Opinion
D066793
11-16-2018
BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.
Kirkland & Ellis, Michael J. Shipley, Sierra Elizabeth and Joseph M. Sanderson for Plaintiff and Appellant. La Follette, Johnson, DeHaas, Fesler & Ames, James J. Wallace II, Russell M. Mortyn, David J. Ozeran; Cole Pedroza, Kenneth R. Pedroza and Joshua C. Traver for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT (Super. Ct. No. GIS9465) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Reversed. Kirkland & Ellis, Michael J. Shipley, Sierra Elizabeth and Joseph M. Sanderson for Plaintiff and Appellant. La Follette, Johnson, DeHaas, Fesler & Ames, James J. Wallace II, Russell M. Mortyn, David J. Ozeran; Cole Pedroza, Kenneth R. Pedroza and Joshua C. Traver for Defendant and Respondent.
I.
INTRODUCTION
In 2002, Barry S. Jameson filed a complaint against Dr. Taddesse Desta asserting numerous claims, including breach of fiduciary duty (lack of informed consent) and professional negligence, stemming from Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated. In three prior appeals brought by Jameson, this court reversed judgments in favor of Desta, and remanded the matter for further proceedings on Jameson's claims. (See Jameson v. Desta (2013) 215 Cal.App.4th 1144 (Jameson III), Jameson v. Desta (2009) 179 Cal.App.4th 672 (Jameson II), Jameson v. Desta (July 2, 2007, D047824) [nonpub. opn.] opn. mod. July 26, 2007 (Jameson I).)
On remand from Jameson III, approximately one week prior to the commencement of a jury trial, Desta filed a motion to dismiss for lack of prosecution pursuant to Code of Civil Procedure section 583.310. On the morning of the first day of the trial, the trial court indicated that it would reserve ruling on Desta's motion to dismiss until after Jameson's presentation of his case. After the parties provided opening statements at an unreported jury trial, Desta orally moved for nonsuit on the ground that Jameson's opening statement demonstrated that he would be unable to establish his claims. The trial court granted the motion for nonsuit, and in the alternative, granted Desta's motion to dismiss. The court subsequently entered a judgment in favor of Desta.
That statute provides, "An action shall be brought to trial within five years after the action is commenced against the defendant."
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
On appeal, Jameson argued that the trial court erred in granting Desta's motion for nonsuit and his motion to dismiss, among other contentions. Jameson also claimed that the trial court erred in failing to have the trial proceedings recorded by a court reporter, given that Jameson was indigent and had been granted a fee waiver.
In our initial opinion in this appeal (Jameson v. Desta (2015) 241 Cal.App.4th 491, review granted Jan. 27, 2016, S230899 (Jameson IV)), we concluded that the trial court did not err in failing to have the trial proceedings recorded by a court reporter because neither the applicable statute nor rule of court appeared to mandate the provision of a court reporter to indigent persons who had obtained a fee waiver. (Jameson IV, at pp. 494-495.) We further concluded that Jameson could not demonstrate that the trial court erred in granting Desta's motion for nonsuit, because the record on appeal did not contain a reporter's transcript thus precluding us from being able to review the record for error. (Ibid.) In light of our conclusion, we did not reach the question whether the trial court erred in granting Desta's motion to dismiss pursuant to section 583.310. (Jameson IV, at p. 495, fn. 1.)
We expressed our sympathy to "the plight of litigants like Jameson whose incarceration and/or financial circumstances present such challenges," but concluded that "the rules of appellate procedure and substantive law mandate that we affirm the judgment . . . ." (Jameson IV, supra, 241 Cal.App.4th at p. 495.)
