Opinion
G061657
03-14-2024
JOHN DUFFY et al., Plaintiffs and Appellants, v. REID A. WINTHROP et al., Defendants and Respondents
The Arkin Law Firm and Sharon J. Arkin for Plaintiffs and Appellants. The Vanderpool Law Firm, Douglas B. Vanderpool, Michael J. Fairchild and Brooke L. Bove, for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Nos. 30-2016-00857590 consol. W/ 30-2016-00857601 Craig L. Griffin. Affirmed.
The Arkin Law Firm and Sharon J. Arkin for Plaintiffs and Appellants.
The Vanderpool Law Firm, Douglas B. Vanderpool, Michael J. Fairchild and Brooke L. Bove, for Defendants and Respondents.
OPINION
MOTOIKE, J.
In June 2016, John and Laura Duffy (collectively, the Duffys) sued their former lawyers, Reid A. Winthrop and Winthrop Law Group (collectively, Winthrop), for legal malpractice. The Duffys did not bring their action to trial before the onset of the COVID-19 pandemic, during which an emergency rule was implemented extending by six months the five-year period in which an action must be brought to trial under Code of Civil Procedure section 583.310. (Cal. Rules of Court, append. I, emergency rule 10(a) (Emergency Rule 10(a))). After the Duffys failed to bring their case to trial within the then-governing mandatory, five-year, six-month period, the trial court granted Winthrop's motion to dismiss the action and entered judgment in favor of Winthrop.
All further statutory references are to the code of civil Procedure unless otherwise specified.
We affirm. For the reasons we will explain, we conclude: (1) Orange County Superior Court's April 1, 2020, supplemental implementation order did not extend the total time (five years six months) the Duffys had to bring their case to trial; (2) section 583.350 is inapplicable so it did not extend that total time period; (3) the trial court did not order a stay during the pendency of the Duffys' bankruptcy case; (4) the trial court did not abuse its discretion by rejecting the Duffys' argument it was impossible, impracticable, or futile under section 583.340, subdivision (c) for the action to have been timely brought to trial; and (5) the Duffys forfeited the argument the parties had stipulated to a stay under sections 583.340, subdivision (b) and 583.330.
BACKGROUND
I.
JUNE 2016-FEBRUARY 2020: THE DUFFYS COMMENCE THE INSTANT ACTION
On June 13, 2016, the Duffys initiated two separate malpractice actions against Winthrop. In the case management statement filed in advance of the March 9, 2018 case management conference, Winthrop stated "[t]he case has been put on hold while [the Duffys] ha[ve] sought new counsel," and "[u]ntil [the Duffys] retain[] new counsel, the case, including discovery, has been put on hold." According to the trial court's March 9, 2018 minute order, at the case management conference, the Duffys informed the court they filed for Chapter 7 bankruptcy. The court also set a review hearing for September 7, 2018 regarding the status of the Duffys' bankruptcy, ordered the Duffys to file notice of the bankruptcy, and ordered Winthrop to give notice of the court's ruling. Neither the court's minute order nor Winthrop's Notice of Bankruptcy Review Hearing suggested the court issued any stay of the action in light of the Duffys' mention at the case management conference that they had filed a bankruptcy case.
Also on March 9, 2018, the Duffys, who were self-represented at the time, advised Reid Winthrop they were retaining counsel who would be filing an amended complaint in each case "[b]efore Sept. 7." About a week later, the Duffys sent Reid Winthrop an e-mail stating "[i]n light of everything that is going on right now, we are requesting another 30 day extension" to complete "Fire Discoveries." Later that day, Reid Winthrop responded in an e-mail stating: "I propose that we mutually agree to extend all deadlines on both cases while you determine how you are going to proceed, in light of your bankruptcy filing. We should all agree that any [and] all discovery and motion deadlines on both cases . . . be extended pending notice from you that your bankruptcy proceedings have concluded. I intend to proceed on various fronts, but will hold off with the extensions in place. Once you provide notice, we can discuss deadlines for the service of discovery and filing of motions, if necessary."
On April 20, 2018, Laura Duffy e-mailed Reid Winthrop stating: "We are requesting an extension until May 1, 2018, this will be our last extension in getting these Fire discoveries to you." On May 1, 2018, the Duffys again e-mailed Reid Winthrop about "Fire discoveries," stating: "We are so very close to being done, but . . . we are requesting another week until May 8, 2018."
