From Casetext: Smarter Legal Research

Michik v. Michik

California Court of Appeals, Fourth District, Second Division
Feb 23, 2011
No. E050092 (Cal. Ct. App. Feb. 23, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. Paul M. Bryant, Jr., Judge, Super. Ct. No. SCVSS116187

Law Offices of Jefford C. Davis and Jefford C. Davis for Plaintiff and Appellant.

Law Offices of John G. Wurm and John G. Wurm for Defendant and Respondent Joan Carpenter Michik.

No appearance for Defendant and Respondent Robert Michik.


OPINION

McKINSTER, Acting P. J.

Plaintiff and appellant William Michik filed an action against defendants and respondents Robert Michik and Joan Carpenter Michik for partition of real property, constructive trust, quiet title, and other causes of action arising out of a dispute over property ownership. Plaintiff appeals after the trial court granted defendants’ motion to dismiss for failing to bring the action to trial within five years, as required by Code of Civil Procedure section 583.310. We affirm.

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

FACTS AND PROCEDURAL HISTORY

Plaintiff William Michik and defendant Robert Michik were both surviving children of Lillian Michik (the mother). Defendant Joan Carpenter Michik is the spouse of Robert Michik. The mother apparently owned a home in Crestline, California. In 1998, two different actions were filed, in San Bernardino County and in Orange County, respectively. The San Bernardino action was a complaint by the mother against Robert Michik and Joan Carpenter Michik, alleging elder abuse, intentional infliction of emotional distress, cancellation of deed, quiet title, and other causes of action. The Orange County action was a voluntary petition by the mother for appointment of a conservator. The Orange County court appointed a conservator. The San Bernardino County action was settled in 1999 by an agreement giving a 55 percent interest in the property to Robert Michik, and 15 percent each to the mother’s other three children, plaintiff William Michik, Richard Michik, and Katherine Jean Marshall. The mother was granted a life estate in the property. The conservator petitioned in 2000 to compromise the Orange County action, and the court eventually granted the petition, approving the terms of the San Bernardino settlement.

The mother died in 2001, extinguishing the life estate. Since then, according to plaintiff’s complaint, as a result of Robert Michik’s 55 percent ownership interest, defendants have excluded the other owners from the property and have exercised complete control over the property. Defendants have, for example, rented out the property, but refused to share the rents with any of the other siblings. When a tenant complained to plaintiff about the condition of the property, plaintiff inspected and found many items broken or in disrepair. Plaintiff also allegedly discovered that the previous settlement, fixing the percentages of ownership in the property, had never been recorded as required by the settlement, and the property taxes had not been paid for several years. In fact, foreclosure proceedings were pending.

As a result, on June 8, 2004, plaintiff filed the instant action, naming Robert Michik and Joan Carpenter Michik as defendants. The original complaint alleged causes of action for partition of real property by sale, for an accounting, for constructive trust, for breach of the implied covenant of good faith and fair dealing, for waste, for quiet title, and for injunctive relief.

On July 28, 2004, defendants filed a verified answer to the complaint. Several case management conferences were held over many months. In December 2004, plaintiff’s counsel reported he would be late to attend the conference; the court proceeded in counsel’s absence, continuing the case management conference “to allow counsel for plaintiff one last opportunity to join the other siblings.” Three months later, in March 2005, the court “continue[d] the CMC one last time so that the other parties may be joined.”

The parties reached a stipulation for the filing of a first amended complaint in May 2005. On July 8, 2005, plaintiff sought and obtained leave to file a first amended complaint; plaintiff had 90 days to file the pleading. Plaintiff filed the first amended complaint the same day, adding Richard Michik as a defendant. Katherine Jean Marshall was not named.

During the remainder of 2005 and throughout 2006, plaintiff and defendants engaged in lengthy settlement negotiations. The trial date had initially been set for November 21, 2005. This trial date was continued by stipulation of the parties to February 21, 2006. At a settlement conference in January 2006, the court minutes noted that the trial date was “continued on the court’s own motion due to congested calendar.” In May 2006, at a trial readiness proceeding, the trial date was continued on the court’s own motion because of “the courts’ unavailability.” In October and November 2006, the parties stipulated to continue the trial date.

The trial date was continued from February 21, 2006, to May 22, 2006, or 91 days.

The trial date was continued from May 22, 2006, to November 20, 2006, or 183 days. However, the parties stipulated on September 21, 2006, to continue the trial date; the interval from May 22, 2006, to September 21, 2006, is 123 days.

The new trial date was May 14, 2007.