Upon review, the California Supreme Court concluded that the trial court "erred in failing to make an official court reporter available to [Jameson] upon request." (Jameson v. Desta (2018) 5 Cal.5th 594, 623.) The court further concluded that the error was prejudicial, reasoning in part, "without a record of plaintiff's opening statement we cannot determine whether the trial court's grant of a nonsuit at this early stage of the trial was substantively proper." (Id. at p. 625.) The Supreme Court reversed our judgment "insofar as it affirmed the trial court judgment in favor of [Dr. Desta] on the basis of the trial court's grant of a nonsuit related to [Jameson]'s opening statement." (Ibid.) The Court remanded the matter to this court to "address the validity of the trial court's alternative basis for entering judgment in favor of [Dr. Desta], namely that [Jameson]'s action was barred under . . . section 583.310 for failing to bring the matter to trial within five years." (Id. at pp. 625-626.)
The court summarized the reasons for its holding by stating:
"[W]e conclude that in order to satisfy the principles underlying California's in forma pauperis doctrine and embodied in the legislative public policy set forth in [Government Code] section 68630, subdivision (a), when a superior court adopts a general policy under which official court reporters are not made available in civil cases but parties who can afford to pay for a private court reporter are permitted to do so, the superior court must include in its policy an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings, which under current statutes would require the presence of an official court reporter. Because the challenged San Diego Superior Court policy at issue here lacks such an exception, we conclude the policy is invalid as applied to fee waiver recipients." (Jameson v. Desta, supra, 5 Cal.5th at p. 623.)
Upon remand, after receiving supplemental briefing from the parties, we conclude that the trial court erred in dismissing the matter pursuant to section 583.310. Accordingly, we reverse the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of the records in Jameson I, Jameson II, and Jameson III. (See Evid. Code, §§ 459 ["The reviewing court may take judicial notice of any matter specified in [Evid. Code, §] 452"], 452, subd. (d) [permitting a court to take judicial notice of the "[r]ecords of (1) any court of this state"].) Our factual and procedural background is based upon undisputed facts drawn from the record in this appeal and these prior appeals.
A. Jameson's complaint
On April 2, 2002, Jameson filed a complaint alleging eight causes of action, including breach of fiduciary duty (lack of informed consent) and professional negligence. In his complaint, Jameson alleged that that Desta negligently prescribed interferon to Jameson while Jameson was incarcerated. Jameson further alleged that the interferon caused him to suffer serious physical injuries, including irreversible damage to his eyesight. B. Jameson I
The superior court dismissed Jameson's complaint for lack of diligent service. On December 19, 2005, Jameson filed a notice of appeal. This court reversed the dismissal in Jameson I, supra, D047824. Our remittitur from Jameson I issued on September 26, 2007. C. Jameson II
On remand from Jameson I, the trial court dismissed the action due to Jameson's failure to appear at a telephonic case management conference in 2008. On May 12, 2008, Jameson filed a notice of appeal. This court again reversed the trial court's dismissal. (Jameson II, supra, 179 Cal.App.4th at p. 685.) The remittitur from Jameson II issued on February 16, 2010. D. Jameson III
Desta filed a motion for summary judgment on remand from Jameson II. The trial court granted Desta's motion on May 31, 2011. Jameson filed a notice of appeal from the summary judgment on June 16, 2011. We reversed the trial court's summary judgment in Jameson III, supra, 215 Cal.App.4th at page 1176. The remittitur from Jameson III issued on July 2, 2013. E. Desta's motion to dismiss for failure to bring the matter to trial
On remand from Jameson III, Desta filed a motion to dismiss for failure to bring the matter to trial pursuant to section 583.310 on April 21, 2014. Jameson filed a written opposition to the motion. Trial commenced on April 28, 2014. The trial court held a hearing on the motion to dismiss that same day. After Jameson gave his opening statement, Desta orally moved for nonsuit. After the hearing, the trial court granted the motion to dismiss and the motion for nonsuit. The court entered a judgment in favor of Desta. F. Jameson IV
Although dated April 24, 2014, the motion was not filed until May 5.
