]; Fireside Bank v. Superior Court
(2007) 40 Cal. 4th 1069, 1081 [“‘whether the motion to certify or decertify be made by
the plaintiff or the defendant, [it must] be determined “before the decision on the
merits.”’”].) Furthermore, because courts have tolled the statutes of limitation on
substantive claims of class members until certification has been determined, plaintiffs
assert that “it would be irrational not to apply the same principle of tolling with regard to
the five year requirement to bring a case to trial.” (Becker v. McMillin Construction Co.
(1991) 226 Cal. App. 3d 1493, 1498 [“‘[U]nder limited circumstances, if class certification
is denied, the statute of limitations is tolled from the time of commencement of the suit to
the time of denial of certification for all purported members of the class who either make
timely motions to intervene in the surviving individual action, . . . or who timely file their
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individual actions [citation].’”].) Notwithstanding the above, plaintiffs recognize the
purpose of section 583.340 “is to ‘prevent avoidable delay for too long a period . . . not
. . . arbitrarily to close the proceeding at all events in five years.’ [Citation] . . . .”
(Brunzell Constr. Co. v. Wagner (1970) 2 Cal. 3d 545, 551.)
Acknowledging the need to adjudicate procedural class-action issues prior to
making any determination of the merits of the claims, defendants challenge plaintiffs’
assertion that “the running of the five-year statute must be tolled from the insertion of
class action allegations into a case until the issue of class certification is determined.”
Defendants note the lack of any case law that supports plaintiffs’ assertion and argue that
“[p]laintiffs who make class action allegations have the same obligation to prosecute their
cases diligently as other plaintiffs.” In fact, state policy favors prompt and early class
determinations “in order to permit class members to elect whether to proceed as members
of the class, to intervene with their own counsel, or to be excluded from the class action.”
(Massey v. Bank of America (1976) 56 Cal. App. 3d 29, 32 [dismissal after a nearly five-
year delay].)
Here, because plaintiffs’ complaint contained class allegations, it was their burden
to secure a determination of the class in a timely manner. The action was initiated on
September 11, 2007, class allegations were added on February 13, 2009, defendants
moved to strike the class allegations on April 5, 2012, and plaintiffs moved to certify the
class on April 18, 2012, less than five months prior to the expiration of the five years
from the date the action was commenced. Plaintiffs note that defendants refused to
stipulate to extend the five-year period; however, their only reason for claiming that it
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was impossible to bring the case to trial in a timely manner was the lack of class
certification. Nonetheless, plaintiffs fail to provide any explanation as to their three-year
delay in seeking certification after adding class allegations. Absent such explanation,
there is no basis to toll the mandatory five-year period.
b. Case management
Plaintiffs assert “the five year statute is the relic of civil practice in a different
era—when cases were managed by the litigants and not by the courts.” They claim that
the “California Trial Court Delay Reduction Act completely changed the groundrules
[sic] for managing civil cases.” Citing California Rules of Court, rule 3.713(c) and
Government Code section 68607, plaintiffs argue that it was the trial court’s
responsibility for controlling the pace of the litigation by virtue of its active case
management, and thus “any untoward delay in this litigation proceeding to trial is the
responsibility of the trial court, not the parties.” We reject this argument.
Government Code section 68607, in relevant part, provides: “In accordance with
this article and consistent with statute, judges shall have the responsibility to eliminate
delay in the progress and ultimate resolution of litigation, to assume and maintain control
over the pace of litigation, to actively manage the processing of litigation from
commencement to disposition, and to compel attorneys and litigants to prepare and
resolve all litigation without delay, from the filing of the first document invoking court
jurisdiction to final disposition of the action.” (Italics added.) According to plaintiffs it
is the trial courts, not the litigants, who control the pace of the litigation. Not so.
Nowhere in the above-quoted language, or anywhere else in the statutes cited by
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plaintiffs, does it provide that judges have the exclusive responsibility to manage the pace
of the litigation. Absent such defining language, logic dictates that the responsibility of
moving cases along is shared by both litigants and judges.
Plaintiffs at oral argument (and in their briefing), asked this court to “harmonize”
the five-year statute (Code Civ. Proc., § 583.310) with Government Code section 68607.
We believe that such harmony exists. After an action is initiated, the court holds various
conferences, such as status, case management, and trial setting. Here, there were no less
than six case management conferences and three trial setting conferences from February
2009 through May 2012. We decline to require our overburdened courts to micromanage
each case on their docket, and remove any responsibility from litigants and/or their
attorneys.
