APPEAL from the Superior Court of Riverside County. John F. Kraetzer, Judge. (Retired judge of the Alameda Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part. (Super.Ct.Nos. RIP084539 & RIP086270)
The opinion of the court was delivered by: Richli J.
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Gladys R. Greer died in 2003, leaving two sons, David and Dennis Greer. In 2004, Dennis filed an adversary proceeding against David, in David's capacity as the trustee under Gladys's trust. In 2005, Dennis filed a second adversary proceeding against David, in David's capacity as the executor under Gladys's will. The two proceedings were then consolidated. In 2009 -- more than five years after the filing of the first adversary proceeding, but less than five years after the filing of the second -- the trial court granted David's motion to dismiss the consolidated proceedings under the five-year dismissal statute. (Code Civ. Proc., § 583.310 et seq.)
Dennis appeals. We will affirm in part and reverse in part.
We will hold that the trial court properly dismissed the first adversary proceeding. Dennis argues that there were several periods during which it was impossible or impracticable to bring the first adversary proceeding to trial, and that these periods must be excluded from the five years. However, he cannot take advantage of the impossibility exception because he did not use reasonable diligence to bring that adversary proceeding to trial even after these periods had ended.
We will also hold that the trial court erred by dismissing the second adversary proceeding. Under the controlling California Supreme Court case, subject to exceptions not applicable here, consolidated actions must be treated as separate for purposes of the five-year dismissal statute.
In July 2003, David, as trustee of Gladys's trust, commenced In re Trust of Gladys R. Greer, case No. RIP084539, by filing a petition for instructions. In February 2004, Dennis filed an adversary proceeding in that case (Trust Proceeding). In it, he sought, among other things, an accounting.*fn1
In May 2004, David commenced In re Estate of Gladys R. Greer, case No. RIP086270, by filing a petition for probate of Gladys's will. In November 2004, David was appointed executor. In January 2005, Dennis filed an adversary proceeding in that case (Estate Proceeding).
In August 2005, the trial court consolidated the Trust Proceeding with the Estate Proceeding.
In December 2008, the consolidated case was set for trial on April 13, 2009 -- i.e., more than five years after the filing of the Trust Proceeding, but less than five years after the filing of the Estate Proceeding.
On April 2, 2009, David filed a motion to dismiss, based on Dennis's failure to bring the action to trial within five years. Dennis submitted a written opposition.*fn2 In it, as well as at the hearing on the motion, he argued that the five-year statute had been tolled from May 16, 2005, when the trial court ordered an accounting, through August 15, 2007, when the accounting was completed. He also argued that the five years had been tolled during a six-month period that David had requested and been granted for the purpose of taking discovery. Finally, he argued that, even if the Trust Proceeding had to be dismissed, the Estate Proceeding did not.
The trial court dismissed the entire consolidated proceeding. It ruled that the accounting did not toll the statute, because Dennis could still have brought the action to trial once the accounting was done: "[O]bviously some of the delay in the accounting was nobody's fault, but . . . it was done in the Fall of 2007. There was . . . no . . . attempt to bring this to the attention of the Court to speed the trial within the five years . . . ." It also indicated that it was dismissing the Estate Proceeding, as well as the Trust Proceeding, because the causes of action in the two cases were essentially the same. Thus, it entered judgment dismissing the consolidated proceeding.*fn3
A. The Scope of the Relevant Evidence.
"'[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.]" (In re Zeth S. (2003) 31 Cal.4th 396, 405.) In this case, the evidentiary record that was before the trial court basically consisted of the declarations and exhibits attached to the moving and opposition papers on the motion to dismiss. (See Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1267, fn. 2.)
David did not file any reply papers. While the motion was pending, however, he did file an ex parte application to continue the trial; it included a new declaration by his counsel, which in turn included several new exhibits. In a single (and not entirely grammatical) sentence, David's counsel claimed that he was also replying to Dennis's opposition. Nevertheless, this declaration was not properly before the trial court in connection with the motion to dismiss. First, given the caption of the document, this single sentence was insufficient to alert the trial court that it was expected to consider it as a reply. Second, it was inappropriate to include new evidence in reply papers. (See Code Civ. Proc., § 1010 [copy of any papers on which motion is based must accompany notice of motion]; see also Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [Fourth Dist., Div. Two] [court has discretion to consider additional evidence in reply papers, provided opposing party has notice and an opportunity to respond].)
In this appeal, David relies on the transcripts of two hearings, on January 26, 2006 and March 14, 2006. We granted his motion to augment the record with these transcripts. This does not mean, however, that they are relevant. They are ...