At no time in their communications regarding discovery did any party mention a court-ordered stay, much less suggest litigation activities should cease because the court had ordered such a stay.
On July 30, 2018, the bankruptcy court ordered "[a] discharge under 11 U.S.C. § 727 granted to: [¶] [the Duffys]." On August 9, 2018, the Duffys filed a "Notice of Bankruptcy and Discharge" in the instant action.
At the September 7, 2018 review hearing regarding the status of the Duffys' bankruptcy, the Duffys informed the court the pending bankruptcy case had been resolved. The court's minute order of that date states: "The Court orders bankruptcy stay lifted and Case Management Conference is set." (Boldface omitted.) The minute order further states: "At the request of [the Duffys] and no objection by [Winthrop], Case Management Conference is set to a date far enough for [the Duffys] to sell real property and retain legal counsel." The court ordered Winthrop "to give notice." In their notice, Winthrop stated a case management conference was set for February 15, and "[t]he stay that was in place in the case has been lifted." Litigation between the parties continued.
In July 2019, the Duffys retained counsel to represent them. In November 2019, the Duffys filed a first amended complaint in each case and the cases were ordered consolidated (collectively, the consolidated actions).
II.
2020: The COVID-19 Pandemic Impacts Civil Actions
On March 4, 2020, Governor Gavin Newsom declared a state of emergency in California due to the COVID-19 pandemic. Pursuant to orders issued by the Chief Justice and the Judicial Council, jury trials were suspended for 60 days and superior courts were authorized to issue implementation orders extending by no more than 60 days the statutory deadline for bringing a case to trial. (Judicial Council of Cal. Statewide Orders Mar. 23, 2020 &Mar. 30, 2020.)
On April 1, 2020, the Orange County Superior Court issued a supplemental implementation order "extend[ing] the time periods provided in Code of Civil Procedure section[] 583.310 . . . to bring an action to trial by 60 days from the last date on which the statutory deadline otherwise would have expired." (Super. Ct. Orange County, Supplemental Implementation Order Apr. 1, 2020 (the April 1, 2020 supplemental implementation order).) Days later, the April 1, 2020 supplemental implementation order was followed by the Judicial Council's statewide adoption of Emergency Rule 10(a) which extended by six months, the five-year period by which a civil action, filed on or before April 6, 2020, must be brought to trial under section 583.310.
Later that month, the Orange County Superior Court suspended "all civil trials, hearings, and proceedings" for a period of two months, excepting "time sensitive matters," and further ordered for trials in civil cases approaching the deadline to prosecute under section 585.310, as extended by Emergency Rule 10(a), be given priority. (Super. Ct. Orange County, Second Amended Administrative Order 20/06 Apr. 24, 2020.)
III.
2021-2022: The Trial Court Grants Winthrop's Motion to Dismiss After the Consolidated Cases Are Not Brought to Trial by December 14, 2021
One year later, in May 2021, the trial court set the consolidated cases for trial on February 7, 2022.
On January 25, 2022, Winthrop applied ex parte for an order to dismiss for failure to prosecute (§ 583.310) or, alternatively for an order shortening time, on Winthrop's motion to dismiss for failure to prosecute. The trial court issued a "complete stay" in the consolidated actions effective January 27, 2022; invited Winthrop to file an amended motion to dismiss the action; and ordered the stay to remain until the later date of April 18, 2022 (the scheduled hearing date on the motion), the date 30 days from the date the court issued its final ruling on Winthrop's amended motion to dismiss, or the commencement of trial as rescheduled for May 2, 2022. Winthrop thereafter filed a motion to dismiss the consolidated actions.
At the hearing on April 18, 2022, the trial court granted the motion. The court explained by operation of Emergency Rule 10(a), the Duffys had five years six months (e.g., until December 14, 2021) to bring the consolidated actions to trial but they did not do so. The court concluded neither section 583.350 nor any pandemic-related rules or orders identified by the Duffys applied to extend the deadline beyond December 14, 2021 and further concluded the Duffys failed to show bringing the action to trial, for any other reason, was impossible, impracticable, or futile during the pertinent period.
On June 15, 2022, the trial court's signed order of dismissal of the consolidated action without prejudice was entered. (See § 581d ["All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case"]; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1575.) On August 3, 2022, the Duffys timely filed a notice of appeal.
