Bittenson v. Bittenson CA2/6 ( 2023 )

Filed 7/19/23 Bittenson v. Bittenson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
TERRI BITTENSON, 2d Civ. No. B320303
(Super. Ct. No. 56-2015-
Plaintiff and Appellant, 00475085-CU-PO-VTA)
(Ventura County)
v.
MARK BITTENSON, et al.,
Defendants and Respondents.
Terri Bittenson purports to appeal from the trial court’s
nonappealable, unsigned minute order dismissing her action for
failure to bring it to trial within five years after it was filed.
(Code Civ. Proc., § 583.310 [“An action shall be brought to trial
within five years after the action is commenced against the
defendant”].)1 After appellant had filed her notice of appeal, the
trial court dismissed the action. We construe the appeal to be
from the judgment of dismissal and affirm.
All statutory references are to the Code of Civil
1
Procedure.
Procedural Background
On December 1, 2015, appellant filed a complaint against
respondents Mark Bittenson, Duane Fowler, and Leslie
Bittenson. In February 2020, more than four years later,
appellant’s present counsel was substituted into the case as her
counsel of record.
On August 10, 2020, a trial setting conference was
conducted. The minute order for the conference states: “Court
and counsel discuss 5 year statute for case and time tolled
pursuant to the [Covid] pandemic. The Court admonishes
counsel to calculate the date [i.e., the date when the five-year
statute will expire]. Mr. Gower [counsel for respondent Leslie
Bittenson] objects to extension except by court mandate. Ms.
Opri [counsel for respondent Mark Bittenson] joins. The Court
again admonishes counsel to research the matter and calculate
the date.” The court scheduled a mandatory settlement
conference for January 19, 2021, and a pretrial conference for
February 8, 2021. Appellant did not object.
On February 8, 2021, the scheduled jury trial date of
February 22, 2021, was vacated. The court continued the pretrial
conference to November 15, 2021. The minute order for February
8, 2021, states, “Jury Trial will not commence until after
Thanksgiving.” Appellant did not object.
By written stipulation signed in November 2021, the
parties agreed to continue the pretrial conference to January 24,
2022. The stipulation said nothing about extending the time
within which an action must be brought to trial pursuant to
section 583.310.
On February 18, 2022, the trial court ordered the parties to
submit briefs on whether the action should be dismissed because
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it had not been brought to trial within five years after it was
filed. In her brief appellant argued that the five-year statutory
period was tolled because the Covid pandemic had created a
judicial emergency that made it “‘impossible, impracticable, or
futile’” to bring the action to trial within the five-year period.
Section 583.340, subdivision (c) provides that, in calculating the
time within which an action must be brought to trial, “there shall
be excluded the time during which . . . [b]ringing the action to
trial . . . was impossible, impracticable or futile.” Appellant
alleged, “Under the circumstances . . . , this case could not have
been tried to a jury in the County of Ventura during the last two
years . . . .”
The trial court issued its ruling in an unsigned, three-page
minute order. The court said:
“Since the action commenced on December 1, 2015,
pursuant to CCP, section 583.310, [appellant] was required to
bring the action to trial within 5 years, or by December 1,
2020 . . . .” “During the COVID-19 pandemic, emergency orders
(Order of the Chief Justice 10(a)) extended the time to bring an
action to trial . . . by 6 months. [Appellant’s] deadline to bring
the action to trial was therefore extended from December 1, 2020,
to June 1, 2021.”2
2 “Following the outbreak of COVID-19 in March 2020, the
Judicial Council of California adopted an emergency rule that
extended the deadline to bring a civil action to trial under section
583.310. Specifically, emergency rule 10(a), effective April 6,
2020, provides that ‘Notwithstanding any other law, including . . .
section 583.310, for all civil actions filed on or before April 6,
2020, the time in which to bring the action to trial is extended by
six months for a total time of five years and six months.’ (Cal.
3
“For this Court to rule that the COVID-19 pandemic and
concurrent safety requirements are, by themselves, an
‘impossible, impractica[b]l[e], or futile’ reason under CCP section
583.340, subdivision (c) would create an absurd result: such a
ruling would effectively suspend the entire statute for all
litigants during the entirety of the pandemic, based solely on the
presence of the pandemic. . . . Numerous civil trials have taken
place in this courthouse along with dozens of criminal jury trials
since March of 2020. Jury trials were happening, albeit without
the awareness of [appellant’s] counsel.”
“Despite the fact that [appellant] could have brought the
matter to trial during the pandemic to meet the 5-year deadline,
[appellant’s] counsel made no attempt to proceed to trial during
that time.” “Simply put, reasons related to the pandemic only
added six months to the computation of time under CCP section
583.310 et seq.”
“Importantly, the Court notes a minute order dated August
10, 2020, wherein the parties were advised by . . . this Court that
this time limit was a significant issue that they needed to
address. [Respondents] made clear they would not agree to
extend the deadline under CCP, section 583.310. [Appellant] was
expressly placed on notice at that time that the date needed to be
determined and the issue needed to be resolved.”
“[Appellant] had until June 1, 2021 to bring this action to
trial. There is no other statutory extension, tolling, etc. that
applies. . . . Dismissal is mandatory under CCP, section 583.360.”
Section 583.360 provides: “(a) An action shall be dismissed by the
Rules of Court, appen. I, emergency rule 10(a); . . . .)” (State ex
rel. Sills v. Gharib-Danesh (2023) 88 Cal.App.5th 824, 840.)
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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.”
The trial court denied appellant’s motion for
reconsideration. Appellant filed a notice of appeal from the
“Ruling on Submitted Matter Dismissing Action Under C.C.P.