Delays also occurred in the following years: In May 2007, at a trial readiness calendar hearing, the court continued the trial date on its own motion “due to the Court’s congested trial calendar.” On the eve of the new September trial date, however, defense counsel requested a continuance to accommodate defendant’s eye surgery. On the January 24, 2008, trial date, the parties apparently informed the court that there was a pending probate or conservatorship case; the trial readiness conference was continued and the trial date vacated. At the continued trial readiness conference in February 2008, the parties stipulated to set a voluntary settlement conference and requested a continuance of the trial. Settlement was unsuccessful, and the trial date was again vacated. Further settlement efforts took place in July 2008; the parties reported that they had settled all but one issue. No settlement of all issues was reached, however. A trial setting conference was taken off calendar at the request of the parties. In August 2008, defense counsel reported that service of summons was still outstanding on the added defendant, Richard Michik; the remaining sibling, Katherine Marshall, had still not been named in the suit. A month later, in September 2008, defense counsel stated that Richard Michik would be defaulted. Although co-owner Katherine Marshall had not been named in the suit, plaintiff told the court that he intended to secure a quitclaim deed from her.

The trial was continued from May 14, 2007, to September 10, 2007, or 120 days.

The continuance was requested on September 6, 2007. The new trial date was January 24, 2008.

The new trial date was June 23, 2008.

Trial setting proceedings were continued to 2009. In January 2009, the hearing was continued at the request of both counsel, because plaintiff’s attorney was engaged in trial. In March 2009, plaintiff’s counsel informed the court of ongoing settlement attempts, and represented that defaults would be taken against the remaining siblings. Plaintiff requested a 60-day continuance of the case management conference to record the deed (presumably, the quitclaim from Katherine Marshall). In May 2009, plaintiff’s counsel missed a hearing because of calendaring error; defense counsel reported that the deed had not been recorded, and no default had been filed as to Richard Michik. At a further case management conference in August 2009, plaintiff’s counsel again stated his intent to file a default against Richard Michik, and to record a deed from Katherine Marshall. Neither of these events had yet been accomplished. Defense counsel, on the other hand, indicated that the case was five years old, and advised that defendants intended to file a motion to dismiss. The court set a trial date for September 28, 2009.

On August 12, 2009, defendants filed a motion to dismiss, both for failure to serve or file the return of service on Richard Michik within three years, and for failure to bring the matter to trial within five years. Defendants urged that they would be prejudiced; just over five years after the complaint had been filed, defendant Robert Michik died. On September 4, 2009, plaintiff filed his points and authorities in opposition. Plaintiff’s counsel averred that he had personally served Richard Michik on August 29, 2006, and stated that a proof of service was filed concurrently with the opposition to the motion to dismiss (none appears in the record, however). Further, plaintiff argued that the five-year statute to bring the case to trial should be tolled for periods when the trial date was continued because of court congestion, a period of 11 months. In addition, he contended that the case could not, as a matter of law, have been tried within five years because it would not be possible to try a case for partition of real property in the absence of joinder of all the claimants to an interest. Plaintiff sought an order for leave to file a first amended complaint to add the other siblings who had an interest in the property as defendants. He filed the first amended complaint on July 8, 2005; therefore, the five-year period could only begin to run from that time, and would expire at the earliest on July 8, 2010.

The trial court rejected plaintiff’s arguments. The court dismissed the action as to Richard Michik only, for failure to serve him and to file a return of summons within three years. The trial court noted that five years from filing of the original complaint was June 8, 2009. Although there had been continuances of the trial date for court congestion, the last such continuance had occurred well over a year before the five-year period would run, and the court congestion was not a causative factor in plaintiff’s failure to bring the action to trial. Accordingly, on October 29, 2009, the court entered an order dismissing the action pursuant to section 583.310.

Plaintiff filed a notice of appeal on January 21, 2010.

ANALYSIS

I. Contentions

Plaintiff raises two contentions. First, he argues that the trial court should have tolled the five-year statute for certain periods of time, when continuances of the trial date were caused by court congestion. Second, he urges that the trial court abused its discretion in not considering the date of the filing of the first amended complaint as the starting date for computing the five-year period. We treat these issues in inverse order.

II. The Filing of the Original Complaint Began the Five-year Period to Bring the Action to Trial

Section 583.310 states: “An action shall be brought to trial within five years after the action is commenced against the defendant.” The original complaint was filed June 8, 2004, naming Robert Michik and Joan Carpenter Michik as defendants. Five years from that date was June 8, 2009. Plaintiff was permitted to file the first amended complaint to name additional defendants, but he only added Richard Michik as a defendant, filing the first amended complaint on July 8, 2005. Plaintiff failed to add yet another defendant, Katherine Marshall.

