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Bruns v. E-Commerce Exchange

March 23, 2009

DANA BRUNS, PLAINTIFF AND APPELLANT,
v.
E-COMMERCE EXCHANGE, INC., ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Carolyn B. Kuhl, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. JCCP 4350).

The opinion of the court was delivered by: Mosk, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

INTRODUCTION

Plaintiff and appellant Dana Bruns (plaintiff) brought an action in the Orange County Superior Court in 2000. There were various amendments and substitutions of parties. The trial court stayed proceedings and then lifted the stay for discovery. It then stayed proceedings pending resolution of an appeal in another case. There were further stays of discovery and a stay of all proceedings in connection with a petition for coordination with other cases. The petition for coordination was granted and the case transferred to the Los Angeles Superior Court. Plaintiff obtained a default as to certain defendants. Proceedings were again stayed, with that stay lifted only for purposes of serving unserved parties. Ultimately the discovery stay was lifted.

The trial court granted a motion to dismiss the action pursuant to Code of Civil Procedure section 583.360,*fn2 which requires dismissal of an action not brought to trial within five years of the commencement of the action. The trial court, under section 583.340, subdivision (b) excluded from the computation of time when an action must be brought to trial, only periods when the entire action was stayed.The trial court did not rule on the alternative motion to dismiss under section 583.210 for thefailure of plaintiff to serve a party with a summons and complaint. Discretionary dismissal under section 583.410, subdivision (a) was not raised in the trial court.

On appeal from the judgment entered in the dismissal order, we hold that a partial stay of an action constitutes a stay of the prosecution of the action within the meaning of section 583.340, subdivision (b), and therefore, the trial court erred in dismissing the action under section 583.360. As discussed in the unpublished portion of this opinion, we remand the matter to the trial court to rule on the motion brought under section 583.210-failure to serve timely the summons and complaint.

BACKGROUND

On February 22, 2000, plaintiff brought an action in Orange County Superior Court on behalf of herself and a putative class of others similarly situated, against defendant and respondent E-Commerce Exchange, Inc. (ECX), Flagstar Bank, Clayton Shurley‟s Texas BBQ, and Does 1 through 500, inclusive, for allegedly sending unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. section 227(b)(1)(C). Through subsequent amendments ending in a fifth amended complaint and substitutions for fictitiously named defendants, plaintiff added causes of action for violation of California‟s Unfair Competition Law (UCL) (Bus. & Prof. Code, §§ 17200, et seq.) and negligence, and named additional defendants and respondents CSB Partnership; CSB & Perez, LLC; CSB & Hinckley, LLC; CSB & McCray, LLC; CSB & Ellison, LLC; CSB & Humbach, LLC; Chris & Tad Enterprises (CSB defendants); Clayton Shurley dba Clayton Shurley‟s Texas BBQ; Clayton Shurley‟s Real BBQ, Inc.; Elliot McCrosky dba California Homefinders and E&N Financial; Daniel Quon; Daniel E. Quon, O.D., Inc.; and Fax.com, Inc.*fn3 On May 6, 2004, on a petition for coordination by defendants Fax.com, Inc. and Kevin Katz (who, apparently, is no longer a party to this action), plaintiff‟s case was transferred to the Superior Court in Los Angeles County for coordination with other cases.

On May 24, 2000, the trial court, Judge William F. McDonald, imposed a discovery stay and ruled that plaintiff‟s eight pending discovery motions were rendered "moot" by the stay. The trial court‟s minute order states,"Discovery is ordered stayed until the entry of CMO [case management order]." ECX‟s notice of ruling states, "All discovery, discovery issues and motions are stayed pending further order of the Court . . . ." On June 16, 2000, the trial court entered a case management order that states, in part, "On May 24, 2000, this Court stayed discovery pending entry of a Case Management Order. . . . The stay on discovery is hereby lifted." The trial court‟s June 16, 2000, minute order states that two motions to compel discovery set for June 21, 2000, were "moot" and, thus, vacated. On July 12, 2000, the trial court "further clarified its prior Orders with respect to the reopening of discovery." The trial court ruled that, except for certain identified interrogatories, "all discovery, if deemed necessary or advisable to the propounding party, would need to be re-served. All previous discovery motions remain vacated and moot as a result of this ruling."

On June 13, 2002, the trial court stayed this action for all purposes pending resolution of the appeal in Kaufman v. ACS Systems, Inc. (2003) 110 Cal.App.4th 886, which case addresses, in relevant part, whether a plaintiff has a private right of action for a violation of the TCPA in state court. On October 21, 2003, after the Court of Appeal‟s opinion in Kaufman v. ACS Systems, Inc. that recognized such a cause of action (id. at pp. 895-896), the trial court lifted the stay in this action.

On December 3, 2003, the trial court held a review hearing at which it ordered that "All discovery is stayed." On January 15, 2004, the trial court lifted the stay.

