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Terry Williams v. Arthur Weiss et al

November 3, 2011

TERRY WILLIAMS, PLAINTIFF AND APPELLANT,
v.
ARTHUR WEISS ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. PC20010443)

The opinion of the court was delivered by: Hull , Acting P. J.

Williams v. Weiss 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Terry Williams appeals from an order of the trial court granting the motion of defendants Arthur and Fran Weiss (the Weisses) to dismiss the complaint based on plaintiff's failure to bring the matter to trial within five years, as required by Code of Civil Procedure section 583.310. (Further undesignated section references are to the Code of Civil Procedure.) Plaintiff commenced this action on August 10, 2001, and the trial court dismissed it on August 18, 2009, more than eight years later.

"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.)

In computing the period during which this action was pending, the trial court excluded two periods, one during which the court expressly stayed all proceedings pending resolution of whether the case should be consolidated with another and transferred to Los Angeles County, and another during which a special motion to strike was working its way through this court. Excluding those periods, the trial court determined the action had been pending for 2,044 days, or approximately 5.6 years.

Plaintiff contends the trial court erred in refusing to exclude other periods from its calculation. Among others, plaintiff refers to a period of nearly a year during which the defendants' motion for change of venue to Los Angeles County was pending and other periods during which statements of disqualification of the presiding judge were pending. We agree these periods should have been excluded from the calculation of the time during which this action was pending. With the exclusion of these periods, five years had not passed by the time the court ruled on the motion to dismiss. Therefore, the trial court erred in granting the Weisses' motion, and we reverse.

Facts and Proceedings

By way of background, the facts underlying this lawsuit are taken from an earlier decision of the Court of Appeal, Second Appellate District, in the guardianship proceedings involving plaintiff's daughter Melissa.

"On March 28, 1997, [plaintiff's wife] died. She was survived by [plaintiff] and their two daughters, then 11-year-old Melissa and 10-year-old Courtney. The family was residing in Los Angeles. [The Weisses] are the decedent's parents and Melissa's grandparents . . . . [Plaintiff] later relocated to Placerville but allowed his daughters to live with [the Weisses] in Los Angeles to finish the school year. On July 23, 1999, [the Weisses] filed a petition for guardianship of the minors. However, Courtney eventually returned to her father's custody.

"On June 12, 2001, after three days of trial of the petition for guardianship of Melissa, the trial court issued a judgment denying the petition. The trial court specifically found, inter alia, that [plaintiff] is a fit and proper parent to his children; he has the ability to provide for their needs; it is in Melissa's best interest to be returned to her father's custody; and there is no basis for the trial court to interfere with the constitutionally protected fundamental right of [plaintiff] to parent his children. The trial court then ordered that Melissa 'shall be returned to the custody of [plaintiff], forthwith.' (Italics added.) At their request for time to allow Melissa to finish the school year and [the Weisses] to appeal, the trial court granted [the Weisses] a brief stay of the judgment to July 7, 2001.

"On June 27, 2001, [the Weisses] filed their notice of appeal from the judgment denying the guardianship petition.

"That same day, [the Weisses] executed purported consent forms, granting their permission for Melissa, then age 16, to marry 19-year-old Austin [Holzer]. On the consent forms, [the Weisses] indicated they were consenting as Melissa's legal guardians, despite the fact the June 12, 2001, judgment unambiguously denied [the Weisses'] guardianship petition. This purported consent was written on the letterhead of [the Weisses'] counsel, Melodye S. Hannes.

"On June 28, 2001, Melissa arrived in the Bahamas accompanied by Attorney Hannes.

"Meanwhile, [the Weisses] concurrently moved the trial court for a stay of the judgment pending appeal on the ground Melissa would suffer detriment if she were to reside with [plaintiff] during that time. In seeking that stay, [the Weisses] failed to disclose to the trial court Melissa's imminent nuptials. [¶] . . . [¶]

"On July 2, 2001, Melissa was purportedly married to Austin [Holzer] in the Bahamas. Attorney Hannes executed a Bahamian 'Certificate by Parents or Guardian of Consent to Marriage by a Minor,' indicating [the Weisses] consent to the marriage. In helping to secure the marriage in the Bahamas, [Hannes] apparently did not disclose to the Bahamian Registrar General the June 12, 2001 judgment denying the guardianship petition. The marriage was solemnized in the presence of Hannes as one of the witnesses.

