Opinion
A152626
07-11-2018
TIMOTHY DEWITT Plaintiff and Appellant, v. HSBC BANK USA, N.A. et al., Defendants and Respondents
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-12-520809)
Plaintiff Timothy DeWitt appeals a judgment dismissing his lawsuit against defendants HSBC Bank USA, N.A. (HSBC), James Leasure, and Sparks Network USA, LLC (Sparks), following its grant of defendants' motion to dismiss for failure to bring the matter to trial within five years. (Code Civ. Proc., § 583.310 and 583.360(a).) We shall affirm.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
BACKGROUND
We discuss the facts only as necessary to an understanding of the analysis.
On May 15, 2012, DeWitt, an attorney acting in propria persona filed his complaint for damages and declaratory relief against two defendants (the named defendants) and 100 Doe defendants, alleging violations of the California Anti-Spam Act (Bus. & Prof. Code, § 17529.5) and related causes of action. On December 12, 2013, four days before the scheduled trial date, plaintiff settled with the two named defendants. On December 16, 2013, the court removed the case from the Master Jury Calendar. On December 18, 2013, DeWitt filed a notice that he had served a new party as one of the Doe defendants and that therefore, the entire case had not settled. In January 2015, DeWitt was granted permission to name new defendants to his original action as Does, including HSBC, Leasure and Sparks. DeWitt filed an amendment to the complaint, designating Doe defendants and simply inserting the names of HSBC, Leasure and Sparks in place of the references to Does 6, 3 and 1. The amendment changed neither the complaint's causes of action nor its substantive allegations.
In April and August 2015, the court granted motions to quash service of two Doe defendants, IAC and E-Harmony. DeWitt appealed these orders, which we affirmed in two nonpublished opinions filed on April 28, 2017. In March, 2017, the court granted a motion by HSBC to compel further discovery responses and awarded monetary sanctions of $5,510 for DeWitt's unjustified refusal to provide substantive responses. On April 7, 2017, DeWitt appealed the discovery orders. Only the monetary sanctions award was appealable. (§ 904.1, subd. (a)(12)); Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432 ["There is no statutory provision for appeal from an order compelling compliance with a discovery order."].) We recently affirmed that sanctions order in an unpublished opinion. (DeWitt v. HSBC Bank, N.A. (June 22, 2018, A151545) [nonpub. opn.].)
DeWitt v. Crazy Protocol Communications, Inc. (April 28, 2017, A145469 & A146626 [nonpub. opns.]).
On July 5, 2017, the court set a trial date for February 13, 2018. HSBC objected on the grounds that it was preparing a motion to dismiss based on the five year statute (which had run on May 15, 2017) and that DeWitt had not provided the discovery as ordered by the court. HSBC expressly reserved all its rights to assert mandatory dismissal under the five-year statue. On July 18, 2017, HSBC moved to dismiss the action pursuant to sections 583.310 and 583.360, subdivision (a) for failure to bring the action to trial within the statutory period. Leasure and Sparks filed joinders to the dismissal motion. Following briefing and oral argument, the trial court granted the motion to dismiss. This appeal followed.
The order dismissing the action as to Sparks was not entered until October 5, 2017, approximately 10 days after the appeal. A notice of appeal filed after rendition of the judgment, albeit before entry, is valid. (Cal. Rules of Court, rule 8.104 (e); Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group, 2018) ¶¶ 3:8, 3:52, pp. 3-7, 3-27.)
DISCUSSION
A. The Statutes
Section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.330 provides: "The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means: [¶] (a) By written stipulation. The stipulation need not be filed but, if it is not filed, the stipulation shall be brought to the attention of the court if relevant to a motion for dismissal. [¶] (b) By oral agreement made in open court, if entered in the minutes of the court or a transcript is made. No such stipulation or agreement was made here.
Section 583.340 provides: "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."
