Bartel v. Am. Trading & Production Corp. CA2/4 ( 2021 )

Filed 10/20/21 Bartel v. Am. Trading & Production Corp. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
WILLARD BARTEL, et al., B308297
Plaintiffs and Appellants, (Los Angeles County
v. Super. Ct. No. BC523534)
AMERICAN TRADING &
PRODUCTION CORP, et al.,
Defendants and Respondents.
APPEAL from order of the Superior Court of Los Angeles
County, David S. Cunningham III, Judge. Affirmed.
Morris Law Firm, James A. Morris and Shane E.
Greenberg; Motley Rice, John E. Herrick; and Jaques Admiralty
Law Firm, Alan Kellman and Donald A. Krispin for Plaintiffs and
Appellants.
Gordon Reese Scully Mansukhani, Andrew I. Port, Cheryl,
A. Morris, and Don Willenburg for Defendants and Respondents.
INTRODUCTION
Administrators of the estate of a deceased seaman, Carsie
Fairman, and Mr. Fairman’s widow (collectively, appellants) filed
a wrongful death action under the Jones Act (46 U.S.C. § 30104et seq.)1 and general maritime law against the owners and
operators of ships Mr. Fairman worked aboard (respondents).
Appellants filed the action in superior court pursuant to the
“saving to suitors clause,” which provides state courts with
concurrent maritime jurisdiction. (28 U.S.C. § 1333(1).)
Appellants appeal the dismissal of their complaint by the
trial court for lack of prosecution under California Code of Civil
Procedure section 583.310.2 They contend the trial court erred in
dismissing their case because the Jones Act preempts section
583.310. We hold section 583.310 is a state procedural law that
neither violates a characteristic feature of the Jones Act nor
interferes with the proper harmony and uniformity of that law.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 2013, appellants filed a complaint against
respondents under the Jones Act and general maritime law,
alleging Mr. Fairman developed lung cancer caused by exposure
to asbestos products while employed aboard respondents’ ships.
The action was stayed from January 16, 2014 until August 12,
2014 (209 days).
On July 9, 2020, six years and nine months after appellants
filed the complaint, respondents moved to dismiss the complaint
under section 583.310 for failure to bring the action to trial
1 The Jones Act authorizes a seaman who suffers personal
injury during his employment to bring an action for damages. (46
U.S.C. § 30104.)
2 All further undesignated statutory references are to the
Code of Civil Procedure.
2
within five years. Respondents noted the parties never agreed to
extend the time to bring the action to trial, and appellants did
nothing to prosecute the action other than depose two fact
witnesses, and notice (but not take) the deposition of one other
witness. Appellants opposed the motion, arguing section 583.310
is preempted by the Jones Act because it gnaws at the
substantive rights guaranteed by the Jones Act. They further
argued that even if section 583.310 is applicable, equitable
estoppel should prevent dismissal of their complaint against the
two defendants that failed to answer the complaint until more
than five years after the complaint was filed.
The court heard the motion on September 1, 2020.
Appellants clarified they were not arguing that the action
“fall[s] with[in] any statutory exception under . . . section
583.340[.]”3 Instead, they argued section 583.310 interferes with
substantive maritime law. The court disagreed, holding: “If we
apply . . . section 583.310, it will not interfere with the proper
harmony and uniformity of maritime law. [¶] . . . Rules and
statutes . . . to dismiss a case for failure to prosecute are
procedural rather than substantive, thus, the reverse [Erie]
doctrine would apply, and the court will adopt its tentative [to
grant the motion].”
Appellants timely appeal from the court’s order granting
respondents’ motion to dismiss appellants’ complaint.
DISCUSSION
A. Background Principles and Standard of Review
“Article III of the United States Constitution gives federal
courts exclusive jurisdiction over all admiralty and maritime
matters, but 28 United States Code section 1331(1) grants state
courts concurrent jurisdiction under the so-called ‘saving to
3 Section 583.340 lists three statutory exceptions that toll the
five-year limit to bring the case to trial.
3
suitors clause.’” (Price v. Connolly-Pacific Co. (2008) 162
Cal.App.4th 1210, 1213.) “This clause provides for in personam
remedies which ‘means that an injured party may have claims
arising from a single accident under both federal maritime and
state common or statutory law. State remedies under the savings
to suitors clause may be pursued in state court or, if there is a
basis for federal jurisdiction, in federal court. [Citation.]