As discussed in part I, ante, this court affirmed the judgment on the ground that the lack of a reporter's transcript prevented Jameson from being able to demonstrate error on appeal. (Jameson IV, supra, 241 Cal.App.4th at p. 494.) In light of our conclusion, we did not consider whether the trial court properly granted the motion to dismiss. (Jameson IV, at p. 495, fn. 1.) G. Jameson v. Desta
In Jameson v. Desta, supra, 5 Cal.5th at pages 625-626, the Supreme Court reversed our judgment in Jameson IV and remanded the matter to this court for consideration of whether the trial court properly granted Desta's motion to dismiss, as outlined in part I, ante. H. Briefing on remand from Jameson v. Desta
On remand from the Supreme Court, the parties filed supplemental briefing on the issue of whether the trial court properly granted Desta's motion to dismiss.
III.
DISCUSSION
The trial court erred in granting Desta's motion to dismiss
Jameson claims that the trial court erred in granting Desta's April 21, 2014 motion to dismiss pursuant to section 583.310. Specifically, Jameson contends that the trial court's May 31, 2011 order granting Desta's motion for summary judgment constituted a "trial" for purposes of the five-year time limit for bringing an action to trial under section 583.310. Jameson further argues that Desta forfeited his right to seek dismissal of the action for any delay that occurred prior to the trial court's May 31, 2011 summary judgment by filing his motion to dismiss well after that date. Finally, Jameson argues that he complied with a separate statute, section 583.320, and that the trial court should have applied this statute rather than section 583.310 in determining whether Jameson's complaint was subject to dismissal. In support of this argument, Jameson notes that the undisputed facts establish that he brought the matter to trial in April 2014, which was well within three years of the issuance of the July 2013 remittitur of our opinion reversing the summary judgment (Jameson III, supra, 215 Cal.App.4th at p. 1176), as required under section 583.320.
Section 583.320 provides that if a judgment is reversed and remanded for a new trial, the matter must again be brought to trial within three years after the remittitur is filed by the clerk of the trial court.
Since Jameson's contentions all involve questions of law based on undisputed facts, we review his contentions de novo. (See, e.g., Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 951.)
1. Governing law
a. Applicable law governing mandatory dismissal for failure to bring an action to trial or retrial
Section 583.310 provides, "An action shall be brought to trial within five years after the action is commenced against the defendant."
Section 583.320 provides in relevant part:
"(a) If a new trial is granted in the action the action shall again be brought to trial within the following times: [¶] . . . [¶]
"(3) If on appeal an order granting a new trial is affirmed or a judgment is reversed and the action remanded for a new trial, within three years after the remittitur is filed by the clerk of the trial court."
" ' "A 'trial' within the meaning of [former] section 583 [current section 583.110 et seq.] is the determination of an issue of law or fact which brings the action to the stage where final disposition can be made." ' " (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.) "The grant of a motion for summary judgment on the law for lack of a triable issue of fact, like an order sustaining a demurrer without leave to amend, is a 'trial' for purposes of the dismissal statutes. (Southern Pacific Co. v. Seaboard Mills (1962) 207 Cal.App.2d 97, 104 [(Seaboard Mills)].)" (In re Marriage of Dunmore (1996) 45 Cal.App.4th 1372, 1377 (Dunmore).)
The statutes pertaining to dismissal for delay in prosecution were re-codified in 1984. (See Stats. 1984, ch. 1705, §§ 3-5, pp. 6176-6181.) We grant Jameson's unopposed September 6, 2018 request that we take judicial notice of the Law Revision Commission's Report discussing the re-codification, Revised Recommendation Relating to Dismissal for Lack of Prosecution (1984) 17 California Law Review Commission Reports 905. (See, e.g., Gund v. County of Trinity (2018) 24 Cal.App.5th 185, 199 [taking judicial notice of report of Cal. Law Revision Com.].)