DISCUSSION I.
THE CONSOLIDATED ACTIONS HAD TO BE BROUGHT TO TRIAL BY DECEMBER 14, 2021
The trial court determined that, in light of Emergency Rule 10(a)'s six-month extension of the five-year period provided in section 583.310, the Duffys had until December 14, 2021 (five years six months from the date they initiated this action) to bring their case to trial. The Duffys do not dispute the trial court's calculation of the five year six month period under section 583.310 as extended by Emergency Rule 10(a). Instead, they argue the Orange County Superior Court's April 1, 2020 supplemental implementation order operated to extend that time period by another 60 days.
"A trial court's dismissal of an action for failure to prosecute under section 583.310 is generally reviewed for abuse of discretion. [Citation.] However, proper interpretation of statutes and court rules are issues of law, and in such instances we review the trial court's decision de novo." (Barron v. Santa Clara County Valley Transportation Authority (2023) 97 Cal.App.5th 1115, 1123.)
A. Overview of Section 583.310, the Chief Justice's March 30, 2020 Order, the April 1, 2020 Supplemental Implementation Order, and Emergency Rule 10
Section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." If an action is not brought to trial within the mandatory statutory time period, absent the applicability of an extension, excuse or exception expressly provided by statute, it "shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties." (§ 583.360, subds. (a), (b).)
In response to the COVID-19 pandemic, on March 30, 2020, the Chief Justice of the California Supreme Court and Chair of the Judicial Council issued an order authorizing superior courts to in turn issue implementation orders that, inter alia, "[e]xtend the time periods provided in sections 583.310 and 583.320 of the Code of Civil Procedure to bring an action to trial by no more than 60 days from the last date on which the statutory deadline otherwise would have expired." (Italics added.)
Section 583.320 is inapplicable as it sets forth the time limitation for again bringing an action to trial after a new trial is granted.
In response, the Orange County Superior Court issued the April 1, 2020 supplemental implementation order providing in part: "Exercising the authority granted by Governor Gavin Newsom's Executive Order N-38-20 and the March 30, 2020 Statewide Emergency Order of [the Chief Justice] . . . this Court hereby finds and orders the following additional measures: . . . [¶] . . . [¶] . . . The Court extends the time period provided in Code of Civil Procedure sections 583.310 and 583.320 to bring an action to trial by 60 days from the last date on which the statutory deadline otherwise would have expired." (Italics added.)
Acting on the authority granted it through the Governor's Executive Order N-38-20, on April 6, 2020, the Judicial Council adopted 11 "Emergency Rules Related to COVID-19," including Emergency Rule 10, which provided in part (a): "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." (Italics added; see E.P. v. Superior Court (2020) 59 Cal.App.5th 52, 55.)
B. Standard Rules of Statutory Construction Apply to the Interpretation of Emergency Rule 10(a), Which We Review De Novo
"The Judicial Council, of course, is the entity charged by the California Constitution with adopting statewide rules for court administration, practice, and procedure. (Cal. Const., art. VI, § 6; see also Gov. Code, § 68070, subd. (b); Cal. Rules of Court, rule 10.1.) The California Rules of Court '"have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions."' [Citation.] The rules applicable to interpretation of the rules of court are similar to those governing statutory construction. [Citation.] Under those rules of construction, our primary objective is to determine the drafters' intent." (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 125.)
"We independently review interpretations of California Rules of Court, applying the usual rules of statutory construction." (In re William M.W. (2019) 43 Cal.App.5th 573, 583) "'In determining such intent, we begin with the language of the statute itself. [Citation.] That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning.'" (People v. Standish (2006) 38 Cal.4th 858, 869.) "The plain meaning controls if there is no ambiguity in the statutory language." (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
C. The Interplay of Section 583.310, the Relevant Orders, and Emergency Rule 10(a) Provides Section 583.310's Five-year Time Period Was Extended to a Total Period of Five Years and Six Months
The consolidated actions were filed before April 6, 2020 and therefore Emergency Rule 10(a) applied to extend, by six months, section 583.310's five-year time period by which they must be brought to trial. The Duffys argue we should interpret the April 1, 2020 supplemental implementation order as providing an additional 60 days beyond the total five years six months' time period. The Duffys' argument fails.
