Opinion
B312586
11-07-2022
JACLYN JANG, Plaintiff and Appellant, v. LEE DONG JUN, Defendant and Respondent.
Jaclyn Jang, in pro. per., for Plaintiff and Appellant. Law Offices of S. Calvin Myung and S. Calvin Myung for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC583700 David Sotelo, Judge.
Jaclyn Jang, in pro. per., for Plaintiff and Appellant.
Law Offices of S. Calvin Myung and S. Calvin Myung for Defendant and Respondent.
STRATTON, P. J.
The trial court dismissed Jaclyn Jang's complaint against Lee Dong Jun pursuant to Code of Civil Procedure section 583.360 because Jang did not bring the action to trial within five years as required by section 583.310. Jang appeals, arguing the court should have excluded from the five years the periods of time during which void default judgments were in place, and all time after April 14, 2020. We affirm the judgment of dismissal.
Further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Jang filed her complaint against Jun on June 2, 2015. At Jang's request, a default judgment was entered against Jun on January 25, 2016. Later that year, Jang moved to set aside the default judgment she had obtained on the ground that she had failed to serve the complaint on Jun in a manner compliant with the Hague Convention for International Service of Process and was therefore unable to enforce the judgment against him. On June 29, 2016, the default judgment was set aside because it was void for improper service.
Jang served Jun again and then, when he did not respond, she requested a default judgment. On December 23, 2016, the trial court reinstated the default judgment against Jun.
In 2018, Jun moved to set aside the default judgment on the ground that it was void because Jang had, again, failed to properly serve the summons and complaint on him.
On March 28, 2019, the court set aside the default judgment. Jun answered the complaint on April 25, 2019. At a case management conference on May 2, 2019, the trial court set a trial date of April 14, 2020.
Due to the Covid-19 pandemic, on March 20, 2020, the trial court continued the trial to April 23, 2020, on its own motion. On April 1, 2020, the court continued the trial to August 31, 2020, again on its own motion.
During a telephonic hearing on August 31, 2020, the court took the jury trial and final status conference off calendar. The court set a trial setting conference for January 21, 2021.
There is no reporter's transcript or settled statement in this case. The minute order from the date of this hearing does not indicate that Jang objected to scheduling the trial setting conference for January 21, 2021 or attempted to secure an earlier trial date.
At a telephonic hearing on December 3, 2020, Jang's counsel was disqualified. In its minute order from that date, the court instructed counsel to "meet and confer regarding calculations of the 5-year statute and the 6-month addition due to the pandemic so that the issues can be further discussed during the 1/21/21 hearing."
Jang's new counsel appeared via video at the hearing on January 21, 2021, the date set for the trial setting conference. On its own motion, the court continued the conference to February 25, 2021, and instructed the parties to meet and confer concerning the five-year rule for bringing a case to trial.
Jang filed a memorandum with the court arguing the time period from December 23, 2016, through March 28, 2019, when the reinstated default judgment was in place, effectively stayed the proceedings and made it impossible to bring the matter to trial, and therefore should be excluded from the calculations for the five-year rule. Jang also argued that the pandemic-related general orders of the court tolled the five-year period from April 14, 2020, to the then-present day (February 8, 2021).
At the trial setting conference on March 5, 2021, the trial court dismissed the action. The court concluded that the five-year rule was tolled by six months as a result of the Judicial Council's Emergency Rule 10, which extended the time during which civil cases filed before April 6, 2020, had to be brought to trial from five years to five years, six months. But the court refused to exclude the time during which the default judgments were in place. It rejected Jang's argument that the statutory period was tolled because the default judgments were null and void as a matter of law. Additionally, the court observed Jang was solely responsible for the void judgments and for the delay in getting the case to trial. As the case was not brought to trial within five years six months of the date it was filed, the court dismissed the action with prejudice. Jang appeals.
DISCUSSION
I. Applicable Law
Section 583.310 requires an action be brought to trial within five years after the action is commenced against the defendant. Otherwise, dismissal of the action is "mandatory and . . . not subject to extension, excuse, or exception except as expressly provided by statute." (§ 583.360, subd. (b).) However, "in computing 'the time within which an action must be brought' [to trial], courts must exclude certain periods of time . . . during which '[b]ringing the action to trial . . . was impossible, impracticable, or futile.'" (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1108 (Gaines); § 583.340(c).) In order" '[f]or the tolling provision of section 583.340[, subdivision (c)] to apply, there must be "a period of impossibility, impracticability or futility, over which plaintiff had no control,"' because the statute is designed to prevent avoidable delay." (Gaines, at p. 1102.)
"[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.' [Citations.] A plaintiff's reasonable diligence alone does not preclude involuntary dismissal; it is simply one factor for assessing the existing exceptions of impossibility, impracticability, or futility." (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730-731 (Bruns).) "Determining whether the [section 583.340,] subdivision (c) exception applies 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.'" (Id. at p. 731.)
The plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340, subdivision (c) exception. The reasonable diligence standard is an appropriate guideline for evaluating whether it was impossible, impracticable, or futile for the plaintiff to comply with the statutory five-year constraint due to causes beyond his or her control. 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. (Bruns, supra, 51 Cal.4th at p. 731.)
