Brooks v. The Rehabilitation Centre of Beverly Hills CA2/2

Filed 8/24/21 Brooks v. The Rehabilitation Centre of Beverly Hills CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
IAN W. BROOKS, B308796
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. BC575125)
THE REHABILITATION CENTRE
OF BEVERLY HILLS, INC., et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of
Los Angeles County, Mark A. Young, Judge. Affirmed.
Balisok & Associates and Russell S. Balisok for Plaintiff
and Appellant.
Lewis Brisbois Bisgaard & Smith, Gregory G. Lynch,
John J. Weber and Kristi K. Hedrick for Defendant and
Respondent The Rehabilitation Centre of Beverly Hills, Inc.
Hulbert & Hulbert and Gregory M. Hulbert for Defendants
and Respondents Cedars-Sinai Medical Group and Inpatient
Specialty Practices, Inc.
______________________________
Plaintiff and appellant Ian W. Brooks (Brooks) appeals
from orders of dismissal1 as to defendants and respondents The
Rehabilitation Centre of Beverly Hills, Inc. (Rehabilitation
Centre), Cedars-Sinai Medical Group (Medical Group), and
Inpatient Specialty Practices, Inc. (Inpatient Specialty Practices)2
based on Brooks’s failure to bring the action to trial within five
years after it was commenced. (Code Civ. Proc., §§ 583.310,
583.360.)3 Brooks contends that, because there was a pending
appeal as to two other defendants, proceeding to trial against
respondents was impracticable within the meaning of
section 583.340, subdivision (c), and that the time to bring the
case to trial should have been extended.
Finding no abuse of the trial court’s discretion, we affirm.
1 An order of dismissal is a judgment. (Code. Civ. Proc.,
§ 581d; D’Hondt v. Regents of University of California (1984)
153 Cal.App.3d 723, 726.)
2 We refer to Rehabilitation Centre, Medical Group, and
Inpatient Specialty Practices, collectively as respondents.
3
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
BACKGROUND
I. Relevant Pleadings
On March 11, 2015, Brooks commenced this action by filing
a complaint alleging, as the successor in interest to his mother,
causes of action for fraud, constructive fraud, unfair business
practice (Bus. & Prof. Code, § 17200 et seq.), recklessness, elder
abuse, and violation of Health and Safety Code section 1430,
subdivision (b). On his own behalf, Brooks asserted a cause of
action for wrongful death.
As of the filing of the operative fourth amended complaint
in January 2018, the named defendants included respondents, as
well as Cedars-Sinai Medical Center (Medical Center) and
Cedars-Sinai Medical Care Foundation, Inc. (Foundation).4
II. Respondents’ Motions to Dismiss
On March 13, 2020, Medical Group and Inpatient Specialty
Practices each filed a motion to dismiss based on Brooks’s failure
to bring this action to trial within five years of filing the
complaint, as required by section 583.310. On April 7, 2020,
Rehabilitation Centre filed its motion to dismiss on the same
ground.
III. Brooks’s Opposition
In a joint opposition to the motions to dismiss, Brooks
asserted three reasons why it was impossible, impracticable, or
futile within the meaning of section 583.340, subdivision (c), to
4 Medical Center and Foundation are not parties to this
appeal. In December 2018, the trial court granted their motions
for summary judgment. Brooks appealed from the summary
judgments as to Medical Center and Foundation, and on April 21,
2020, we affirmed. (Brooks v. Cedars Sinai Medical Center
(Apr. 21, 2020, B295540) [nonpub. opn.].) The remittitur was
issued on August 17, 2020.
3
bring the action to trial within five years. First, given his
pending appeal as to Medical Center and Foundation, he would
have risked duplicate trials or collateral estoppel if he proceeded
to trial against respondents. Second, one of his counsel died in
December 2019 and his other counsel had ongoing health
problems. Third, courtrooms had been closed starting March 17,
2020, due to the COVID-19 pandemic.
IV. Trial Court’s Ruling and Orders of Dismissal
On July 15, 2020, the trial court granted the motions to
dismiss. The court determined that the five-year deadline to
bring this action to trial was March 11, 2020. The court
concluded that neither the pending appeal as to other defendants
nor the health of Brooks’s counsel rendered it impossible,
impracticable, or futile to proceed to trial by that date.5 The
court found “no evidence” that severing trials of appealing and
nonappealing defendants “would have resulted in ‘excessive and
unreasonable difficulty or expense.’”