The Chief Justice's March 30, 2020 Order vested authority in the superior courts to provide an extension of "no more than 60 days" to (1) the end of section 583.310's five-year period which begins to run at the commencement of the action, and (2) section 583.320's time periods for bringing a new trial. (Judicial Council of Cal. Statewide Order Mar. 30, 2020 (Chief Justice's March 30, 2020 Order.) After referencing those two statutes only, the Chief's Order authorized the extension of the applicable "statutory deadline." (Ibid., italics added.)
Issued within the scope of that limited authority, the April 1, 2020 supplemental implementation order provided a 60-day extension to section 583.310's five-year period from "the last date on which the statutory deadline otherwise would have expired." Nothing in the implementation order suggested its 60-day extension might run consecutively to any other extension provided by pandemic-related orders or rules, or otherwise; if it had, the implementation order would have exceeded the scope of the authority vested in the Orange County Superior Court by the Chief Justice.
The language of Emergency Rule 10(a) is also clear-it provided a statewide extension of the time under section 583.310 (e.g., five years) by six months, specifying "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." (Italics added.) The unambiguous language of Emergency Rule 10(a) is not open to the construction the Judicial Council intended on authorizing any additional extension of time by which a case must be brought to trial that would stretch beyond a total period of five years six months.
After the emergency rules were issued by the Judicial Council, on April 24, 2020, the Orange County Superior Court issued its Second Amended Administrative Order 20/06. (Super. Ct. Orange County, Second Amended Administrative Order 20/06 Apr. 24, 2020.) That order is consistent with our construction of Emergency Rule 10(a) as controlling with regard to a uniform state-wide maximum extension of section 583.310's five-year period, stating: "Trials approaching the 5 year or 3 year deadlines set forth in [Code of Civil] Procedure sections 583.310 and 583.320, and subject to California Rules of Court Emergency Rule 10, will be granted preference by separate minute order." Conspicuously absent from the order is any mention of the April 1, 2020 supplemental implementation order's prior 60-day extension of the five-year period which, having served its purpose until Emergency Rule 10(a) took effect, became subsumed within it.
In their opening brief, the Duffys argue: "Because the local order was effective prior to [Emergency Rule] 10, [Emergency Rule] 10 logically did not replace or supplant the 60-day period established by the Chief Justice's and Presiding Judge's Orders, but was in addition to it." The Duffys' argument directly contradicts the express language of Emergency Rule 10(a). That rule clarified that a litigant had "a total time of five years and six months" to bring the litigant's case to trial. (Emergency Rule 10, subd. (a), italics added.) Nothing in Emergency Rule 10 or in the superior court's orders support the construction Emergency Rule 10(a)'s six-month extension was intended to be an extension consecutive to whatever length of extension (of no more than 60 days) individual superior courts had implemented in response to the Chief Justice's March 23, 2020 order. Had the Judicial Council wanted the six-month extension period to be in addition to any superior court implementation order providing for an extension, it could have and would have said so.
The Duffys also argue their construction of consecutive extensions to the section 583.310 time period is "supported by a March 3, 2022 Judicial Council Order sunsetting the 60-day period, effective April 30, 2022." Their argument continues: "Thus, if [Emergency Rule] 10 had replaced or supplanted the 60-day period, there would be no need to sunset that period."
The Duffys have not requested that this court take judicial notice of the Judicial Council's March 3, 2022 order. Pursuant to Evidence Code sections 452, subdivision (c) and 459, we take judicial notice of the Judicial Council's March 3, 2022 Statewide Order on our own motion to reach the merit of the Duffys' argument.
Emergency Rule 10(a) did not necessarily replace the April 1, 2020 supplemental implementation order. When it became effective five days after the April 1, 2020 supplemental implementation order, it simply extended the outer time limit by which a case must be brought to trial, from a period of five years and 60 days after the case was initiated to a total period of five years six months after the case was initiated. Arguably, the April 1, 2020 supplemental implementation order's 60-day extension provision remained relevant for any case that would have reached the end of the five-year term just before Emergency Rule 10 became effective.
