Opinion
G061148
08-22-2023
THOMAS J. HACKMAN, et al., Plaintiffs and Appellants, v. RIDGEMONT COMMUNITY ASSOCIATION et al., Defendants and Respondents.
Strongin Burger, Eric B. Strongin and Daniel J. Libbey for Plaintiffs and Appellants. Hanger, Steinberg, Shapiro &Ash, Paul V. Ash and Benson Y. L. Chan for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed.
Strongin Burger, Eric B. Strongin and Daniel J. Libbey for Plaintiffs and Appellants.
Hanger, Steinberg, Shapiro &Ash, Paul V. Ash and Benson Y. L. Chan for Defendants and Respondents.
OPINION
O'LEARY, P. J.
This appeal arises from a judgment entered after an order granting dismissal of a lawsuit based on the trial court's calculation of a statutory five-year deadline to commence trial. The appellants contend the court erred because it should have tolled more time. We affirm because appellants have not carried their burden to show the court abused its discretion by deciding they failed to justify an additional tolling period separate from those already granted.
FACTS I. General Context of Motion to Dismiss
Appellants Katelin and Thomas J. Hackman filed their initial complaint in this matter on January 12, 2016, against respondents Ridgemont Community Association, Accell Property Management, Inc. (collectively Ridgemont), and others. The Hackmans claimed they were injured by mold conditions at their condominium home as well as surrounding common areas managed by Ridgemont.
We do not discuss other individuals who were later added as coplaintiffs in this matter; they were not affected by the trial court order nor by the resulting judgment at issue in this appeal.
Ridgemont's motion to dismiss underlying this appeal was based on Code of Civil Procedure section 583.310 (all further undesignated statutory references are to this code), which sets a baseline five-year time limit for commencement of trial in a civil matter (the five-year deadline). The statute is one of six in article 3, chapter 1.5, title 8, part 2 of the Code of Civil Procedure (see §§ 583.310-583.360), all relating to the deadline and some about if and how it should be modified. Below, we quote the two specific statutes of the article governing this appeal.
The trial court's hearing on the dismissal motion was conducted on January 3, 2022, the same day trial had been scheduled to commence, following no less than five continuances. In total, five years and 358 days elapsed between the filing of the Hackmans' complaint and the dismissal motion hearing.
II. Events in 2020
In 2020, the coronavirus disease 2019 (COVID-19) pandemic caused temporary trial court closures that triggered an April 6, 2020 rule by the Judicial Council which stated: "Notwithstanding any other law, including . . . section 583.310, for all civil actions filed on or before April 6, 2020 [i.e., including the Hackmans' complaint], the time in which to bring the action to trial is extended by six months for a total of five years and six months." (Cal. Rules of Court, appen. I, emergency rule 10(a); see Gov. Code, § 68115 [emergency authority of Chairperson of the Judicial Council].) One month later, the trial court issued a May 6, 2020 order, sua sponte, that continued trial of this matter for 196 days, stating: "The Jury Trial in the above entitled action has been continued [from October 20, 2020 to April 12, 2021]" (the sua sponte order).
III. Four Trial Continuances in 2021
In 2021, the trial court continued the trial four more times, on January 21, June 21, September 10, and October 14, 2021 (all dates without mention of the year will refer to 2021). All but one of the continuances were initiated by the Hackmans, who changed counsel in August. The first order (on January 21) was based on a written stipulation by the parties. Among other points, they agreed the five-year deadline would "expire on July 12, 2021" (the stipulated deadline). The court approved the stipulationin the first order and continued trial to June 28.
Section 583.330, subdivision (a), provides in part: "The parties may extend the time within which an action must be brought to trial pursuant to this article . . .: [¶] . . . By written stipulation."
The second order (on June 21) was based on the Hackmans' claim they needed more time because of: their change of counsel, the ongoing COVID-19 pandemic, and their difficulty in securing medical records while "facilities had people working remotely." After considering Ridgemont's opposition, the trial court ruled the Hackmans had shown reasonable diligence and that the five-year deadline to commence trial was extended to, "at the least, October 25, 2021," the date the Hackmans had requested (the granted deadline). Trial was set to commence one month earlier, on September 27.
The third order (on September 10) was based on the Hackmans' claim they needed more time because their prior counsel had failed to retain an expert to "analyze the mold inspection reports, mold sample test results, and other documents related to the microbial growth [the Hackmans] were exposed to." Over Ridgemont's opposition, the trial court continued trial to October 18 (i.e., to commence seven days before the granted deadline).