II. The Default Judgments and the Five-Year Rule
The trial court ruled the periods of time during which the default judgments were in place should not be excluded from the calculation of time for the purposes of the five-year rule. Examining the facts of the case, the court concluded that (1) because the default judgments were void on their face for improper service, they were a nullity, and they did not make it impossible, impracticable, or futile to bring the case to trial; and (2) since Jang was solely responsible for the void default judgments and the delay they occasioned, she should not be permitted to take advantage of the delay she improperly created. Accordingly, the court concluded that the tolling provision of section 583.340, subdivision (c) did not apply.
Jang argues the California Supreme Court held in Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424 (Howard) that the time during which a default judgment is in place may not be considered in calculating time pursuant to the five-year rule because it is impossible to bring a case to trial while a default judgment is in place. But the Supreme Court stopped short of declaring a blanket rule in Howard. Instead, the court stated, "[T]here are some circumstances in which it can be said almost invariably that the exception applies. Such is the case when a default judgment has been entered in favor of the plaintiff, effectively bringing the litigation to a standstill." (Id. at p. 438.) The blanket rule Jang urges would be inconsistent with the case-specific analysis required to determine whether the section 583.040, subdivision (c) exception applies: the 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.'" (Bruns, supra, 51 Cal.4th at p. 730, italics added.) This determination is "generally fact specific, depending on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles." (Howard, at p. 438.)
Although the Supreme Court in Howard did not identify specific circumstances that would fall outside the "almost invariabl[e]" rule regarding defaults, one possibility is suggested by Langan v. McCorkle (1969) 276 Cal.App.2d 805, 807-808, disapproved on other grounds in Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 560, fn. 13. There, it was argued that the default judgment was void on its face, but the Langan court found the judgment "was voidable and not void [citation], and therefore its entry cannot be deemed a nullity." (Langan v. McCorkle, at p. 807.) We need not decide whether a void default judgment may ever afford a basis for suspending the running of the period while it is in effect, because the determination whether the impossibility exception applies is a case-by-case factual determination, and as discussed below, the court did not abuse its discretion in concluding that the exception did not apply here.
We conclude the court did not abuse its discretion. The impossibility exception to the five-year rule is designed to prevent avoidable delay, and therefore for the exception to apply there must be"' "a period of impossibility, impracticability or futility, over which plaintiff had no control." '" (Gaines, supra, 62 Cal.4th at p. 1102.) The court considers a plaintiff's reasonable diligence in overcoming the obstacles to prosecuting the action in order to"' "evaluat[e] whether it was impossible, impracticable, or futile for the plaintiff to comply with [the statutory five-year constraint] due to causes beyond his or her control." '" (Bruns, supra, 51 Cal.4th at p. 731.) As the trial court noted, Jang herself was the sole cause of the obstacles she faced in bringing this case to trial: not only did she twice fail to serve Jun properly, she twice obtained invalid default judgments based upon that improper service, leading to a needless delay of approximately two years, four months in bringing the case to trial-nearly half the time allowed by law to do so. Moreover, the record shows the void default judgments did not make it impossible for Jang to proceed with the litigation: she herself successfully moved to vacate the first void default judgment when she realized she would not be able to enforce it. She could have moved to vacate the second void default judgment as well. As the delays occasioned by the void default judgments were entirely attributable to Jang and not to causes outside her control, the trial court did not abuse its discretion in declining to exclude from the five years the time periods in which the default judgments were in effect.
III. The Impact of the Covid Pandemic on the Five-Yea Rule
Adopted by the Judicial Council in light of the Covid pandemic, Emergency Rule 10 provides, "Notwithstanding any other law, including Code of Civil Procedure 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. Rules of Court, appen. I, Emergency rule 10(a).) Therefore, for this case that was originally filed on June 2, 2015, the time period during which the case was required to be brought to trial was extended to December 2, 2020.
Jang argues that nine administrative orders issued by the presiding judge of the Los Angeles Superior Court in 2020 continued all civil cases and precluded her from bringing her case to trial. Jang lists the administrative orders, describing only some of them, and then asserts "[t]he five year period has been tolled from April 14, 2020 to the present." But she fails to present any argument as to how, and for which specific time periods, these orders made it impossible for her to bring the matter to trial or caused the five-year period to be tolled. "We are not obligated to make arguments for [a party] and may and do disregard conclusory arguments failing to disclose the reasoning by which [the party] reached the conclusions they ask us to adopt." (KCSFV I, LLC v. Florin County Water Dist. (2021) 64 Cal.App.5th 1015, 1031.) It was Jang's duty to request a timely trial date. (Howard, supra, 10 Cal.4th at p. 436.) Jang has neither demonstrated that she made any effort to move the case to trial as the five-year, six month deadline approached nor has she established that the period during which it was impossible for her to bring her case to trial extended past the five years, six months provided by Emergency Rule 10(a) of the California Rules of Court.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: GRIMES, J., WILEY, J.