b. Forfeiture of the right to seek dismissal for delay in prosecuting an action
California courts have repeatedly held that a party forfeits its right to seek dismissal of an action for delay in bringing a matter to trial by failing to file a motion to dismiss before the trial. (See Seaboard Mills, supra, 207 Cal.App.2d at p. 104 [stating that because defendant did not file motion to dismiss prior to summary judgment, "[t]he mandatory five-year provision of . . . [former §] 583 [current § 583.310], applying prior to trial can have no application"]; Butler v. Hathcoat (1983) 146 Cal.App.3d 834, 840 (Butler) ["Where, as here, the litigation not only 'progressed to such an advanced stage before a request for dismissal was made' [citation], but trial had concluded, by his failure to object in a timely manner, appellant must be deemed to have waived his right to pursue a dismissal."]; Holt v. Pardue (1960) 178 Cal.App.2d 528, 533 ["We conclude that since the defendant went to trial without making the motion to dismiss, he must be deemed to have waived the preceding delays for the purposes of that trial and that the court had no right to dismiss under [former §] 583."].)
Although denominated an issue of waiver in the case law (see, e.g., Butler, supra, 146 Cal.App.3d at p. 840), a defendant's failure to file a motion to dismiss prior to proceeding to trial is more precisely characterized as effecting a forfeiture. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 [" 'Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' [Citation.]"].)
Further, the Legislature has endorsed this case law through the enactment of section 583.140, which provides, "Nothing in this chapter abrogates or otherwise affects the principles of waiver and estoppel." (See 17 Cal. Law Revision Com. Rep., supra, pp. 917-918 ["A waiver . . . may occur, for example, where the defendant . . . has failed to assert the statute [fn. omitted]," and stating "[t]he proposed law makes clear that the rules of waiver and estoppel are applicable."].)
In the omitted footnote, the report cites Seaboard Mills, supra, 207 Cal.App.2d 97.
2. Application
a. The matter was brought to "trial" (§ 583 .310) in May 2011
Jameson contends that the matter was brought to trial when the court granted Desta's motion for summary judgment on May 31, 2011.
Desta acknowledges that "[f]or purposes of the five-year rule, cases have construed a trial to include the resolution of an issue of fact or law raised by the pleadings or cause of action." Desta also does not dispute that a trial court's granting of "a motion for summary judgment on the law for lack of a triable issue of fact . . . is a 'trial' for purposes of the dismissal statutes." (Dunmore, supra, 45 Cal.App.4th at p. 1377.)
Our opinion in Jameson III makes clear that the summary judgment at issue was for "lack of a triable issue of fact." (Dunmore, supra, 45 Cal.App.4th at p. 1377; see Jameson III, supra, 215 Cal.App.4th at p. 1161 [quoting the trial court's summary judgment ruling as stating, " 'There is no triable issue of material fact on causation, and it is clear [Jameson] cannot establish an essential element of his claim[],' "], italics added.) Thus, it is clear that this matter was brought to "trial" within the meaning of section 583.310 upon the trial court's granting of the May 31, 2011 summary judgment.
In Jameson III, we concluded that the trial court erred in concluding that there was no triable issue of fact as to causation. (Jameson III, supra, 215 Cal.App.4th at p. 1149.)
b. Desta forfeited his right to seek dismissal of the action for delay prior to May 31, 2011, by failing to file a motion to dismiss prior to that date
Jameson argues that Desta forfeited his right to seek dismissal of the action due to any delay that occurred prior to the May 31, 2011 summary judgment, by failing to file a motion to dismiss prior to that date. We agree.
Desta argued in his April 2014 motion to dismiss that the five-year limit contained in section 583.310 expired on February 8, 2011, a date prior to the May 31, 2011 order granting summary judgment. As outlined ante (see pt. III.2, ante), the law is clear that a defendant forfeits his right to seek dismissal due to a plaintiff's failure to timely bring an action to trial by waiting until after the trial to file a motion to dismiss. (See, e.g., Seaboard Mills, supra, 207 Cal.App.2d at p. 104; § 583.140.) Further, a summary judgment is a trial for these purposes. (Seaboard Mills, at p. 104; Dunmore, supra, 45 Cal.App.4th at p. 1377.)