The trial court subsequently issued orders of dismissal with
prejudice as to respondents.
V. Appeal
This timely appeal ensued.
DISCUSSION
I. Relevant Law
An action must be brought to trial within five years after it
is commenced against a defendant. (§ 583.310; Gaines v. Fidelity
National Title Ins. Co. (2016) 62 Cal.4th 1081, 1089 (Gaines).) In
calculating the five-year period, the trial court must exclude “any
time when it was ‘impossible, impracticable, or futile’ to bring the
5 The trial court did not address the impact of court closures
related to the COVID-19 pandemic.
4
case to trial. (§ 583.340, subd. (c) . . . .)” (Gaines, supra, at
p. 1087.)6
“[T]he 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.’” (Bruns v. E-Commerce Exchange,
Inc. (2011) 51 Cal.4th 717, 730 (Bruns).) The California Supreme
Court has repeatedly explained that “‘impracticability and
futility’ involve a determination of ‘“excessive and unreasonable
difficulty or expense,”’ in light of all the circumstances of the
particular case.” (Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d
545, 554 (Brunzell); accord Bruns, supra, at p. 731.)
If the five-year deadline—taking into consideration any
applicable tolling period—is not met, the trial court must dismiss
the action on its own motion or on the motion of a defendant,
after notice has been given to the parties. (§§ 583.340, 583.360;
see also Gaines, supra, 62 Cal.4th at p. 1105 [“The five-year rule
is mandatory and dismissal for noncompliance is required”].)
6 Other periods must also be excluded when calculating the
five-year period. (§ 583.340, subds. (a) [excluding time when
“[t]he jurisdiction of the court to try the action was suspended”],
(b) [excluding time when “[p]rosecution or trial of the action was
stayed or enjoined”].) The time period may also be extended by
written stipulation or by oral agreement made in open court.
(§ 583.330, subds. (a), (b)). Brooks does not argue on appeal that
any of these other tolling or extension provisions are applicable.
5
II. Standard of Review
Whether a period is excludable from the time to bring an
action to trial due to impossibility, impracticability, or futility
(§ 583.340, subd. (c)) is a question “best resolved by the trial
court, which ‘is in the most advantageous position to evaluate
these diverse factual matters in the first instance.’” (Bruns,
supra, 51 Cal.4th at p. 731.) It is the plaintiff’s burden to prove
that the exception applies. (Ibid.)
We review the trial court’s decision for an abuse of
discretion. (Bruns, supra, 51 Cal.4th at p. 731; see also Gaines,
supra, 62 Cal.4th at p. 1100, fn. 8.)
III. Analysis
Brooks argues that it was impracticable, within the
meaning of section 583.340, subdivision (c), to proceed to trial
against respondents while his appeal as to Medical Center and
Foundation, who allegedly engaged in a joint venture with
respondents, was pending. He contends that the trial court
abused its discretion by finding otherwise and failing to exclude
the period when the appeal was pending when it calculated the
five-year deadline as expiring on March 11, 2020.7
7 Brooks has forfeited any argument that California Rules of
Court, Appendix I, Emergency rule 10(a), effective April 6, 2020,
extended the time for him to bring the action to trial. Brooks did
not raise the issue in the trial court or in his opening brief on
appeal. (Schultz v. Workers’ Comp. Appeals Bd. (2015)
232 Cal.App.4th 1126, 1134 [“issues not raised in the trial court
are generally forfeited for purposes of appeal”]; Golden Door
Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 786
[“issues not addressed as error in a party’s opening brief with
legal analysis and citation to authority are forfeited”].)
Additionally, his late-filed response to our invitation to submit a
6
We find no abuse of discretion. It was Brooks’s burden
below to “prov[e] that the circumstances warrant[ed] application
of the section 583.340[, subd. ](c) exception.” (Bruns, supra,51 Cal.4th at p. 731.) The trial court could reasonably conclude
that Brooks did not meet his burden.