Plaintiff urges that the partition cause of action could not be tried in the absence of all necessary parties, including all persons who had or claimed an ownership interest in the property. (Citing §§ 872.210, subd. (a) [a partition action may be commenced by any owner of real property], 872.510 [a plaintiff shall join as defendants all persons having or claiming an interest in the property to be partitioned].) Because trial of a partition action cannot be commenced in the absence of joinder of all the necessary parties, it was impossible or impracticable to bring the case to trial until all parties were named. Plaintiff was given permission to add the remaining required parties in May 2005, and actually filed the first amended complaint on July 8, 2005. Therefore, he suggests, the filing date of the first amended complaint should be the measuring event.

We reject plaintiff’s proffered “analysis.” It is contrary to the express language of section 583.310. The five-year period in which to bring action to trial runs from the filing of the plaintiff’s original complaint and not from the filing of an amended complaint. (Smith v. El Centro Lodge No. 1325 (1969) 271 Cal.App.2d 713, 716.)

In addition, it was not impossible or impracticable for plaintiff to name all the required parties at the outset. To allow plaintiff’s argument to prevail would be to permit a filing party to manipulate the five-year statute, by the simple expedient of omitting necessary parties, and dragging out the process of naming each one. The five-year statute as to the originally named parties does not recommence upon the addition of each new defendant; rather, a separate five-year period begins as to each defendant newly named.

As to these defendants, the five-year period began to run from the date the original complaint was filed, and not from the date of the first amended complaint.

III. The Continuances for Court Congestion Did Not Toll the Five-year Period for Impracticability or Impossibility of Bringing the Case to Trial

Plaintiff recognizes that this court has decided in De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365 (Fourth Dist., Div. Two) (De Santiago), that the five-year period to bring a case to trial is not automatically tolled when the court continues a trial date because of court congestion. Rather, “reasonable diligence is a critical factor in determining whether the impracticability exception tolls the five-year limitation period, ” and we concluded that, “when determining whether the impracticability exception applies and tolls the five-year period, reasonable diligence must be taken into consideration, particularly with regard to the period between the last continuance and the five-year mark.” (Id. at p. 376.)

The last continuance because of court congestion set the trial date as September 10, 2007. After that, over 20 months of the five-year period remained to bring the case to trial. Plaintiff exercised little diligence at any stage of the proceedings. It took him over a year, and several “last chances” to name missing parties; plaintiff still failed to name a necessary party even so. Plaintiff made numerous promises that he would file a proof of service as to Richard Michik or file a default against him; he failed to do so. He also represented to the court many times that he had or would obtain a quitclaim deed from the missing party and record that deed; this also failed to materialize.

The purpose of the five-year statute is “‘to prevent[] prosecution of stale claims where defendants could be prejudiced by loss of evidence and diminished memories of witnesses [and] to protect defendants from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of time. [Citations.]’ [Citation.]” (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447.) Here, the delay in prosecution has caused the kind of prejudice the statute was designed to prevent: the case has taken so long that, shortly after the five-year statute had elapsed, defendant Robert Michik died, thus preventing him from personally contesting plaintiff’s claims.

Plaintiff recognizes that De Santiago is the controlling authority, but urges this court to reconsider that holding. He claims it would be “cleaner and far more workable” simply to count all delays caused by court unavailability as tolling periods against the five-year statute. We decline the invitation to overturn De Santiago. We believe the better rule is stated therein: “To conclude otherwise would wreak havoc on application of the five-year limitation period. In effect, every court-ordered continuance due to courtroom unavailability would toll the five-year limitation, even if it was nevertheless possible to bring the case to trial within the five-year limitation period upon exercising reasonable diligence. It is unlikely this was the intent of the Legislature in enacting section 583.340, subdivision (c).” (De Santiago, supra, 155 Cal.App.4th at pp. 367-377.)

DISPOSITION

The trial court did not abuse its discretion in dismissing this action for failure to bring it to trial within five years. The periods of continuance for court congestion had no causal connection to the failure to bring the matter to trial. Rather, plaintiff failed to use reasonable diligence throughout the five-year period, particularly in the final 20 months before the statute ran. The judgment of dismissal is affirmed. Defendant and respondent Joan Carpenter Michik is to recover her costs on appeal.

We concur: RICHLI J., KING J.


Summaries of

Michik v. Michik

California Court of Appeals, Fourth District, Second Division
Feb 23, 2011
No. E050092 (Cal. Ct. App. Feb. 23, 2011)
Case details for

Michik v. Michik

Case Details

Full title:WILLIAM MICHIK, Plaintiff and Appellant, v. JOAN CARPENTER MICHIK et al.…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 23, 2011

Citations

No. E050092 (Cal. Ct. App. Feb. 23, 2011)