DeWitt does not contend the jurisdiction of the court to try the action was suspended, nor does he contend the court stayed or enjoined prosecution or trial of the action. The determination whether bringing the action to trial was impossible, impracticable or futile "requires a fact-sensitive inquiry and depends 'on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles.' [Citation.]" (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731 (Bruns).) We review the trial court's determination of that question for abuse of discretion. (Ibid.; Perez v. Grajales (2008) 169 Cal.App.4th 580, 590-591 (Perez).) B. Amendments to Name Doe Defendants "Related Back" to Initial Filing
Contrary to DeWitt's claim, calculation of the five-year period did not begin upon filing of amendments to name Doe defendants. The trial court correctly determined that for purposes of the running of the five-year statute, the filing of the amendments to name HSBC, Leasure and Sparks as Doe defendants related back to the May 15, 2012 date of filing of the initial complaint. "The 'relation back' doctrine governing statute of limitations issues [citation] also governs 5-year dismissals—i.e., an amendment that does not change the cause of action sued upon 'relates back' and does not extend the 5-year period." (Weil & Brown, Cal. Prac. Guide Civil Procedure Before Trial (The Rutter Group 2018) ¶ 11:93.2; Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151; Brumley v. FDCC Calif., Inc. (2007) 156 Cal.App.4th 312, 325.) It is undisputed that the amendment to the complaint to add these Doe defendants did not change the substantive allegations of the complaint. C. The Action Was Not "Brought to Trial" by the Settlement with the Two Named Defendants
"A case is brought to trial if it has been assigned to a department for trial, it is called for trial, the attorneys have answered that they are ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings. [Citation.] In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn. [Citation.] None of this happened by the time defendants filed their motion to dismiss under section 583.340, more than five years after plaintiff filed the complaint." (Bruns, supra, 51 Cal.4th at p. 723.)
DeWitt cites no authority for his claim that settlement with the two named defendants "should count as 'bringing the case to trial' " against these remaining Doe defendants under section 583.310. The failure to cite authority forfeits this claim. (Eisenberg et al., Cal. Prac. Guide: Civil Appeals and Writs (The Rutter Group) ¶ 9:21, p. 9-6 ["the appellate court can treat as waived, forfeited or meritless any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority"]; see In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1004; Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817.) D. DeWitt's Appeals Did Not Toll the Five —Year Statute as to These Defendants
1. The court properly rejected DeWitt's claim that the two years during which he appealed the court's orders quashing service on other defendants should be excluded from the five-year statute as to defendants HSBC, Leasure, and Sparks. DeWitt argues that during the time appeals of the order quashing service on IAC and E-Harmony were pending, the court exercised her discretion not to set the matter for trial so that the defendants could better coordinate their defense for purposes of trial. The only citation for this assertion is DeWitt's own declaration. The record before us on this appeal contains no refusal to set the case for trial. Nothing beyond DeWitt's speculation supports his assertion that no trial date was set because it would be to defendant's advantage to coordinate their defense.
At oral argument on the dismissal motion, DeWitt acknowledged: "And I never said, 'Don't set it,' but it's occurred to me it's because these appeals are pending we have codefendants if they come back down for their benefit and these defendants' benefit. We'd like to keep them together in the event they come back down for trial and that was obvious to me at the time."
Assuming that DeWitt is correct that the court "exercised her discretion" not to set the matter for trial, that is far different from issuing a stay of proceedings, which never happened here. Taking judicial notice of the register of actions, the court observed, "DeWitt's appeals of orders granting motions to quash or discovery orders did not operate to stay the case and extend the five-year period. Nor do any of the exceptions to the computation of time under [section] 583.340 apply. [¶] . . . [¶] In this case the court never stayed this matter. . . . [¶] The court never ordered the trial date off calendar pending the outcome of any appeal, and the court never issued a stay of proceedings in this matter." Further, as the court recognized, it was DeWitt's responsibility as plaintiff to bring the case to trial within the five-year statute. If the trial court failed to set the date, it was DeWitt's responsibility to request that a trial date be set within the statutory period. (Perez, supra, 169 Cal.App.4th at pp. 589-590.)