In any event, in the Chief Justice's March 3, 2022 Judicial Council Order, the Chief Justice explained that as a result of the state moving from the pandemic stage of COVID-19 to a new endemic stage, the Governor had then recently signed Executive Order N-04-22 setting termination dates for many executive orders he issued in response to the COVID-19 pandemic. Those orders included Executive Order N-38-20, which suspended Government Code section 68115 and any other provision of law that imposed or implied a limitation on the Chief Justice's authority "to take any action she deemed necessary to maintain the safe and orderly operation of that court" via emergency order or statewide rule. Executive Order N-38-20 thus authorized the Chief Justice's March 30, 2020 order, which in turn authorized the April 1, 2020 supplemental implementation order. It therefore makes sense the Chief Justice would formally rescind orders that were based on an executive order that was scheduled to terminate imminently. None of these procedural developments support the Duffys' argument that, notwithstanding the express language of Emergency Rule 10(a), they had five years six months, plus 60 days within which to bring their case to trial.
II.
SECTION 583.350'S SIX-MONTH EXTENSION DID NOT APPLY
The Duffys argue the trial court erred by dismissing the consolidated action because section 583.350 provided an exception, adding another six months to section 583.310's five-year period as already extended six months by Emergency Rule 10(a). Section 583.350 provides: "If the time within which an action must be brought to trial pursuant to this article is tolled or otherwise extended pursuant to statute with the result that at the end of the period of tolling or extension less than six months remains within which the action must be brought to trial, the action shall not be dismissed pursuant to this article if the action is brought to trial within six months after the end of the period of tolling or extension."
Sections 583.310 through 583.360 are in Article 3 of Part 2, Title 8 of the Code of Civil Procedure.
This argument was addressed and rejected in Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823 (Ables). In Ables, the plaintiff initiated her action in July 2015, and after conducting discovery for a few years, in November 2019, she requested a continuance of the trial date. (Id. at p. 826.) The court continued the trial date to March 2021-a date over five years seven months from when the plaintiff first filed her complaint. (Ibid.) The defendants moved to dismiss the action under section 583.310 for the plaintiff's failure to prosecute within five years. (Ables, at p. 826.) In opposing the motions, the plaintiff argued the application of Emergency Rule 10(a) entitled her to an additional six months under section 583.350 in which to bring the matter to trial, thus giving her a total time of six years to bring the case to trial after filing. (Ables, at pp. 826-827.) The trial court rejected this argument and granted the motions to dismiss. (Id. at p. 827.)
The appellate court affirmed. (Ables, supra, 74 Cal.App.5th at p. 826.) The court explained: "The Judicial Council of California adopted emergency rule 10(a). That rule is located in appendix I of the California Rules of Court. Because they are enacted by the Judicial Council and not by the Legislature, the California Rules of Court are not statutes." (Id. at p. 827.) The court held: "Because emergency rule 10(a) is not a statute but an administrative rule, it did not extend Ables's deadline pursuant to statute and did not trigger section 583.350's extra six-month period. Ables's failure to establish a statutory 'extension, excuse, or exception' is fatal to her appeal, and the trial court properly dismissed her case. (See § 583.360, subd. (b) [dismissal for failure to bring an action to trial within specified time is 'mandatory and . . . not subject to extension, excuse, or exception except as expressly provided by statute'].)" (Id. at p. 828, fns. omitted.)
We agree with the reasoning and holding of Ables. We conclude that because Emergency Rule 10 is not a statute, it did not extend section 583.310's five-year period "pursuant to statute" within the meaning of section 583.350. Consequently, section 583.350 is inapplicable.
In their opening brief, the Duffys argue the six-month extension provided by Emergency Rule 10 should be construed as one "'pursuant to statute'" within the meaning of section 583.350 because the Judicial Council's adoption of Emergency Rule 10 was itself authorized by statute. Specifically, they argue Emergency Rule 10 came into existence by virtue of Government Code section 68115, subdivision (a)(6), which authorized the Judicial Council to extend section 583.310's time period in the event of an epidemic, and former Government Code section 68119 which they argue "confirm[ed] and authoriz[ed] the provisions of Executive Order N-38-20."
The Duffys' broad interpretation of section 581.350's phrase "pursuant to statute" in section 581.350 would result in the exception set forth in that statute swallowing the rule. The logical extension of the Duffys' argument is that any rule of court, regulation, local ordinance, or even arguably an individual trial court's ruling, could qualify as authority "pursuant to statute" as long as it could trace its origin to a statute, and thereafter be used not only to trigger section 581.350's six month extension but to potentially eviscerate the mandatory five-year period of section 581.310 itself. Such an interpretation would be contrary to clear Legislative intent; the Duffys provide no authority showing otherwise. We find no error.