Seaboard Mills, as Jameson correctly argues, is materially "indistinguishable" from this case. In Seaboard Mills the trial court granted a motion for summary judgment. (Seaboard Mills, supra, 207 Cal.App.2d at p. 99.) As in this case, the summary judgment was reversed and the matter remanded to the trial court. (Seaboard Mills, at p. 99.) Thereafter, on remand, the respondents filed a motion to dismiss the matter for failure to bring the matter to trial within five years after the filing of the action. (Seaboard Mills, at p. 100.) The Seaboard Mills court concluded that the trial court erred in granting the motion. (Id. at p. 104.) The court reasoned:
Desta does not discuss Seaboard Mills in his brief, nor does he raise any contrary argument with respect to the forfeiture issue.
Seaboard Mills involved several "separate actions." (Seaboard Mills, supra, 207 Cal.App.2d at p. 99.) Although immaterial for our purposes, it is not clear from the opinion whether the actions were resolved by a single "summary judgment" (id. at pp. 99, 104) or several "summary judgments." (Id. at pp. 101, 102.)
To be precise, in this case, the sole respondent, Desta, filed the motion to dismiss.
The Seaboard Mills court applied former section 583, which required dismissal of an action " 'unless such action is brought to trial within five years after the plaintiff has filed his action . . . .' " (Seaboard Mills, supra, 207 Cal.App.2d at p. 101, fn. 2.) The statute has been re-codified without material change in current section 583.310.
"[I]t seems unquestionable that a 'trial' in a more fundamental sense has been accomplished on the granting of a motion for summary judgment than on the sustaining of a demurrer without leave to amend.[] We therefore hold that the actions here were brought to trial. Obviously, a defendant waives objection to antecedent delay by going to trial without moving to dismiss. [Citation.] The mandatory five-year provision of [former] section 583 [current section 583.310], applying prior to trial can have no application." (Ibid.)
Elsewhere in its opinion, the Seaboard Mills court discussed Smith v. City of Los Angeles (1948) 84 Cal.App.2d 297, in which the Court of Appeal concluded that an order sustaining a demurrer without leave to amend constituted a trial for purposes of former section 583. (Seaboard Mills, supra, 207 Cal.App.2d at pp. 101-102 [discussing Smith].)
Thus, in this case, by failing to file a motion to dismiss before the trial court's May 31, 2011 order granting summary judgment, Desta forfeited his right to seek dismissal of the action on the basis of any delay that occurred prior to that date. Accordingly, the trial court's ruling dismissing the case pursuant to section 583.310 may not be affirmed on the basis that the five-year period elapsed before the issuance of the May 31, 2011 summary judgment order at issue in Jameson III.
c. Jameson brought the action to trial within three years of the remittitur in Jameson III
The remittitur in Jameson III issued on July 2, 2013. On remand, on April 28, 2014, Jameson brought the matter to trial. Accordingly, Jameson brought the matter to trial within three years of the issuance of the remittitur, as required pursuant to section 583.320, subdivision (a)(3). Thus, the judgment may not be affirmed on the ground that Jameson failed to timely "again" bring the matter again to trial under section 583.320.
d. Desta's arguments for affirmance are unpersuasive
In his original respondent's brief in this court, Desta argued that this court should affirm the trial court's granting of the motion to dismiss for two reasons. First, Desta argued that Jameson had "acquiesced in the decision" of the trial court. Second, Desta argued that Jameson had failed to adequately brief the issue on appeal.
Similarly, in his supplemental opening and responding briefs on remand from the Supreme Court, Desta argues that Jameson "invited the ruling from the trial court." (Capitalization omitted.)