The only two authorities cited by DeWitt on this issue are clearly distinguishable. In Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, the parties stipulated to a 120-day stay of the case two years into the action for purposes of mediation. The court entered a 120-day stay to allow mediation, but also ordered them to continue to respond to outstanding discovery, among other things. The Court of Appeal held the partial stay was not a complete stay, but was more like a continuance of the trial date. (Id. at p. 1093.) The period of the stay did not extend the five-year period for bringing the action to trial where plaintiffs failed to show it was "impossible, impracticable, or futile" (§ 583.340, subd. (c)) to bring the case to trial while the stay was in effect. (Gaines, at pp. 1094, 1100-1105.) It is unclear how this case helps DeWitt, as the Gains court held the order did not stay the action or toll the running of the five-year statue.
Holland v. Dave Altman's R.V. Center (1990) 222 Cal.App.3d 477, was a personal injury action in which the vehicle owned by the defendant was driven by a Swiss citizen codefendant. The Court of Appeal held the five-year statute was tolled during the appeal of an order quashing service on the Swiss codefendant, where the court had issued orders that effectively suspended the proceeding in all respects indefinitely during the pendency of the appeal. (Id. at pp. 482-483.) In Holland, the court also held it would have been impracticable to proceed without the codefendant, given the nature of the case, which was based on vicarious liability of the owner for the actions of the codefendant driver. (Id. at p. 483.) In the instant case, there was no order equivalent to a stay such as that issued by the trial court in Holland. Nor was there any issue of vicarious liability or other question of overlapping of evidence against the appealing Doe defendants IAC and E-Harmony and defendants here that would have made it "impracticable" to proceed to trial in their absence.
It is also clear there was no cessation of all proceedings in this action. As recognized in Bruns, supra, 51 Cal.4th 717, the tolling provision of section 583.340, subdivision (b) applies "only when a stay encompasses all proceedings in the action and does not include partial stays." (Bruns, at p. 723.)
Absent a stay or some order effectively suspending all proceedings indefinitely during the period of the appeal of the motion to quash, and absent any showing of diligence by DeWitt attempting to move the case along or to alert the court that the matter needed to be set for trial to avoid mandatory dismissal, we cannot conclude the court abused its discretion in failing to find that it was "impossible, impracticable, or futile" to bring the case to trial. (§ 583.340, subd. (c).)
2. Nor are we persuaded by DeWitt's claim that the motion to dismiss somehow sought to "minimize or undermine" DeWitt's then pending appeal of the discovery sanctions against him and in favor of HSBC. The appeal of those monetary sanctions did not automatically stay all proceedings below, and DeWitt does not so contend. None of the issues raised in that appeal would be mooted by our determination of this appeal, as the monetary discovery sanctions awarded were independent of dismissal of his claims against HSBC here. E. Defendants Were Not Equitably Estopped from Moving to Dismiss
DeWitt contends defendants were equitably estopped from moving to dismiss the action because HSBC objected to the trial date set by the court. "Equitable estoppel can be found only when (1) the party to be estopped was aware of the true facts; (2) that party either intended that its act or omission be acted upon, or so acted that the party asserting estoppel has a right to believe it was intended; (3) the party asserting estoppel was unaware of the true facts; and (4) the party asserting estoppel relied on the other party's conduct to its detriment. [Citation.]" (Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1422-1423.)
DeWitt ignores that the trial setting and HSBC's objection both occurred in July 2017—two months after the expiration of the five-year statute on May 15, 2017. As the trial court recognized, DeWitt could not have relied upon this objection to his detriment. Moreover, DeWitt was or should have been aware the five-year trial period ran on May 15, 2017, and that no stay had been granted or requested by him. Further, it was DeWitt's refusal to provide the discovery ordered by the court that forced HSBC to object to the trial date on that basis and because it wished to move for dismissal. The court did not abuse its discretion in finding no estoppel.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.