As the trial court explained in its ruling, Brooks proffered
no evidence that bringing respondents to trial during the
pendency of his appeal as to Medical Center and Foundation
would have resulted in “‘“excessive and unreasonable difficulty or
expense[.]”’” (Brunzell, supra, 2 Cal.3d at p. 554.) On appeal,
Brooks merely raises the possibility that if his appeal had been
successful—it was not—he would have needed to prosecute a
separate trial against Medical Center and Foundation, which
would involve “identical facts” as a trial against respondents,
“with the possibility of inconsistent results.” But Brooks offers no
argument why a possible second trial would necessarily involve
anything more than the costs and inconveniences to be
reasonably expected when prosecuting a case against multiple
defendants.
Brooks relies heavily on Holland v. Dave Altman’s R.V.
Center (1990) 222 Cal.App.3d 477 (Holland). That case is
distinguishable and does not compel reversal.
letter brief addressing the effect on this matter, if any, of
California Rules of Court, Emergency rule 10(a) was inadequate,
as it failed to provide any developed discussion or citation to
supporting authority. (In re Marriage of Carlisle (2021)
60 Cal.App.5th 244, 255 [“‘The absence of cogent legal argument
or citation to authority allows this court to treat the contentions
as’ forfeited”].) We therefore need not and do not address the
issue further.
7
In Holland, supra, 222 Cal.App.3d at page 479, the driver
of one vehicle involved in a two-vehicle collision (the plaintiff)
brought an action against the driver and owners of the other
vehicle. The other driver filed a successful motion to quash
service, and the plaintiff appealed. (Id. at pp. 479–480.) On two
occasions, the trial court ordered that the case was not to proceed
to trial until after the appeal was decided. (Id. at pp. 480, 484.)
The order granting the motion to quash as to the other driver was
eventually affirmed, and the trial court later granted the owners’
motion to dismiss for failure to bring the case to trial within five
years. (Id. at p. 480.)
The Court of Appeal reversed the dismissal on two
independent grounds. (Holland, supra, 222 Cal.App.3d at
pp. 479, 481–484.) First, it concluded that the action was stayed
during the pendency of the other driver’s appeal. (Id. at pp. 481–
483.) Excluding that period from the calculation of the five-year
period, as required by section 583.340, subdivision (b), the action
had been prematurely dismissed. (Holland, supra, at p. 483.)
Second, the Court of Appeal found that it was impracticable
within the meaning of section 583.340, subdivision (c), to proceed
to trial against the owners during the pendency of the appeal.
(Holland, supra, at pp. 483–484.) In so holding, the Court of
Appeal reasoned that “[s]everance ran the risk of duplicative
proceedings, with all of the waste of time and resources (of the
parties and the court) that would have entailed.” (Id. at p. 483.)
The Court of Appeal also found that it was impracticable to
proceed to trial during the pendency of the appeal because the
trial court’s orders precluded that very action. (Id. at p. 484.)
The plaintiff could not “be expected to fly in the face of such
8
orders, nor should she be penalized for not having done so.”
(Ibid.)
Here, unlike in Holland, no stay of proceedings pending the
appeal as to Medical Center and Foundation was sought by
Brooks or ordered by the trial court. The exception under
section 583.340, subdivision (b), is therefore inapplicable, and
Brooks would not have violated any court order by proceeding to
trial against respondents within five years.
While Holland’s alternative ground for reversal—that the
possibility of duplicative proceedings as to the other driver and
the owners rendered it impracticable to proceed to trial while the
appeal was pending (Holland, supra, 222 Cal.App.3d at p. 483)—
provides some support for Brooks’s contention here, it is not
dispositive. Holland’s analysis was case-specific, and it did not
hold that the mere possibility of duplicative proceedings required
a finding of impracticability.
Here, the trial court considered the impact of the appeal as
to Medical Center and Foundation on bringing respondents to
trial and determined that Brooks had not proven that the
“impossible, impracticable, or futile” (§ 583.340, subd. (c))
exception applied.8 Brooks has failed to demonstrate why the
court’s determination was anything more than debatable, which
is insufficient to establish an abuse of discretion. (People v.
8 Because the trial court expressly considered this factor, this
case is distinguishable from Dowling v. Farmers Ins. Exchange
(2012) 208 Cal.App.4th 685, which held that it was error to “fail[]
to consider the potential impact . . . of appellate proceedings in a
related action in determining whether it was impracticable or
futile to bring [an] action to trial.” (Id. at p. 688.)
9
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 [“A merely
debatable ruling cannot be deemed an abuse of discretion”].)
DISPOSITION
The judgments are affirmed. Respondents are entitled to
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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