With respect to his first argument, Desta claimed that the following three portions of the record demonstrated Jameson's acquiescence to the trial court's ruling: 1) Jameson stated in a written opposition to the motion that he was "not disagreeing with the calculations in the motion"; 2) the minutes of an April 23, 2014 hearing on the issue state, "[Jameson] states that it is a matter of doing the math, and that the 5 year jurisdiction has run"; and 3) the minutes of the April 28 hearing on the motion state, "The Court finds that this case is well beyond the 5 year [statute] and is 2276 days [old] which is 6.23 year[s] old. 1.23 years beyond the statute of limitation. Plaintiff Jameson agreed." None of these three items from the record demonstrate that Jameson acquiesced in the trial court's ruling.
First, as Desta acknowledges, Jameson filed a written opposition to the motion to dismiss in the trial court, thereby expressing his disagreement with the motion, rather than acquiescence. The fact that, in his written opposition, Jameson expressed agreement with the "calculations," does not demonstrate that he agreed that the trial court should grant the motion. On the contrary, in his opposition to the motion to dismiss, Jameson expressly argued, "Jameson disagrees that the court has lost jurisdiction over this matter and requests that the Court deny the motion accordingly."
Nor can we conclude that the court's minutes demonstrate that Jameson orally agreed that the trial court should grant the motion to dismiss. To begin with, the minutes are most reasonably interpreted as reflecting the view that Jameson expressed in his written opposition, namely, that he did not disagree with Desta's calculations pertaining to how long the matter had been pending. The minutes do not, however, indicate that Jameson agreed that the law required that the matter be dismissed.
Jameson's written opposition stated that "Jameson is not disagreeing with the calculations in the motion," but that Jameson does "disagree[] that the Court has lost jurisdiction . . . ."
Further, due to the trial court's denial of Jameson's request for a court reporter, which the Supreme Court expressly held was erroneous (Jameson v. Desta, supra, 5 Cal.5th at p. 623), there is no verbatim transcript of the proceedings that led to the trial court's ruling on the motion to dismiss. Under these circumstances, we cannot conclude that the ambiguous summaries of Jameson's oral remarks contained in the trial court's minutes demonstrate that, despite his written opposition to the motion to dismiss, Jameson agreed that the trial court should grant the motion to dismiss. Accordingly, we reject Desta's argument that we may affirm the trial court's granting of the motion to dismiss on the ground that Jameson acquiesced in the court's ruling.
We are similarly unpersuaded by Desta's contention that Jameson failed to "cite[] any authority to support his conclusory contention that the trial court erred in dismissing the action pursuant to section 583.310," in Jameson's opening brief in this court. Jameson argued in his opening brief that the trial court erred in "[d]ismissing the case," on the ground that the court "had lost jurisdiction under . . . section 583.310. . . . ." (Capitalization and boldface omitted.) Jameson also specifically cited section 583.320. Further, Jameson stated that he had cited section 583.320 orally in the trial court and asserted that under that statute, the trial court "still had jurisdiction, because the matter was remanded on appeal in 2013." In short, Jameson cited authority and presented a meaningful argument in support of reversal in his original pro se briefing in this court.
Jameson is represented by counsel on remand from the Supreme Court. His counsel has filed supplemental briefing and two requests for judicial notice on this issue.
In his supplemental briefs in this court, Desta advances two additional arguments, neither of which we find persuasive. Desta's primary argument is that "as of the filing of the third notice of appeal in this matter on June 16, 2011, 2,071 days[] had elapsed from the filing of the complaint until the filing of the notice of appeal. By that point in time, the five-year rule had elapsed [sic]. Subsequent events are therefore irrelevant."
We exercise our discretion to consider such arguments made for the first time in Desta's supplemental briefing on remand, despite the fact that they were not made in Desta's original respondent's brief. (See Cal. Rules of Court, rule 8.200(b) ["Supplemental briefs must be limited to matters arising after the previous Court of Appeal decision in the cause, unless the presiding justice permits briefing on other matters."].)