On January 30, 2004, the trial court set a hearing for March 4, 2004, on the petition for coordination and ordered, "All hearings, orders, motions, discovery or other proceedings are hereby stayed in all cases subject of [sic] the petition for coordination until a determination whether coordination is appropriate." On April 7, 2004, the trial court granted the petition for coordination. On May 6, 2004, this case was assigned to Judge Charles W. McCoy of the Los Angeles Superior Court. The assignment order states, "Immediately upon assignment, the coordination trial judge may exercise all the powers over each coordinated action of a judge of the court in which that action is pending."

On January 15, 2004, plaintiff obtained entry of ECX‟s default. On January 23, 2004, plaintiff obtained entry of CSB Partnership‟s default. On November 8, 2004, upon motions, the trial court set aside the entry of defaults against ECX and CSB Partnership.

On August 2, 2004, Judge McCoy issued an order setting the initial status conference for August 17, 2004. In the order, Judge McCoy also ordered, "To facilitate the orderly conduct of this action, all discovery, motion and pleading activity is temporarily stayed pending further order of this court." At the initial status conference on August 17, 2004, Judge McCoy ordered, "The Stay is lifted for the sole purpose of serving any unserved parties." Further, Judge McCoy set October 22, 2004, for hearing "any Motions Re Lifting Stay so as to Enforce Existing Judgment." Judge McCoy never did lift the August 2, 2004, stay.

On April 20, 2005, Los Angeles Superior Court Judge Carolyn B. Kuhl, to whom this case was reassigned effective January 3, 2005, entered a discovery order that required, among other things, that respondents respond to specified interrogatories and document requests. Judge Kuhl set a deposition date for Fax.com, Inc. and permitted other depositions to be scheduled, but did not otherwise lift the stay imposed on August 2, 2004. On July 11, 2006, Judge Kuhl "lifted the stay on discovery, and ordered that the parties may conduct open discovery."

On November 22, 2006, the CSB defendants, except for CSB Partnership, filed a motion to dismiss plaintiff‟s fifth amended complaint on the ground that plaintiff failed to serve the CSB defendants other than CSB Partnership with a summons and complaint within three years of the commencement of the action as required by section 583.210, and on the ground that plaintiff failed to bring her action to trial within the five-year statutory period as required bysections 583.310 and 583.360. CSB Partnership and apparently all other defendants except Flagstar Bank subsequently joined this motion to dismiss the action.*fn4

On November 22, 2006, ECX moved to dismiss plaintiff‟s fifth amended complaint pursuant to sections 583.310 and 583.360, subdivision (b) on the ground that plaintiff failed to bring her action to trial within the five-year statutory period. It appears that all defendants joined ECX‟s motion.*fn5 The trial court granted respondents‟ motion to dismiss under sections 583.310 and 583.360, ruling that plaintiff failed to bring her action to trial within the required time.

In ruling on respondents‟ motion to dismiss plaintiff‟s fifth amended complaint, the trial court under section 583.340, subdivision (b), excluded certain time periods. Itruled that the 23-day period from May 24, 2000, when there was an order staying discovery to June 16, 2000, was included within the five-year period within which plaintiff was to bring her action to trial, because significant litigation activity occurred during the period. The trial court ruled, it was not impossible, impracticable or futile "to progress toward bringing this action to trial pursuant to section 583.340(c)." In making its ruling, the trial court also rejected plaintiff‟s argument that the May 24, 2000 stay was lifted on July 12, 2000, rather than on June 16, 2000.

The trial court excluded from the five-year period within which plaintiff was to bring her action to trial the 495-day period from June 13, 2002, when there was an order staying proceedings pending an appeal in another case, to October 21, 2003. The trial court ruled that the 44-day period from December 3, 2003, when there was an order staying discovery, to January 15, 2004, was included within the five-year period within which plaintiff was to bring her action to trial because it was not impossible impracticable or futile "to make progress toward bringing this action to trial pursuant to section 583.340(c)." In its ruling, the trial court noted that in her opposition to the petition for coordination, plaintiff stated that her case ""has been aggressively litigated, with extensive discovery and law and motion undertaken. Pre-trial activities in the Bruns action are largely completed.‟"

The trial court excluded from the five-year period the 97-day period from January 30, 2004, when all proceedings were stayed pending resolution of the petition to coordinate proceedings, until May 6, 2004. The trial court noted that the periods during which ECX and CSB Partnership were in default overlapped with other periods that it had excluded from the five-year period within which plaintiff was to bring her action to trial. The trial court ruled that the periods that did not overlap with other excluded periods were included within the five-year period because counsel for the defaulting respondents claimed not to have been served with the operative complaint and offered to stipulate to set aside the defaults, and plaintiff‟s counsel chose not to agree to the stipulation, thus rejecting a means of continuing with the action. In addition, the trial court ruled it was not impossible, impracticable, or futile to bring plaintiff‟s action to trial during the period of the defaults, as other litigation activity continued.