“A plaintiff has an obligation to monitor the case in the trial court, to keep track of
relevant dates, and to determine whether any filing, scheduling, or calendaring errors
have occurred. This obligation of diligence increases as the five-year deadline
approaches. [Citations.]” (Jordan v. Superstar Sandcars (2010) 182 Cal. App. 4th 1416,
1422 [Fourth Dist., Div. Two]; see also Wilshire Bundy Corp. v. Auerbach (1991) 228
Cal. App. 3d 1280, 1286-1289 [“The diligent plaintiff has no need for a tolling period. An
available remedy is at hand to correct calendaring or other errors made by the court or its
clerk in the scheduling of a case. Upon timely discovery of the problem, a motion to
specially set may be made and the court is bound to grant it.”].)
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c. Estoppel
Following the trial court’s denial of class certification on May 25, 2012,
defendants submitted a proposed judgment in their favor on the grounds the trial court
had previously determined that plaintiffs’ claims lacked merit. On June 21, 2012,
plaintiffs filed their objection to the proposed judgment, and on July 31, 2012, the trial
court ruled that the proposed judgment was premature because plaintiffs’ individual class
claims remained. On appeal, plaintiffs contend defendants’ premature action of filing the
proposed judgment delayed the setting of a trial date until it became too late to do so, and
thus, defendants should have been estopped from “attempting to seek dismissal.”
Under the doctrine of estoppel, “‘“a person may not lull another into a false sense
of security by conduct causing the latter to forebear to do something which he otherwise
would have done and then take advantage of the inaction caused by his own conduct.”
[Citations.]’” (Holder v. Sheet Metal Worker’s Internat. Assn. (1981) 121 Cal. App. 3d
321, 325 (Holder).) In Holder, after the defendant’s counsel requested and was granted a
continuance of trial until a date after the three-year deadline of former section 583,
subdivision (c) had run, the defendant’s counsel then sought and obtained a dismissal of
the action on the ground that more than three years had expired. (Holder, supra, at p.
324.) The Court of Appeal reversed, holding that “[w]hen a defendant selects a trial date
beyond the three-year period, he shows his willingness to excuse delay and his apparent
satisfaction with his state of preparedness for trial. . . . [T]o deny the application of
estoppel is tantamount to giving a judicial imprimatur to the conduct of lawyers
inconsistent with their role as officers of the court. . . . Here, [defense counsel]
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represented to opposing counsel he wished to continue the case for trial. In his motion
for continuance he made that same representation to the court. Having made that bargain,
he is bound by it.” (Id. at p. 327.)
Defendants’ actions in this case were nothing like those described in Holder. In
fact, we are at a loss as to how defendants’ act of filing a proposed judgment could have
prevented plaintiffs from simultaneously filing a motion to specially set the case for trial.
Having failed to offer any explanation as to why defendants’ act prevented them from
exercising reasonable diligence, plaintiffs have not established estoppel.
For the above reasons, we conclude the trial court did not abuse its discretion in
denying plaintiffs’ motion to specially set the case for trial and defendants’ motion to
dismiss pursuant to sections 583.310 and 583.360.5
5 On December 24, 2013, plaintiffs’ counsel alerted this court to the opinion in
Gaines v. Fidelity National Title Ins. Co. (2013) 222 Cal. App. 4th 25, review granted
April 16, 2014 (S215990), and argued that plaintiffs Branch and Vinson “believe this
may apply to their circumstances,” because they were not brought into this action until
2010. Acknowledging that “this issue was not argued before the trial court and also not
fully briefed before the Court of Appeal,” counsel “welcome[s]” the opportunity to do so.
We decline to provide such opportunity because the Supreme Court has granted review
and ordered the case depublished. More importantly, plaintiffs’ failure to assert this issue
at the trial court level deems it waived or forfeited for purposes of appeal. (Barker v.
Brown & Williamson Tobacco Corp. (2001) 88 Cal. App. 4th 42, 50 [the plaintiff waived
the issue of delayed accrual of the limitations period by failing to raise the issue below];
Phillippe v. Shapell Industries (1987) 43 Cal. 3d 1247, 1256 [a party may not raise a new
theory for the first time on appeal]; and Karlsson v. Ford Motor Co. (2006) 140
Cal. App. 4th 1202, 1227 [a party waived error by failing to object to improper argument
of counsel in the trial court].)
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B. We Need Not Decide Whether the Trial Court’s Hearing and Granting
Partial Summary Judgment/Adjudication Was Improper
Plaintiffs contend the trial court improperly heard and decided defendants’
motions for partial summary judgment/adjudication. However, because we have
concluded the case was properly dismissed pursuant to sections 583.310 and 583.360, we
need not reach these issues.
III. DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MILLER
J.
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