III.
THE TRIAL COURT NEVER STAYED THE ACTION BECAUSE OF THE DUFFYS' BANKRUPTCY FILING
Citing section 583.340, subdivision (b), the Duffys argue the trial court erred by dismissing the consolidated actions because in 2018, the court had issued a stay for 197 days following the Duffys' bankruptcy filing. 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: [¶] . . . [¶] (b) Prosecution or trial of the action was stayed or enjoined."
Our record, however, does not show the trial court ever ordered a stay due to any bankruptcy filing. At the March 9, 2018 case management conference, the Duffys informed the court they had filed for Chapter 7 bankruptcy. The court ordered the Duffys to file a notice of the bankruptcy and set a review hearing on September 7, 2018 to review the status of any such proceeding. There is no evidence of the court imposing a stay of the action; neither the court's minute order nor Winthrop's notice of the scheduled bankruptcy review hearing referred to any stay.
Notably, the Duffys never filed that notice of bankruptcy in the trial court. Instead, on August 9, 2018, they filed a copy of the bankruptcy court's notice of discharge in their Chapter 7 case.
The court's minute order from the September 7, 2018 review hearing notes the Duffys informed the court their bankruptcy case had been resolved. The court's minute order thereafter states: "The Court orders bankruptcy stay lifted and Case Management Conference is set." (Boldface omitted.) Based on that statement, the Duffys assert there had been a 197-day stay in place up until that date, notwithstanding the dearth of any suggestion the trial court had imposed any form of a stay before that hearing.
In opposition to Winthrop's motion to dismiss, the Duffys argued that as a result of a 197-day stay, section 583.310's time period was tolled by the length of the stay. The trial court rejected the argument, stating: "[T]he evidence does not support the claim that any stay was ordered in this case. The reference in the 9/7/18 [minute order] shows only that any related stay was lifted-not that one had been entered. Nor is an action brought by a debtor stayed or tolled by the filing of a bankruptcy petition. (See Launton v. Carnation Co. (1989) 215 Cal.App.3d 161, 163-165.)
In their opening brief, the Duffys acknowledge "the trial court correctly concluded that the bankruptcy of a plaintiff does not impose an automatic stay on state court litigation, as confirmed in Lauriton."
We find no error. It is fundamental that on appeal "(1) a judgment 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.) The Duffys have failed to show the trial court ever ordered a stay in 2018, or that the trial court was incorrect in its explanation its statement that a stay was lifted did not presuppose the existence of a stay in the first place. They did not, for example, offer any declaration of a witness to the trial court ordering a stay.
As pointed out by the trial court, the record otherwise supports the finding no stay was imposed. The nature and substance of the parties' discovery discussions immediately following the March 9, 2018 case management conference and before the bankruptcy's order of discharge, coupled with the Duffys' notice to Winthrop they intended to file amended complaints by September 7, were inconsistent with their understanding the court had ordered some form of stay.
Furthermore, it may have been unlikely for the trial court to have issued a stay before receiving proof of the pendency of the Duffys' bankruptcy action. As discussed ante, the Duffys did not file a notice of bankruptcy. The first proof they offered the court of their bankruptcy case was in August 2018 when they notified the court of the bankruptcy's order of discharge.
In their opening brief, the Duffys argue for the first time "Winthrop should be judicially estopped from asserting there was no bankruptcy stay given his repeated representations to the Duffys and the court that there was one." In support of their argument, they cite the notice of the then-newly scheduled case management conference given following the September 7, 2018 review hearing, in which Winthrop stated, "[t]he stay that was in place in the case has been lifted." They also cite the following statement in Winthrop's request for judicial notice in support of a motion to compel discovery, filed October 22, 2018: "This case was stayed due to Plaintiffs' bankruptcy on March 9, 2018. (ROA Nos. 90-92.)"
The doctrine of judicial estoppel simply does not apply here. "'"'Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] . . . '" [Citation.] The doctrine applies when "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake."'" (People v. Castillo (2010) 49 Cal.4th 145, 155, italics omitted.) "[J]udicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary." (MW Erectors, Inc. v. Niederhauser Ornamental &Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422, italics omitted.)