The trial court excluded from the five-year period, the 15-day period from August 2, 2004, when the trial court ordered a temporary stay to August 17, 2004, when the trial court lifted the stay solely for purposes of serving unserved parties. In so ruling, the trial court rejected plaintiff‟s contention that the stay remained in effect until the trial court lifted the discovery stay on July 11, 2006, instead ruling that Judge McCoy lifted the stay at the initial status conference on August 17, 2004. The trial court determined that the five-year period expired on October 23, 2006, and because the trial had not been set by that date dismissed the action.

Plaintiff filed a timely notice of appeal. Pursuant to a request from this court, the parties addressed the consequences of the trial court‟s failure to rule on the motion to dismiss under section 583.210.

DISCUSSION

I. Dismissal Under Sections 583.310 and 583.360 For Plaintiff's Failure To Bring Her Action To Trial Within The Five-Year Period

Plaintiff contends that the trial court abused its discretion in dismissing her action under sections 583.310 and 583.360 for failure to bring the action to trial within the five-year period. Plaintiff contends that various periods of time should have been, but were not, excluded from the five-year period such that her action should not have been dismissed. We agree.

A. Standards of Review

""In reviewing the lower court‟s dismissal of [an] action for failure to prosecute, the burden is on appellant to establish an abuse of discretion. [Citation.] We will not substitute our opinion for that of the trial court unless a clear case of abuse is shown and unless there is a miscarriage of justice. [Citation.]‟ [Citation.]" (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447.) The incorrect interpretation of theapplication of a statute is an abuse of discretion. (In re Lugo (2008) 164 Cal.App.4th 1522, 1536, fn. 8.)

We review the construction of a statute de novo. (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531.) ""In construing a statute, our role is to ascertain the Legislature‟s intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]‟ (People v. Lopez (2003) 31 Cal.4th 1051, 1056 [6 Cal.Rptr.3d 432, 79 P.3d 548].) In other words, if there is "no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said,‟ and it is not necessary to "resort to legislative history to determine the statute‟s true meaning.‟ (People v. Cochran (2002) 28 Cal.4th 396, 400-401 [121 Cal.Rptr.2d 595, 48 P.3d 1148].)" (People v. Licas (2007) 41 Cal.4th 362, 367.) "We begin by examining the statute‟s words, giving them a plain and commonsense meaning." (People v. Murphy (2001) 25 Cal.4th 136, 142.)

B. Application of Relevant Legal Principles

An action must be brought to trial within five years after a plaintiff commences an action against a defendant. (§ 583.310.) An action is commenced within the meaning of section 583.310 upon the filing of the plaintiff‟s original complaint. (Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1010-1011.) The time requirements for bringing an action to trial are "mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." (§ 583.360, subd. (b).) "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. [¶] (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." (§ 583.340.) The trial court "shall" dismiss an action that is not timely brought to trial. (§ 583.360, subd. (a).)

On January 30, 2004, the trial court ordered that "all hearings, orders, motions, discovery or other proceedings are hereby stayed in all cases subject of [sic] the petition for coordination until a determination whether coordination is appropriate." The petition for coordination was granted and this case was transferred to Judge McCoy. On August 2, 2004, Judge McCoy ordered that "all discovery, motion and pleading activity" was stayed. On August 17, 2004, Judge McCoy ordered the stay lifted "for the sole purpose of serving any unserved parties." Judge McCoy did not lift the August 2, 2004, stay. Neither did Judge Kuhl, except that on July 11, 2006, she lifted the stay only on discovery. Thus, there was in effect a stay as to any trial, and that stay was never removed. It might be argued that the August 2, 2004, stay constitutes a stay of the trial of the action under section 583.340, subdivision (b) that was never removed. But the parties do not make such an argument, and it appears that what occurred was a stay under section 583.340, subdivision (b) of the "prosecution . . . of the action" rather than a stay or enjoinder of the "trial of the action."

The parties disagree on whether discovery stays constitute stays of the "prosecution . . . of the action" under section 583.340, subdivision (b). We have found no case that defines the term "prosecution" as it is used in subdivision (b) of section 583.340. In Melancon v. Superior Court (1954) 42 Cal.2d 698, however, our Supreme Court stated that the taking of depositions constitutes "a step in the "prosecution‟" of an action. (Id. at p. 707.) The Supreme Court based this statement on its earlier holding in Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18, in which it stated, ""The term "prosecution" is sufficiently comprehensive to include every step in an action from its commencement to its final determination.‟" (Melancon v. Superior Court, supra, 42 Cal.2d at pp. 707-708.) We construe Melancon v. Superior Court and Ray Wong v. Earle C. Anthony, Inc. as standing for the proposition that the "prosecution" ...


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