IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
January 27, 2011
PETER HALAMANDARIS, PLAINTIFF AND APPELLANT,
STEVEN A. SEPHOS ET AL., DEFENDANTS AND RESPONDENTS.
Super. Ct. No. CV023970
The opinion of the court was delivered by: Hull ,j.
Halamandaris v. Sephos CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Peter Halamandaris appeals from a judgment dismissing his action against defendants Steven A. Sephos, et al., due to dilatory prosecution. The trial court ruled the case was subject to mandatory dismissal for failure to bring it to trial within five years, and also dismissed the case for dilatory prosecution under the three-year discretionary dismissal statute. (Code Civ. Proc., §§ 583.310, 583.410; further section references are to this code.) We affirm the judgment.
FACTS AND PROCEEDINGS
The record on appeal is incomplete, making it difficult to construct a coherent narrative of the relevant procedural facts. As the appellant, plaintiff bore the burden to provide an adequate record to support his contentions of error. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) "To the extent the record is incomplete, we construe it against him." (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498.) Further, plaintiff has compounded the confusion in the record by making assertions that are not supported by record citations. We deem these assertions to be forfeited. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
On June 18, 2004, Peter and Anna Halamandaris sued Steven A. Sephos, Dual Arch International, Inc., and several Does (collectively, defendant), alleging fraud and related claims arising from a real estate financing transaction.
Plaintiffs filed a case management statement on November 23, 2004, estimating a five-day court trial was required, and that discovery should be complete by April 2005. A case management statement filed on January 14, 2005, reiterated the estimated date for completing discovery.
A minute order dated May 31, 2005, indicates no courtrooms were available. A minute order dated September 30, 2005, indicates a court trial was continued to January 23, 2006, at the request of counsel.
On April 11, 2006, Anna Halamandaris filed a substitution of attorney, indicating she was representing herself, but no substitution was filed for Peter Halamandaris.
On January 15, 2009, attorney Michael E. Platt substituted in, purportedly as counsel for both plaintiffs. It appears Peter Halamandaris bought the right to continue this action out of bankruptcy. He is the only appellant. Accordingly, we omit further references to Anna Halamandaris, the other original plaintiff in this case.
Also on January 15, 2009, Mr. Platt moved to specially set the case for trial, to avoid dismissal for dilatory prosecution. In a supporting declaration, he explained that prior counsel had been appointed to the bench, and plaintiffs were without counsel until Mr. Platt substituted in. Mr. Platt conceded nothing had been done to press this lawsuit since plaintiff began self-representation, but asserted this was due to representations by defendant that he would "'fix the problem,'" thereby purportedly lulling plaintiff--who had sued defendant for fraud--into inaction.
On June 5, 2009, defendant moved to dismiss the case based on the three-year discretionary dismissal statute. Plaintiff did not include this motion in the appellate record, but included the notice of motion and part of the opposition.
On June 15, 2009, the motion to dismiss was denied and the case was assigned for a jury trial for the next day.
A minute order for June 16, 2009, states that plaintiff sought a continuance "in that the plaintiff is not available." The trial court warned counsel the case was subject to dismissal in two days, the five-year anniversary of the filing of the complaint. The trial court granted the continuance, setting a trial assignment date of June 22, 2009, but noted "that if nothing is done within two days, the statute will run and the case will be dismissed." The hearing was reported, but the transcript is not in the appellate record.
Mr. Platt then filed what he characterized as an opposition to the trial court's purported motion to dismiss, and the June 22, 2009, trial assignment date was vacated.
On October 23, 2009, defendant moved to dismiss under both the three-year and five-year dismissal statutes. The motion alleged plaintiff filed bankruptcy in September 2007 and in March 2008 it was converted "to a Chapter 7. At that time, his lawsuit became the property of the trustee in bankruptcy which it remained until late May of 2009, at which time the plaintiff repurchased his right to sue[.]" Under governing law, this period was not excluded from the dismissal clock. (See Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 394, p. 836 (Witkin).) The motion also alleged that Mr. Platt's motion to specially set the case had been denied in February 2009, because the lawsuit then belonged to the bankruptcy trustee. Plaintiff did not appear for trial on June 16, June 22, and October 5, because he was incarcerated. Defendant argued that even if earlier unavailable courtrooms meant some time must be subtracted from the mandatory five-year clock, the case was subject to dismissal under the three-year discretionary clock. Defendant also argued that after the prior motion to dismiss had been denied, "plaintiff has failed to keep three trial dates, showing a further lack of diligence in prosecution."
Mr. Platt apparently filed an opposition to the motion to dismiss, but it is not in the appellate record. Therefore we do not know what arguments he made nor what evidentiary support he provided therefor, if any.
At a hearing on December 11, 2009, not attended by Mr. Platt, the trial court dismissed the case based on both the three-year and five-year dismissal statutes. At the hearing, defendant represented that the bankruptcy was filed in September 2007, and converted to Chapter 7 in March 2008. Counsel also represented that after plaintiff had been granted an October 5, 2009, trial date, he did not keep that date "by virtue of stipulating to continue to November 16th. On November 16th, the courtroom was unavailable. And we do not currently have a trial date."
On December 18, 2009, Mr. Platt filed a motion styled as a motion to reconsider and to vacate the dismissal.
A judgment was signed on December 23, 2009.
On February 22, 2010, plaintiff filed a notice of appeal from the judgment of dismissal.
On February 23, 2010, the motion to reconsider and to vacate the dismissal was denied.
As stated, the trial court dismissed the case under both the five-year mandatory dismissal statute and the three-year discretionary statute. We need only address the discretionary ruling, because plaintiff does not demonstrate any error in connection with that ruling, and it adequately supports the judgment. (See Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [judgment will be upheld if correct on "any theory"].)
An action may be dismissed if it is not brought to trial within three years after the action is commenced:
"The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [¶]. . .[¶]
"(2) The action is not brought to trial within the following times:
"(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B)." (§ 583.420, subd. (a)(2)(A).)
Plaintiff acknowledges the correct standard of review: "A reviewing court may not reverse a trial court's order granting dismissal for dilatory prosecution unless the plaintiff meets the burden of establishing manifest abuse of discretion resulting in a miscarriage of justice. [Citations.] An appellate court may not substitute its own discretion for that of the trial court and must uphold the dismissal order if the trial court has not abused its discretion." (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83.)
California Rules of Court, rule 3.1342(e) (Rule) sets forth a number of factors a trial court must consider in exercising its discretion to dismiss an action for dilatory prosecution. Plaintiff's opening brief does not argue that the trial court weighed these factors improperly. Because plaintiff does not head and argue any claim that the trial court abused its discretion in weighing those factors, we need not discuss them. (See Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9; People v. Roscoe (2008) 169 Cal.App.4th 829, 840.)
Instead, plaintiff contends the trial court made two errors of law, resulting in an abuse of discretion.
Plaintiff first contends the trial court abused its discretion by improperly considering a period of inactivity after the first three years of the case. Plaintiff reads section 583.420, quoted above, to mean that the relevant period to evaluate in considering whether to dismiss an action for dilatory prosecution is "Three years after the action is commenced," meaning the first three years of a case, and if a party is diligent for those years, a trial court cannot dismiss the action based on a later dilatory period.
This construction of the statute is not tenable. The statute states a motion to dismiss cannot be granted unless the action is not brought to trial within three years "after the action is commenced[.]" (§ 583.420, subd. (a)(2)(A).) In this case, the action was not brought to trial within that period, therefore the trial court retained discretion to consider whether the plaintiff had been diligent. It is well-settled that "A plaintiff has a duty to exercise diligence at every stage of the proceeding to expedite his case to a final determination." (King v. State of California (1970) 11 Cal.App.3d 307, 310; see Blank v. Kirwan (1985) 39 Cal.3d 311, 332 [discretionary dismissal case].) Plaintiff's construction of the statute would allow indefinite dilatory conduct, so long as it occurred after the first three years of the case.
Plaintiff cites Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89 (Elling), in support of his contention. That case construes former section 581a, providing for mandatory dismissal if summons is not served within three years. (See Elling, supra, 48 Cal.App.3d at p. 92, fn. 1.) The only relevant point we find in Elling is the statement that the three-year period runs from the commencement of the action. (Id., at p. 94.) We accept that the three-year period provided by section 583.420, subdivision (a)(2)(A) also begins from that date. But nothing in Elling supports the contention that a later dilatory period cannot be considered in ruling on a discretionary dismissal motion.
Second, plaintiff contends that because there had been an earlier motion to dismiss, the motion that was granted was defective. He reasons that it was in effect a reconsideration motion that did not comply with section 1008. Assuming he raised this point in the trial court, we may not reverse a judgment for a procedural irregularity absent a miscarriage of justice. (Cal. Const., art. VI, § 13; § 475; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) Because plaintiff does not make an explicit argument that the claimed procedural mistake caused prejudice, we are under no obligation to address the contention of error. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.)
Further, plaintiff cites Feingersh v. Lutheran Hosp. Society (1977) 66 Cal.App.3d 406 (Feingersh), as the sole authority for his contention that a second motion to dismiss must comport with the rules regarding reconsideration as set forth by section 1008. But Feingersh does not discuss section 1008. In fact, Feingersh states a trial court's earlier refusal to dismiss for delay "could not be viewed as a determination that, as a matter of law, plaintiff's delay was justified. Nor did that ruling bar future motions to dismiss . . . ." (Feingersh, supra, at p. 410.) "By denying the first motion to dismiss the trial court did not foreclose itself from future consideration of the previous delay as a part of the total picture of lack of diligence on the part of the plaintiff." (Id. at p. 412.) Thus, far from supporting his contention of error, the holding of Feingersh cuts against plaintiff's position.
In the reply brief, plaintiff seeks judicial notice of a bankruptcy document, and argues it shows there was cause for some of the period of inactivity in the case. We deny the request for judicial notice for several reasons. First, under the current appellate rules, the correct procedure to request judicial notice is to file a separate noticed motion, rather than burying the request in a brief. (Rules 8.54(a)(1), 8.252(a)(1); see Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 180, fn. 3; Canal Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 242-243; 9 Witkin, Cal. Procedure (5th ed. 2008), Appeal, § 309(2), p. 359.) Second, plaintiff has not demonstrated that the document was before the trial court when it ruled on the motion to dismiss. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493.) Third, at best, this document might tend to support a claim that the trial court abused its discretion in weighing the relevant factors in considering the motion to dismiss, by not excusing some of the delay. But, as stated, the opening brief did not argue that the trial court so abused its discretion. We decline to address issues raised for the first time in the reply brief. (See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808; 9 Witkin, supra, Appeal, § 723, p. 790.)
Because we uphold the dismissal under the discretionary three-year statute, we need not address plaintiff's contentions regarding the mandatory five-year statute, nor defendant's contentions that purport to address the merits of this lawsuit.
The judgment is affirmed. Plaintiff shall pay defendant's costs of this appeal. (Rule 8.278(a)(2).)
BLEASE , Acting P.J.
© 1992-2011 VersusLaw Inc.