Finally, the fourth order (on October 14) resulted in the final continuance of trial ordered in this matter, to January 3, 2022 - a date plainly beyond the granted deadline set by the second order. The Hackmans' underlying ex parte application for the continuance, as presented in the appellate record, did not request a modification of the five-year deadline. Notwithstanding, further tolling of the deadline was discussed at the hearing on the application but, according to an undisputed notice of the court's ruling at that hearing, the court made "no finding or determination as to whether or not the [t]rial date of January 3, 2022 is within the [five]-year statute as provided by . . . [s]ections 583.310 et seq." The Hackmans have not provided a copy of the court's actual minute order as part of the record, and there is no reporter's transcript of the hearing.
Then on December 2, 2021, Ridgemont filed the dismissal motion underlying this appeal. That is, according to the record presented, despite the parties' unresolved dispute in October about whether the granted deadline should be further modified as part of the Hackmans' request for another trial continuance, the Hackmans did nothing for seven weeks to address the issue prior to Ridgemont's dismissal motion.
The Hackmans filed an opposition to the dismissal motion, supported by a two and a half page declaration by their counsel. They argued that, in addition to the earlier modifications of the five-year deadline described above, the trial court should also toll the deadline for "11 months" (alternatively phrased as "341 days") because its courtroom had been "unavailable" between the sua sponte order and the order's continued trial date of April 12, 2021 (the claimed tolling period).
The trial court conducted a hearing for Ridgemont's dismissal motion in January 2022. After oral arguments, the court issued a minute order granting the motion. The court explained its decision in part as follows: "In opposition to the motion to dismiss, [the Hackmans] rel[y] on the continuance of the October 19, 2020 trial date [i.e., the sua sponte order] ....But, as noted above, the trial court was not unavailable during the time of the continuance, and [the Hackmans] could have reestablished an October 2020 trial date if they had so requested."
DISCUSSION
As they did in the trial court, the Hackmans base their argument for relief exclusively on section 583.340, subdivision (c), to assert "the trial court should have concluded that under the Five-Year rule, the last day to bring the matter to trial was June 13, 2022." They arrive at this date by adding to the stipulated deadline the claimed tolling period of 11 months. We ignore marginal discrepancies in their proposed calculation, given our discussion below.
I. Standard of Review and Governing Law
Section 583.310 states: "An action shall be brought to trial within five years after the action is commenced against the defendant." Relevant to this appeal, section 583.340 provides that "[i]n computing the time within which an action must be brought to trial pursuant to this article [i.e., containing the five-year deadline], there shall be excluded the time during which any of the following conditions existed: . . . [¶] . . . [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile."
The California Supreme Court has construed section 583.340, subdivision (c), as follows: "A circumstance . . . may . . . be excludable from the five-year period if the circumstance makes it 'impossible, impracticable, or futile' to bring the action to trial. [Citations.] . . . In deciding whether these exceptions are met, the court must consider '"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.]" (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 (Gaines); see § 583.130 ["the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter"].)
We agree with the parties the correct standard of review to apply is abuse of discretion. "'The question of impossibility, impracticability, or futility 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.' [Citation.]" (Gaines, supra, 62 Cal.4th at p. 1100, fn. ommitted.)
The Hackmans bore the trial court burden on Ridgemont's dismissal motion to prove section 583.340, subdivision (c), supported their tolling argument. (Gaines, supra, 62 Cal.4th at p. 1100.) For our constituent review for substantial evidence on the elemental facts (ibid.), we note that if an "'appeal turns on a failure of proof'" for an issue the appellant had the trial court burden on, the test is whether the evidence compels a finding in an appellant's favor as a matter of law (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838; Evid. Code, § 500).
In addition, we apply to the Hackmans' contention "three fundamental principles of appellate review: (1) a judgment [or order] is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) It is an appellant's burden to demonstrate prejudicial error. (Cal. Const., art. VI, § 13; In re Marriage of Dellaria &Blickman-Dellaria (2009) 172 Cal.App.4th 196, 204-205.)