This is more than five and a half years. We assume for purposes of this decision that Desta's mathematical calculations with respect to the number of days that the matter has been pending for purposes of section 583.310 are correct.
In his calculations, Desta did not include time during which the trial court lacked jurisdiction to try the case due to the prior appeals in this matter. (See § 583.340 ["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."].)
As discussed ante, the law is clear that "a defendant waives objection to antecedent delay by going to trial without moving to dismiss" (Seaboard Mills, supra, 207 Cal.App.2d at p. 104, italics added) and also that a summary judgment, such as the one issued by the trial court on May 31, 2011, constitutes a " 'trial[]' " for purposes of section 583.310. (See Seaboard Mills, at p. 101.) We therefore reject Desta's argument that what happened after the running of the five-year period is "irrelevant." On the contrary, by permitting the matter to proceed to trial (i.e., summary judgment) without filing a motion to dismiss, Desta forfeited his right to seek dismissal of the matter on the basis of any delay that occurred before the trial (summary judgment).
Finally, Desta argues in his supplemental opening brief on remand that Jameson "waived application of . . . section 583.320" (capitalization omitted) by failing to raise this argument in the trial court. We are not persuaded. The record indicates that Desta filed his motion to dismiss on April 21, 2014. The motion to dismiss was orally discussed at an April 28 hearing. As noted ante, Jameson asserted in his original brief in this court that he argued "in open Court," that the trial court continued to have jurisdiction over the matter in light of section 583.320. Since no transcript of that hearing is available due to the trial court's error in failing to provide Jameson with a court reporter, this court has no ability to determine whether Jameson's assertion is accurate. Further, since the lack of a transcript of the hearing precludes this court from determining whether Jameson referred to section 583.320 in oral proceedings before the trial court, we cannot affirm on the ground that Jameson forfeited any reliance on section 583.320 by failing to refer to the statute in the trial court. (See Jameson v. Desta, supra, 5 Cal.5th at p. 625.)
In his opening respondent's brief in this court, Desta did include a quotation from a treatise concerning the doctrine of waiver for failure to make an objection, but did not specifically argue that Jameson had waived the contention that the trial court erred in granting Desta's motion to dismiss.
In his supplemental responding brief on remand, Desta argues, for the first time, that Jameson waived this issue by failing to include a citation to the statute in his written opposition to the motion to dismiss. Desta fails to cite any authority for the proposition that Jameson was required to cite the statute in his written opposition in order to preserve the issue for appeal. Further, even if there were such a requirement, it is clear that Jameson's failure to cite section 583.320 in his written opposition did not prejudice Desta or the court. That is because although Jameson's written opposition is dated April 24, it was not filed until May 5, approximately one week after the trial court granted the motion to dismiss.
In his supplemental responding brief in this court, Desta argues, "failing to raise this argument with a heading in his trial court briefing effects a waiver." (Italics added, citing City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29, 51.) City of Oakland does not support this proposition, because the court was discussing a party's appellate briefing. (Ibid.) --------
Finally, the issue is one of pure law based on undisputed facts. We exercise our discretion to excuse any forfeiture occasioned by Jameson's failure to cite the statute in his written opposition to the motion to dismiss. (See, e.g., People v. Rosas (2010) 191 Cal.App.4th 107, 115 ["appellate courts regularly use their discretion to entertain issues not raised at the trial level when those issues involve only questions of law based on undisputed facts."].)
Accordingly, we conclude that the trial court erred in granting Desta's motion to dismiss.
IV.
DISPOSITION
The judgment is reversed. Desta is to bear costs on appeal.
AARON, J. WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
Government Code section 68630, subdivision (a) provides in relevant part:
"[O]ur legal system cannot provide 'equal justice under law' unless all persons have access to the courts without regard to their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees."