Opinion
B320226
03-27-2024
JAMES MacDONALD, Plaintiff and Appellant, v. SHEREEN ARAZM KOULES, Defendant and Respondent.
James MacDonald, in pro. per., for Plaintiff and Appellant. Kempinsky Law, Louis E. Kempinsky; Klatte, Budensiek & Young-Agriesti, Summer A. Young-Agriesti and Melissa Brandman for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC516094 Jon R. Takasugi, Judge. Affirmed.
James MacDonald, in pro. per., for Plaintiff and Appellant.
Kempinsky Law, Louis E. Kempinsky; Klatte, Budensiek & Young-Agriesti, Summer A. Young-Agriesti and Melissa Brandman for Defendant and Respondent.
LAVIN, J.
INTRODUCTION
In general, a plaintiff must bring a case to trial within five years of the filing of the original complaint, or within three years of a reversal of a judgment on appeal, subject to limited statutory tolling periods. (See Code Civ. Proc., §§ 583.310, 583.320.) Plaintiff and appellant James MacDonald (plaintiff) initiated this action against defendant and respondent Shereen Arazm Koules (Koules) in July 2013. Plaintiff appeals from a January 2022 order of dismissal for failure to timely prosecute this action. He contends the mandatory time to prosecute this action does not expire until June 2025, nearly 12 years after he began this litigation.
Undesignated statutory references are to the Code of Civil Procedure.
Taking into account the applicable statutory tolling periods and an emergency Judicial Council rule adopted in 2020 due to the Covid-19 pandemic, we conclude plaintiff's time to bring this case to trial expired in September 2021. Accordingly, we affirm the order of dismissal.
FACTS AND PROCEDURAL BACKGROUND
These are the relevant procedural details:
For additional background see MacDonald v. Arazm (Jan. 4, 2018, B265659) [nonpub. opn.].
◦ Plaintiff filed the original complaint against Koules and others on July 23, 2013.
◦ On May 12, 2015, the court granted Koules's motion for judgment on the pleadings and entered a judgment of dismissal in her favor.
◦ Plaintiff filed a notice of appeal on July 24, 2015. A different panel of this Division affirmed the judgment in part, reversed it in part, and remanded for further proceedings.
◦ The remittitur issued on March 6, 2018 and was filed by the clerk of the Los Angeles Superior Court on March 8, 2018.
◦ On April 6, 2020, the Judicial Council adopted 11 emergency rules relating to the Covid-19 pandemic.
◦ Plaintiff filed a peremptory challenge under section 170.6 on April 2, 2021 and the case was reassigned on April 13, 2021.
◦ Plaintiff filed another challenge under section 170.6 on April 23, 2021 and the case was again reassigned on April 28, 2021.
Based on these facts, on December 27, 2021, Koules filed a motion to dismiss the action due to plaintiff's failure to prosecute within the time required under section 583.310 et seq. The court granted the motion and issued an order dismissing Koules from the case without prejudice on January 27, 2022.
Plaintiff timely appeals.
DISCUSSION
Plaintiff contends his time to bring this case to trial was tolled on numerous occasions, thereby extending his time to bring this matter to trial until June 2025. We agree that plaintiff is entitled to the benefit of several tolling periods but conclude, nevertheless, that the trial court properly granted Koules's motion to dismiss.
1. Standard of Review
"A trial court's dismissal of an action for failure to prosecute under section 583.310 is generally reviewed for abuse of discretion. (See Coe v. City of Los Angeles (1994) 24 Cal.App.4th 88, 92.) 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. (See Kim v. Superior Court (2006) 136 Cal.App.4th 937, 940 [statutory construction]; In re Daniel M. (1996) 47 Cal.App.4th 1151, 1154 [interpreting rules of court].)" (Barron v. Santa Clara County Valley Transportation Authority (2023) 97 Cal.App.5th 1115, 1123-1124 (Barron).)
Both standards of review apply here. To the extent we consider the court's interpretation of the Code of Civil Procedure and the California Rules of Court, our review is independent. We review the court's findings regarding the impossibility or impracticability of plaintiff's prosecution of the case for an abuse of discretion.
2. Appellant's Burden on Appeal
There are fundamental rules and principles of appellate practice which govern the types of issues and arguments that may be raised on appeal, the form in which such arguments should be made, and the manner in which the facts should be stated. As will become evident, plaintiff's presentation of this case on appeal is inadequate in a number of ways.
The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and "it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Failure to provide an adequate record requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; see Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
In addition, the parties must provide citations to the appellate record directing the court to the supporting evidence for each factual assertion contained in that party's briefs. When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779-801 [several contentions on appeal "forfeited" because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) Further, the parties must support their arguments by citing relevant legal authority. (See, e.g., Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [issue not supported by pertinent or cognizable legal argument may be deemed abandoned].)
An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, his argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citation.]" (Ibid.) And it is well established that" '[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations].' [Citations.]" (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)
Large portions of plaintiff's briefs fail to comply with these basic principles of appellate practice. We disregard factual assertions unsupported by citations to the appellate record as well as arguments unsupported by relevant legal authority, and address plaintiff's remaining discernable arguments.
3. The court properly granted the motion to dismiss.
Subject to certain statutory extensions, and as pertinent here, a plaintiff must generally bring a case to trial within five years of the filing of the original complaint, or within three years of a reversal of a judgment on appeal, whichever is longer. (§§ 583.310, 583.320, subds. (a)(3) & (b).) "This dismissal requirement is mandatory and 'not subject to extension, excuse, or exception except as expressly provided by statute.'" (Seto v. Szeto (2022) 86 Cal.App.5th 76, 85 (Seto), citing § 583.360, subd. (b).)
Section 583.310 states, "An action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.320 states, as pertinent here, "(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 … 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. [¶] (b) Nothing in this section requires that an action again be brought to trial before expiration of the time prescribed in Section 583.310."
Section 583.340 sets forth three circumstances in which the time to bring a case to trial is tolled: "(a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." We agree with plaintiff that two of these circumstances occurred during the pendency of this action.
First, prosecution of the action was stayed under section 583.340, subdivision (b), during the pendency of the prior appeal. (§ 916, subd. (a) [providing "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby"]; see also Blizzard Energy, Inc. v. Schaefers (2021) 71 Cal.App.5th 832, 842, fn. 4 [" 'Essentially, the § 916(a) "stay" means that, upon timely filing of a notice of appeal, … [j]urisdiction over the appealed matters shifts to the court of appeal and is terminated in the trial court … .' "].) The tolling period began on July 24, 2015 when plaintiff filed his notice of appeal and ended on March 8, 2018 when the Los Angeles Superior Court clerk filed the remittitur. (See Kroger Co. v. Workers' Comp. Appeals Bd. (2012) 210 Cal.App.4th 952, 959 [noting "an appeal is perfected when the notice of appeal is filed"]; § 583.320, subd. (a)(3) [remittitur effective when filed by trial court clerk].) Thus, when calculating the five-year period under section 583.310, plaintiff is entitled to a 958-day tolling period.
Second, under section 583.340, subdivision (c), it was impossible or impracticable for plaintiff to prosecute the case while it was being reassigned following his peremptory challenges to two judicial officers under section 170.6. (See Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1104 (Gaines) [holding delay attributable to trial court reassignment following a party's exercise of a § 170.6 peremptory challenge should be excluded under § 583.340, subd. (c)].) Plaintiff filed a challenge under section 170.6 on April 2, 2021 and the case was reassigned on April 13, 2021. Plaintiff filed another challenge on April 23, 2021 and the case was again reassigned on April 28, 2021. Together, the delays due to reassignment of the case total 16 days. This tolling period applies to the calculation of both the five-year and the three-year period.
Finally, and additionally, plaintiff is entitled to a six-month extension of time pursuant to California Rules of Court, appendix I, Emergency rule 10 (Emergency rule 10). On March 4, 2020, Governor Gavin Newsom declared a state of emergency as a result of the spread of the Covid-19 virus. (Barron, supra, 97 Cal.App.5th at p. 1122.) The former Chief Justice subsequently issued a statewide order authorizing the superior courts to adopt proposed rules or rule amendments to address the impact of the Covid-19 pandemic. (Ibid.) Acting on this authority and other executive orders from the Governor, the Judicial Council issued 11 emergency rules on April 6, 2020. (Id., at pp. 1122-1123.) This included Emergency rule 10(a), which 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." (Emergency rule 10(a).) A similar six-month extension of time applies to the three-year rule under section 583.320. (Emergency rule 10(b).)
Taking into account these tolling periods and the six-month extension, plaintiff's time to bring the case to trial under section 583.310 expired on September 23, 2021. The standard five-year period expired on July 23, 2018. That date was effectively extended by 958 days [tolling period relating to the appeal] and 16 days [tolling period relating to the judicial challenges and reassignments], bringing the expiration date to March 23, 2021. Adding the six-month extension under Emergency rule 10(a) brings the deadline to September 23, 2021.
Even adding 73 days to account for the period from the date the court granted Koules's motion for judgment on the pleadings to the date plaintiff filed a notice of appeal brings the deadline to December 6, 2021, three weeks before Koules filed the motion to dismiss the action.
The three-year rule under section 583.320, subdivision (a), provides plaintiff virtually the same amount of time in which to bring his case against Koules to trial. The remittitur was filed March 8, 2018, and the standard three-year period to bring the case to trial expired on March 8, 2021. After accounting for the six-month extension under Emergency rule 10(b) and the 16-day tolling period relating to the judicial challenges in April 2021, the three-year period expired on September 24, 2021.
Under section 583.320, subdivision (b), the longer three-year period applies. We therefore conclude that plaintiff's time to bring the case to trial expired on September 24, 2021. The court's January 2022 order granting Koules's December 2021 motion to dismiss for failure to prosecute was therefore proper.
Plaintiff asserts that the court made six errors in ruling on Koules's motion to dismiss. We address, and reject, his arguments in turn.
First, plaintiff apparently contends that in addition to the six-month extension provided by Emergency rule 10, he is entitled to additional tolling periods or extensions relating to the Covid-19 pandemic. He references, without citation to the appellate record, an "emergency order" dated August 5, 2020. The record includes an order dated August 5, 2020 advancing and continuing the trial date from September 4, 2020 to February 8, 2021 on the court's own motion. But a trial continuance does not operate to extend the time to bring a matter to trial under sections 583.310 or 583.320. (See Gaines, supra, 62 Cal.4th at pp. 1091-1092 ["Under section 583.340(b), a stay of the trial halts the running of the five-year period. [Citation.] By contrast, a continuance generally does not."].) Plaintiff also references "[c]ourt orders extending the shut down in Los Angeles until December 31, 2020 for all civil cases." We are unable to find any such evidence in the record.
Second, plaintiff seems to believe he is entitled to additional time under section 583.350. The entirety of his argument on this point is as follows: "Error 2- The Court did not allow any addition[al] time under 583.350. With all the extensions, the Court did not consider the extra six months allowed." We disregard this argument because it is unsupported by any cogent analysis.
Third, plaintiff asserts the court improperly applied the three-year period in section 583.320. Specifically, he notes that statute applies after a new trial is granted and insists that he was not granted a "new" trial because he never had a trial in the first instance. For purposes of this statute, however, a "trial" includes "the determination of any issue of fact or law which brings the action to the stage where final disposition can be made." (Lemaire, Faunce & Katznelson v. Cox (1985) 171 Cal.App.3d 297, 300 [applying former section 583].) Here, a final disposition occurred when the court entered a judgment of dismissal in favor of Koules in 2015. Our reversal of that judgment in 2018 set the matter for a new trial within the meaning of section 583.320. (See, e.g., McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 532 [concluding three-year rule applied following a reversal on appeal of a judgment of dismissal following a successful demurrer].)
Fourth, plaintiff again asserts that section 583.320 does not apply. But it does apply, as we have already explained. He also asserts that the five-year rule under section 583.310 is subject to tolling under section 583.340. We agree, as explained ante.
Fifth, plaintiff complains that he only received a 16-day tolling period due to the reassignments of the case following his challenges under section 170.6. The entirety of his argument is: "This is in error. The Courts have traditionally count[ed] the 'First Appearance' of the New Judge when considering time delays. The first appearance of Judge Takaguci [sic] was in December, 2021. See Case Law below." No supporting legal discussion follows. We gather from other portions of the opening brief, however, that plaintiff believes he is entitled to a 244-day tolling period relating to the reassignments of his case, running from April 13, 2021 (the date he filed his first challenge under section 170.6) to December 13, 2021 (the date he represents the parties made their first appearance before Judge Takasugi). As we have already explained, it is appropriate to exclude from the time to bring a matter to trial delays due to judicial reassignment. But there is no indication that any court-related delay prohibited plaintiff from prosecuting his case after April 28, 2021, when the case was assigned to Judge Takasugi. Thus, the 16-day tolling period discussed ante, is correct.
Sixth and finally, plaintiff contends the court erred in not allowing additional time for him to prosecute his case against Koules due to a stay related to a bankruptcy filing by another party in the case, Lonnie Moore. His argument is as follows: "Error 6- The Court did not allow any additional time for the 4/1/2016 STAY of the Action as a result of the Moore Bankruptcy. The Court wrote: 'Pre-Appeal extensions do not apply for purposes of calculating this three-year timeline.' First, the five year rule applies. Second the delays are added in a serial manner not parallel. Even though Arazm was up on appeal, the delay is added for each. The Court erred by overlapping this time, rather than adding it cumulatively." Plaintiff seems to suggest that a stay imposed in relation to one defendant's bankruptcy automatically impacts a plaintiff's ability to prosecute the case against other defendants. He has provided no supporting legal authority for that novel proposition. Nor has plaintiff explained why, in the present case, anything about Moore's bankruptcy proceedings impacted his ability to pursue his claims against Koules. In any event, "[t]he five-year period is calculated separately for each defendant." (Seto, supra, 86 Cal.App.5th 76, 93, fn. 5.) Absent some indication that Moore's bankruptcy made it impossible or impracticable for plaintiff to pursue his case against Koules, we cannot conclude that plaintiff was entitled to an additional tolling period.
In short, the court properly granted Koules's motion to dismiss for failure to prosecute the case in a timely manner.
DISPOSITION
The order of dismissal is affirmed. Defendant and respondent Shereen Arazm Koules shall recover her costs on appeal.
WE CONCUR: EDMON, P. J., EGERTON, J.