A maritime claim brought in the common law state courts is
governed by federal maritime law, however.’ [Citation.]” (Id. at
pp. 1213-1214.) “This is sometimes referred to as the reverse-Erie
doctrine.” (Id. at p. 1214, fn. omitted.)
“The Erie doctrine (Erie R. Co. v. Tompkins (1938) 304 U.S.
64 [ ]) requires that a federal court sitting in diversity jurisdiction
over a state law claim must apply state substantive law in
resolving a dispute. However the extent to which state law may
be used to remedy maritime injuries is constrained by a so-called
reverse-Erie doctrine which requires that substantive remedies
afforded by the states conform to governing federal maritime
standards. [Citation.]” (Price v. Connolly-Pacific Co., supra, 162
Cal.App.4th at p. 1214, fn. 1.) “But even when an action is
founded on federal law, when brought in state court ‘the law of
the state controls in matters of practice and procedure unless the
federal statute provides otherwise. [Citation.]’” (Simmons v. Ware
(2013) 213 Cal.App.4th 1035, 1047, quoting Scruton v. Korean Air
Lines Co. (1995) 39 Cal.App.4th 1596, 1603.)
The United States Supreme Court explained that in
maritime cases filed in state court, a state procedural rule
applies, and is not preempted by federal maritime law, unless it
“‘works material prejudice to the characteristic features of the
general maritime law or interferes with the proper harmony and
uniformity of that law in its international and interstate
relations.’” (American Dredging Co. v. Miller (1994) 510 U.S. 443,
447 [114 S.Ct. 981, 127 L.Ed.2d 285] (American Dredging),
4
quoting S. Pac. Co. v. Jensen (1917) 244 U.S. 205, 216 [37 S.Ct.
524, 61 L.Ed. 1086].)
We review de novo a trial court’s decision regarding choice-
of-law and federal preemption of state law. (See, e.g., Brown v.
Grimes (2011) 192 Cal.App.4th 265, 274 [“The choice-of-law issue
is a legal one that is decided de novo. [Citations.]”); see also Farm
Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10
[“federal preemption presents a pure question of law.
[Citation.]”].)
B. Federal Maritime Law Does Not Preempt Section
583.310
Section 583.310 requires that “[a]n action shall be brought
to trial within five years after the action is commenced against
the defendant.” “This requirement is mandatory and not subject
to extension, excuse or exception except as expressly provided by
statute. [Citation.]” (Rel v. Pacific Bell Mobile Services (2019) 33
Cal.App.5th 882, 889; see also § 583.360, subd. (b).) “‘Thus, unless
some specified exception applies, a trial court has a mandatory
duty to dismiss an action and a defendant has an absolute right
to obtain an order of dismissal, once five years has elapsed from
the date the action was commenced.’ [Citation.]” (Cole v.
Hammond (2019) 37 Cal.App.5th 912, 921 (Cole).) The three
statutory exceptions that toll the five-year limit are periods
when: “(a) [t]he jurisdiction of the court to try the action was
suspended[;] [¶] (b) [p]rosecution or trial of the action was stayed
or enjoined[;][and] [¶] (c) [b]ringing the action to trial, for any
other reason, was impossible, impracticable, or futile.” (§ 583.340,
subds. (a)-(c).)
Appellants contend that “irrespective of whether [section
583.310] is ‘procedural’ or ‘substantive,’ under the facts of this
case the application of section 583.310 via the ‘reverse-Erie’
doctrine imposes an impermissible burden on [a]ppellants’
federal rights and, as such, is preempted.” They argue the Jones
5
Act preempts section 583.310 because “application of [section
583.310] to [a]ppellants’ causes of action unequivocally created
‘material prejudice’ as it extinguished their right to redress
expressly provided for under maritime law.” We disagree.
In American Dredging, the United States Supreme Court
held that in admiralty cases filed in a state court under the Jones
Act and the “saving to suitors clause,” federal law does not
preempt state law concerning the doctrine of forum non
conveniens. (American Dredging, supra, 510 U.S. at pp. 443, 466-
467.) In that case, the Supreme Court of Louisiana reversed the
Court of Appeal, holding that Article 123(C) of the
Louisiana Code of Civil Procedure, which renders the doctrine
of forum non conveniens unavailable in Jones Act and maritime
law cases brought in Louisiana state courts, is not preempted by
federal maritime law. (Id. at pp. 445-446.) The United States
Supreme Court affirmed, stating: “The issue before us here is
whether the doctrine of forum non conveniens is either a
‘characteristic feature’ of admiralty or a doctrine whose uniform
application is necessary to maintain the ‘proper harmony’ of
maritime law. We think it is neither.” (Id. at p. 447, italics
omitted, fn. omitted.)
First, the American Dredging court concluded the doctrine
of forum non conveniens was not a characteristic feature of
admiralty, but rather “has long been a doctrine of general
application.” (American Dredging, supra, 510 U.S. at p. 450.) A
state’s refusal to apply forum non conveniens therefore did not
work material prejudice to a “characteristic feature of general
maritime law. [Citation.]” (Ibid.)
Next, in analyzing whether Louisiana’s state law interfered
with the proper harmony and uniformity of federal maritime law,
the American Dredging court acknowledged that application of
Louisiana’s state law produces disuniformity because “maritime
defendants ‘have access to a forum non conveniens defense in
federal court that is not presently recognized in Louisiana
6
state courts.’” (American Dredging, supra, 510 U.S. at p. 450,
italics omitted.) It held, however, that the rule does not
“‘interfere[ ] with the proper harmony and uniformity’ of
maritime law[.]” (Id. at pp. 451, 455.) The court reasoned that the
forum non conveniens doctrine, essentially a venue rule, is a
procedural rule and contrasted it with state substantive rules
which are preempted by federal maritime law: “Unlike burden of
proof (which is a sort of default rule of liability) and affirmative
defenses such as contributory negligence (which eliminate
liability), forum non conveniens does not bear upon
the substantive right to recover, and is not a rule upon which
maritime actors rely in making decisions about primary
conduct—how to manage their business and what precautions to
take.” (Id. at pp. 453-454, italics omitted, fn. omitted.)
American Dredging is dispositive. Like the forum non
conveniens doctrine, California’s five-year rule is not a
“characteristic feature of admiralty,” but rather a rule generally
applicable to any complaint filed in California state court.
(American Dredging, supra, 510 U.S. at p. 447.) Application of
section 583.310 to maritime actions does not, therefore, “‘work[ ]
material prejudice to the characteristic features of the general
maritime law[.]’” (Ibid.)
We acknowledge that, like the state law at issue in
American Dredging, application of section 583.310 to maritime
actions filed in state court may produce disuniformity. As stated
above, section 583.310 is mandatory unless the plaintiff can
demonstrate an exception applies. (Cole, supra, 37 Cal.App.5th at
p. 921.) In federal court, dismissal for failure to prosecute the
action is not mandatory, but the action may be dismissed earlier
than five years. (See Fed. Rules Civ. Proc., rule 41(b) [“If the
plaintiff fails to prosecute . . . a defendant may move to dismiss
7
the action or any claim against it.”].)4 California’s five-year rule
does not, however, “bear upon the substantive right to recover,
and is not a rule upon which maritime actors rely in making
decisions about primary conduct—how to manage their business
and what precautions to take,” like statutes affecting liability.
(American Dredging, supra, 510 U.S. at p. 454, fn. omitted,
citation omitted.) Instead, section 583.310 is a procedural rule,
even if its application may affect the outcome of the litigation.
(See, e.g., Olympic Sports Products, Inc. v. Universal Athletic
Sales Co. (9th Cir. 1985) 760 F.2d 910, 914 [in holding
California’s five-year rule, previously codified in section 583,
subd. (b), is procedural, the court recognized that “every
procedural rule may, at some point in litigation, be outcome-
determinative, for the failure to follow a court’s procedural rules
may result in the dismissal of a claim, defense, or entire
lawsuit.”].) Uniform application of a rule regarding dismissal of
an action for failure to prosecute is, therefore, not “necessary to
maintain the ‘proper harmony’ of maritime law.” (American
Dredging, supra, 510 U.S. at p. 447.)
We conclude federal law does not preempt application of
section 583.310 in maritime cases filed in California state court.
4 We note, had this action been brought in federal court, a
district court could have dismissed this action before five years
elapsed given the complete lack of prosecution other than two
depositions. (See, e.g., Davila v. Erickson & Jensen Seafood
Packers (S.D. Texas 2014) 2014 U.S. Dist. LEXIS 193016 at *5
[Magistrate Judge recommended dismissal of a complaint
alleging claims pursuant to general maritime law and the Jones
Act for want of prosecution less than two years after plaintiff
filed his complaint.].)
8
The trial court therefore properly dismissed appellants’ complaint
under section 583.360, subdivision (a).5
C. Equitable Estoppel Does Not Apply
Alternatively, appellants contend the five-year limit to
bring an action to trial should be tolled under the doctrine of
equitable estoppel. We reject this argument for two reasons.
First, equitable estoppel is not one of the enumerated
statutory exceptions. (See § 583.360, subd. (b) [“The requirements
of this article are mandatory and are not subject to extension,
excuse or exception except as expressly provided by statute.”]; see
also § 583.330 [“The parties may extend the time within which an
action must be brought to trial” by either “written stipulation” or
“oral agreement made in open court, if entered in the minutes of
the court or a transcript is made.”].)
Second, even assuming equitable estoppel could toll the
five-year limit in section 583.310, it is inapplicable here. “‘[T]he
doctrine of equitable estoppel operates to preclude a party who
has made representations of fact through his words or conduct
“from asserting rights which might perhaps have otherwise
existed as against another person, who has in good faith relied
upon such conduct, and has been led thereby to change his
position for the worse, and who on his part acquired some
corresponding right.”’” (Oxford Shipping Co. v. New Hampshire
Trading Corp. (1st Cir. 1982) 697 F.2d 1, 4, internal brackets and
ellipses omitted.)6
5 Section 583.360, subdivision (a) states: “An action shall be
dismissed by the court . . . if the action is not brought to trial
within the time prescribed in this article.”
6 We accept for discussion purposes appellants’ assertion
that federal equitable estoppel standards apply here.
Respondents do not argue the contrary. But the result would be
the same if state standards applied.
9
Respondents made no representations concerning the five-
year rule, nor did appellants rely in good faith on respondents’
conduct in not bringing their action to trial in five years.
Appellants do not argue that any representations of fact were
made orally regarding tolling the five-year limit. Instead,
appellants claim they relied in good faith on respondents’ conduct
after five years had elapsed from the filing of the complaint (i.e.,
participating in two depositions, and the filing of answers to the
complaint by two of the respondents), and “continu[ed] to
prosecute their claims.” Respondents’ limited participation in the
litigation after five years elapsed since the filing of the complaint
does not constitute a “representation of fact” that respondents
were willing to extend the time within which the action must be
brought to trial under section 583.310. Indeed, respondents’
conduct took place within the time permitted under section
583.310 (i.e., within 5 years plus the 209 days when the action
was stayed). (See § 583.340, subd. (b) [five-year limit tolled when
prosecution or trial of the action was stayed.].) And, in any event,
although appellants claim they continued to prosecute their
claims based on respondents’ conduct, they do not argue, as they
must under the equitable estoppel doctrine, that they relied on
respondents’ conduct in not bringing their action to trial within
the time permitted under section 583.310.
Accordingly, respondents were not “equitably estopped”
from relying on section 583.310 to dismiss appellants’ complaint.7
7 In their reply brief, appellants claim for the first time that
it would have been impossible or impracticable to bring the action
to trial against the two respondents who did not answer the
complaint until five years after the complaint was filed. Because
this argument was never raised in the trial court, and was
asserted for the first time in a reply brief on appeal, we deem this
argument forfeited. (See Ochoa v. Pacific Gas & Electric Co.
(1998) 61 Cal.App.4th 1480, 1488, fn. 3 [arguments not raised in
the trial court are forfeited on appeal]; see also Habitat &
Watershed Caretakers v. City of Santa Cruz (2013) 213
10
DISPOSITION
The order is affirmed. Respondents are awarded their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
Cal.App.4th 1277, 1292, fn. 6 [“Arguments presented for
the first time in an appellant’s reply brief are considered
[forfeited].”].)
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