583.310.” The trial court subsequently filed a signed judgment
dismissing the action.
We Construe the Appeal to Be
from the Judgment of Dismissal
The unsigned minute order dismissing the action is not an
appealable order. “As Witkin clearly explains: ‘In 1963, C.C.P.
581d was amended to state that all dismissals ordered by the
court must be in the form of a written order, signed and filed, and
that such orders when filed shall constitute judgments.
[Citations.] The amendment makes a minute entry ineffectual
and nonappealable; no appeal can be taken except from the order
signed and filed. [Citations.]’ [Citation.]” (In re Marriage of
Macfarlane & Lang (1992) 8 Cal.App.4th 247, 253, fn. 4.)
Appellant “filed a premature notice of appeal from the
nonappealable minute order [dismissing the action], but a signed
judgment of dismissal was entered . . . after the minute order.
We treat the notice of appeal as having been filed immediately
after entry of judgment.” (Miranda v. 21st Century Ins. Co.
(2004) 117 Cal.App.4th 913, 919, fn. omitted.)
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The Trial Court Did Not Abuse Its
Discretion In Dismissing the Action
“‘The question of impossibility, impracticability, or futility
[within the meaning of section 583.340, subdivision (c)] 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 . . . exception.
[Citation.] . . . 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.
[Citations.]’ [Citation.] Under that standard, ‘[t]he trial court’s
findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the
law to the facts is reversible only if arbitrary and capricious.’”
(Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081,
1100 (Gaines).)
“‘“The critical factor in applying [the impossible,
impracticable, or futile] exception[] to a given factual situation is
whether the plaintiff exercised reasonable diligence in
prosecuting his or her case.”’” (Gaines, supra, 62 Cal.4th at p.
1100.) “This duty of diligence applies ‘at all stages of the
proceedings,’ and the level of diligence required increases as the
five-year deadline approaches. [Citations.] The exercise of
reasonable diligence includes a duty ‘to monitor the case in the
trial court to ascertain whether any filing, scheduling or
calendaring errors have occurred.’” (Tamburina v. Combined Ins.
Co. of America (2007) 147 Cal.App.4th 323, 336.)
Appellant has not carried her burden of showing that the
trial court abused its discretion. For the reasons explained by the
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trial court in its minute order dismissing the action (see the
discussion, ante, at pp. 3-5), the court did not act arbitrarily or
capriciously in concluding that appellant had failed to exercise
reasonable diligence in prosecuting her action. On February 8,
2021, when the trial court continued the pretrial conference to
November 2021 and said the “Jury Trial will not commence until
after Thanksgiving,” “[appellant] had a duty to bring to the trial
court's attention the fact that the trial court set the trial for a
date after expiration of the five-year period, and object.
Upon becoming aware of the impending expiration of the
five-year period, the trial court in all likelihood would have given
the case priority for the purpose of trying the case before the five-
year period expired. [Appellant’s] attorney failed to alert the
trial court that the trial date was beyond the five-year mark of
[June 1, 2021], and thus, in effect, [appellant] acquiesced in the
court's setting the trial date beyond the five-year mark.” (De
Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365,
374 (De Santiago).)
“[Appellant] also had a duty to take whatever other
measures were available to attempt to accelerate trial of the case
before expiration of the five-year period, including bringing a
motion to advance the trial. Even after the court set the case for
trial beyond the five-year mark, there was ample time to move to
advance the trial date pursuant to California Rules of Court, rule
3.1335.” (De Santiago, supra, 155 Cal.App.4th at p. 374.)
“‘“‘Where 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.’ . . .” . . .’” (De Santiago, supra, 155 Cal.App.4th
7
at p. 375.) Appellant “simply acquiesced in the setting of a trial
date beyond the five-year mark without securing a stipulation to
extend the statutory period.” (Sanchez v. City of Los Angeles
(2003) 109 Cal.App.4th 1262, 1265.)
Appellant Forfeited Contention that Trial Court Is
Estopped from Asserting that She Violated § 583.310
Appellant contends, “[A] forceful argument can be made
that the trial court, when it issued its [order that the parties
submit briefs] on the issue of the 5-year dismissal statute, was
acting as a ‘party’ and that the trial court’s repeated and
unsolicited orders ‘vacating’ confirmed pre-trial and trial dates
(i.e., [the order of February 8, 2021, vacating the scheduled jury
trial date of] February 22, 2021 . . .) ought to invoke the general
rule that when a party seeks a continuance of trial, that party is
estopped to assert limitation periods for bringing an action
to trial. [Citations.]” Appellant cites no authority and presents
no meaningful legal analysis in support of this bizarre theory of
estoppel. She has therefore forfeited the point.
“‘A judgment or order of the lower court is presumed
correct. . . . [E]rror must be affirmatively shown. . . .’” (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘Appellate briefs
must provide argument and legal authority for the positions
taken. “When an appellant . . . asserts [a point] but fails to
support it with reasoned argument and citations to authority, we
treat the point as waived.”’ [Citation.] ‘We are not bound to
develop appellant[’s] argument[ ] for [her]. . . .’” (Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Disposition
The judgment is affirmed. Respondents shall recover their
costs on appeal.
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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Law Offices of Jeffrey D. Johnsen and Jeffrey D. Johnsen,
for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith and Philip N. Blanco,
Jeffry A. Miller, Ernest Slome; MacDonald & Cody and Gregory
John Bramlage, for Defendant and Respondent Leslie Bittenson.
Opri & Associates and Debra A. Opri, for Defendant and
Respondent, Mark Bittenson.
Duane Fowler, in propria persona, for Defendant and
Respondent.