Even if we were to assume the judicial estoppel doctrine might be relevant to the resolution of the issues presented in this appeal, and even if we were to further assume the first four elements ante were satisfied as a matter of law, there is nothing in our record showing Winthrop's errant statements were the product of anything other than ignorance, fraud or mistake. We find no error.
IV.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FINDING SECTION 583.340, SUBDIVISION (C) INAPPLICABLE
The Duffys argue the trial court erred by dismissing the consolidated actions because bringing the consolidated cases to trial by December 14, 2021 was impossible, impracticable, or futile within the meaning of section 583.340, subdivision (c). Section 583.340, subdivision (c) 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: [¶] . . . [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile."
In Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730-731 (Bruns), the California Supreme Court explained: "Under 583.340(c), 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. [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. [Citation.] '"[E]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation." [Citation.]' [Citation.] 'Time consumed by the delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions.' [Citation.] Determining whether the 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.' [Citation.] '"[I]mpracticability and futility" involve a determination of "'excessive and unreasonable difficulty or expense,'" in light of all the circumstances of the particular case.'
"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.' The plaintiff bears the burden of proving that the circumstances warrant application of the . . . exception. [Citation.] '"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."' [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." (Bruns, supra, 51 Cal.4th at pp. 730-731 (Bruns) (first italics added); see Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240, 247 (Oswald) ["As the question of impossibility, impracticability, or futility is ultimately a question of fact, it is 'best resolved by the trial court'"].)
In its minute order granting Winthrop's motion to dismiss the consolidated actions, the trial court considered and rejected the Duffys' argument under section 583.340, subdivision (c), stating: "[The Duffys] have also failed to show that bringing the action to trial, for any other reason, was 'impossible, impracticable, or futile' during the pertinent period. They have not shown that they attempted to get a trial date before the deadline, which defeats this claim. (See Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1421-1422.) Evidence showing that discussions were occurring as to discovery or trial preparation are insufficient to avoid that result."
In their opening brief, the Duffys cite the "time frame in which no civil jury trial occurred, i.e., March 2020 to February 2021, [which] consumed nearly 11 months[,]" and that only a limited number of courtrooms were available after in person jury trials resumed, to argue: "Even though [Emergency Rule] 10 extended the five-year statute by six months that left almost four more months when it was . . . impossible, impracticable or futile to seek an in-person jury trial. Added to the [Emergency Rule] 10 extension, that means that the five-year statute in this case was tolled until at least March 2022."
But "[t]he unavailability of courtrooms for trial does not automatically lead to a finding of an impossible or impractical circumstance under section 583.340(c). Rather, the trial court is tasked with determining the extent to which the unavailability of courtrooms for trial interfered with a plaintiff's ability to '"mov[e] the case to trial" during the relevant period[s].'" (Oswald, supra, 97 Cal.App.5th at p. 248.)
Here, the Duffys have made no showing the period during which courtrooms had limited or no availability interfered with their ability to move their case to trial during that time. Significantly, and dispositively, the Duffys have not shown they were ever ready for trial by December 14, 2021. (See Oswald, supra, 97 Cal.App.5th at p. 248 ["We will not accept plaintiffs' repeated invitation to adopt the absurd rule that time to commence trial is tolled under section 583.340(c) whenever a courtroom is not available for trial without consideration of a plaintiff's readiness for trial"].)
According to the declaration of the Duffys' attorney, the Duffys "continued to propound discovery and respond[] to discovery and both brought and opposed discovery motions even after May 21, 2021." Furthermore, the Duffys acknowledge in their opening brief their "case was vigorously litigated during the last two years, and especially during the last 11 months of the case."
The trial court therefore was within its discretion to determine courtroom closures did not make it impossible or impractical for the Duffys to timely commence trial and to conclude the Duffys' failure to timely bring the consolidated cases to trial was due to a lack of a reasonable diligence. (See Oswald, supra, 97 Cal.App.5th at p. 248 ["plaintiffs' failure to timely commence trial was due to a lack of reasonable diligence, i.e., they were never ready for trial during the relevant periods"].)
Citing their attorney's declaration, the Duffys state that at the May 7, 2021 case management conference, the trial court set the matter for trial on the first available trial date of February 7, 2022. They argue, as that date was outside the five year six month period, timely bringing the consolidated cases to trial was impossible, impracticable, and/or futile. But the trial court also had before it Reid Winthrop's declaration that had been submitted in support of Winthrop's ex parte application for an order of dismissal, which stated: "Plaintiff and his counsel had every opportunity to request a trial date within the 5 Year Rule, particularly at the last of many Case Management Conferences and trial settings on May 7, 2021, yet failed to do so. In fact, at the May 7, 2021 CMC, the Court raised the issue of the 5 Year Rule with [the Duffys' counsel] and offered her an opportunity to set the case for trial at any time. The Court did not limit its dates in any way. [The Duffys' attorney] requested February 7, 2021, as the trial date."
In any event, as discussed ante, the record does not show the Duffys were ready for trial before the expiration of the time period under section 583.310 as extended by Emergency Rule 10(a). We reject the Duffys' suggestion they were not responsible for keeping track of the time they were required to bring their case to trial. "'A plaintiff has an obligation to monitor the case in the trial court, to keep track of relevant dates, and to determine whether any filing, scheduling, or calendaring errors have occurred.'" (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1104 (Gaines).) "Plaintiffs cannot foist onto the court their responsibility to timely bring their case to trial. That obligation lies solely on plaintiffs, who bore the responsibility to identify any problems concerning the scheduling of the trial and seek an order rescheduling the trial date to a date within the allotted five and one-half years." (Oswald, supra, 97 Cal.App.5th at p. 250.)
Our record does not show that at the trial setting conference or otherwise, the Duffys raised any concern about the time limits of section 583.310, sought priority in trial setting because the consolidated cases were almost five years old, or otherwise requested an earlier trial date. Consequently, they have failed to make a showing any effort to timely bring the consolidated cases to trial was futile.
Finally, citing Winthrop's statement in a case management statement dated February 22, 2018 that the case had been "put on hold" while the Duffys sought new counsel, the Duffys argue the case was then tolled for some period of time within the meaning of section 583.340, subdivision (c). The trial court did not abuse its discretion by concluding no such tolling occurred. Even if Winthrop's vague statement suggested the parties might have reached some sort of agreement to hold off on discovery for an unspecified period of time, evidence in the record showed the Duffys thereafter continued to prepare responses to discovery and thus were not bound in any way to cease litigation activities. In any event, while Winthrop's statement suggested the parties either agreed or discussed agreeing to a temporary pause in discovery, it did not reflect the parties had entered into an understanding the five-year statute would be tolled accordingly. (See Gaines, supra, 62 Cal.4th at p. 1098.)
In sum, borrowing from the appellate court's decision in Oswald, supra, 97 Cal.App.5th at p. 251, "We recognize the COVID-19 pandemic has been an extraordinary event impacting every facet of society including the legal profession and the courts. However, the pandemic did not obviate the need for plaintiffs to pursue their action with some real degree of diligence. Because we see no abuse of discretion in the court's ruling finding no such diligence, we affirm the orders of dismissal. 'Our holding affords due deference to the trial court's unique ability to determine, based on all of the facts before it,' that plaintiffs did not show circumstances of impossibility or impracticability requiring tolling under section 583.340(c). (Gaines, supra, 62 Cal.4th at p. 1105.)"
V.
THE DUFFYS FORFEITED THE ARGUMENT THE PARTIES ENTERED INTO A STIPULATION UNDER SECTION 583.330
Finally, the Duffys argue dismissal was improper because the parties had stipulated to extending the time within which the consolidated actions must be brought to trial within the meaning of section 583.330. 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."
In their opening brief, in support of their section 583.330 argument, the Duffys state: "As reflected in the declaration of the Duffys' counsel in opposition to the motion to dismiss, and as nowhere contradicted by Winthrop, the February 7, 2022 trial date was selected as the first available date for a jury trial, and both plaintiffs' counsel and Winthrop not only agreed to that trial date, but waived notice of it." The Duffys, however, did not raise their section 583.330 argument in the trial court, and it is therefore forfeited.
Our record does not include a transcript of the March 7, 2021 trial setting conference. The determination of whether the parties entered into an agreement under section 583.330 requires the resolution of factual issues that are best resolved by the trial court. As discussed ante, the parties dispute whether they agreed to extend the time by which the consolidated actions had to be brought to trial. Because the Duffys failed to raise this argument in the trial court, depriving Winthrop the opportunity to respond with any relevant evidence and denying the trial court the opportunity to make relevant findings, it is forfeited on appeal.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.