II. Analysis
As noted, the Hackmans presented the trial court a two and a half page declaration by their counsel to support their contention that commencing trial during the entirety of the claimed tolling period was "impossible, impracticable, or futile." (§ 583.340, subd. (c).) Relevant to the contention, counsel asserted two paragraphs of information. The first stated in relevant part that "On May 6, 2020, the [c]ourt, of its own volition, continued trial for 11 months, to April 12, 2021. Attached hereto as Exhibit '1' is a true and correct copy of the [c]ourt's minute order continuing trial to April 12, 2021[, i.e., the sua sponte order]."
Counsel's second relevant paragraph asserted: "Aggregating the period from the [c]ourt's continuance from May 6, 2020 to April 12, 2021 (11 months, or 341 days) and the six months of tolling pursuant to California Rules of Court, Emergency Rule 10, the five-year statute was tolled for nearly a year and a half. Because this action was filed on January 12, 2016, the deadline based on the original five-year statute of limitations would have been January 12, 2021. Therefore, because of the California Rules of Court, Emergency Rule 10 and the May 6, 2020 continuance, the five-year statute deadline should not be until roughly June of 2022."
The Hackmans frame the question for our appellate review as follows: "whether it was an abuse of discretion for the trial court to not subtract [its] 11-month sua sponte continuance from the five-year period." As noted, the court explained its reasoning for rejecting the Hackmans' argument in its minute order granting Ridgemont's dismissal motion. As further context for the portion of the order we already quoted above, the court further explained its ruling as follows: "[I]t was [the Hackmans'] duty to monitor the case, and ascertain whether any trial date reset by the court could be advanced. [The Hackmans] failed to take any action to reset the case for trial." The court recounted that, "effective September 1, 2020, the Superior Court of California County of Orange published its 'Process to Commence Civil Jury Trials,' which provided: 'Effective September 1, 2020, the court will implement a process to select cases to commence civil jury trials.' [Citation.] Per this process, '[c]ases that answer ready to commence trial will be placed on the [t]railing [t]rial list on the day set for trial,' and the [c]ourt would consider the [five]-year statutory requirement, in selecting cases to proceed. [Citation.] This process instructed parties seeking to commence trial to answer ready on the date currently set in order to be considered for selection." As an example of the conditions in October 2020, i.e., within the claimed tolling period, the court discussed a different civil case where a jury trial was conducted that month.
Based on the record and argument presented, we discern no abuse of discretion. The trial court's ruling contains no misstatement of the law and we reject the Hackmans' contention that the sua sponte order tolled the five-year deadline as a matter of law based on section 583.340, subdivision (c). They cite to cases about the proper calculation of multiple valid tolling periods, but mistakenly presume they have shown the validity of the claimed tolling period. The Hackmans assert that, "as a logical matter, the combination of the" sua sponte order "and the statements and findings" underlying the court's first and second orders "is enough to establish that [the Hackmans] were prevented from prosecuting the action to trial between May 6, 2020 through April 12, 2021 in spite of their reasonable diligence because the [COVID-19] pandemic made this impracticable if not impossible." But given the presented record shows the earlier court orders already modified the five-year deadline twice, through the stipulated deadline and granted deadline (established by the court's first and second orders, respectively), we are not persuaded the Hackmans have shown impossibility, impracticability, or futility.
As a factual matter, no evidence in the record the Hackmans present compels a conclusion that, in addition to times already accounted for by the trial court's first and second orders, other conditions between May 6, 2020, and April 12, 2021, sufficiently rendered commencement of trial either "impossible, impracticable, or futile." (§ 583.340, subd. (c).) Their counsel's supporting declaration to the court did not specify facts about courtroom availability that challenged the court's minute order recounting that, despite the sua sponte order, the court was generally available to advance the trial date in this matter so as to commence within the stipulated deadline and granted deadline. Indeed, the Hackmans' briefing on appeal does not dispute the recounting, nor do the Hackmans assert they tried to advance the trial date at any point. (See Gaines, supra, 62 Cal.4th at p. 1104 [citing no evidence plaintiff sought lift of stay or rescheduling of trial date].)
In sum, we are not persuaded by the Hackmans' contention that "there is no question that it was the [COVID-19] pandemic rather than [their] lack of diligence that led to the loss of the time between May 6, 2020 and April 12, 2021." They have not carried their burden to show the trial court abused its discretion when it decided they failed to justify an additional tolling period separate from those that had already been sought and granted.
DISPOSITION
The trial court's February 9, 2022 judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: SANCHEZ, J. DELANEY, J.