"On July 7, 2001, Melissa returned to [plaintiff] in Placerville, where she remained until month's end. [¶] . . . [¶]

"On July 30, 2001, [plaintiff] first learned of his daughter's Bahamian marriage when he found a note in his mailbox signed 'Melissa H.,' Austin's surname. . . ." (Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1296-1298, footnotes omitted.)

On August 10, 2001, plaintiff initiated this action against the Weisses, Hannes, and Holzer alleging conspiracy to interfere with the personal relationship between plaintiff and his daughter, wrongful interference with personal relationship, invasion of privacy and conversion regarding certain of plaintiff's personal property. The clerk's transcript of the proceedings thereafter is over 7,000 pages and 26 volumes long. We shall provide here only an outline of those proceedings in order to place the delay in bringing this action to trial in perspective. Further details shall be provided in the discussion portion of this opinion as relevant to the issues raised on appeal.

On September 18, 2001, Melodye Hannes and Richard Marcus filed demurrers to the complaint on behalf of all defendants. On October 22, 2001, the trial court continued the hearing on the demurrers to November 19, 2001, and stayed all discovery pending the hearing.

On November 19, 2001, the court issued a tentative decision overruling the defendants' demurrers. The defendants requested oral argument, which was set for 10 days later. On November 29, the court ordered the parties to submit supplemental briefs within 10 days and declared that discovery was not stayed.

On December 7, 2001, the defendants filed a motion for an order quashing notice of depositions and staying the defendants' depositions scheduled for December 10 and 11. On December 12, the defendants filed a motion for protective order requesting, among other things, a stay of all discovery pending resolution of their demurrers.

On December 14, 2001, Hannes and Marcus filed demurrers on behalf of Charlene Williams, who had apparently been added as a Doe defendant.

In January 2002, Judge Pro Tem Keller set trial for August 6, 2002.

After a series of continuances, the further hearing on the defendants' demurrers and motion for protective order was set for March 25, 2002. However, on that date, plaintiff filed a first amended complaint, which included a new claim for malicious prosecution of the prior guardianship proceeding.

At the March 25, 2002, hearing, the trial court took the pending motions under submission and stayed all proceedings pending consideration of whether the action should be consolidated with another matter filed by plaintiff that sought to annul his daughter's sham marriage.

On April 26, 2002, the defendants filed demurrers to the first amended complaint.

On May 31, 2002, the trial court declined to order consolidation and lifted the stay imposed on March 25. The court also issued its order sustaining the defendants' demurrers to the original complaint nunc pro tunc to March 25. (The trial court excluded the 38-day period from March 25, 2002, to May 31, 2002, from the calculation of the five years.)

On July 11, 2002, the defendants filed a motion to vacate all hearing dates, including the August 6 trial date, because the court had not yet ruled on their demurrers to the first amended complaint. The court granted the motion, vacated all dates and referred the case to Judge Riley for resetting.

On July 15, 2002, the trial court ruled on the defendants' demurrers, sustaining the demurrers as to the malicious prosecution claim but overruling the demurrers on all other claims. The court later set a hearing for August 12, 2002, on the defendants' motions to quash service of deposition notices and for a protective order.

On July 31, 2002, the defendants answered the first amended complaint.

On August 12, 2002, the hearing on the defendants' discovery motions was taken off calendar due to unavailability of plaintiff's counsel. That same day, Holzer obtained independent counsel. The hearing on the defendants' discovery motions was later reset for November 18, 2002.

On October 24, 2002, the Weisses, Hannes and Charlene Williams moved for a change of venue to Los Angeles County and to stay the proceedings "pending the resolution of other proceedings which are directly related to the instant matter . . . ."

On November 1, 2002, Judge Keller set a status conference for November 19, 2002. On November 7, 2002, Marcus notified Judge Keller by letter that the motion for change of venue acts as an automatic stay and, therefore, the court did not have jurisdiction to order a status conference.

On November 18, 2002, the hearing on the defendants' motion for change of venue was continued to December 16, 2002. The next day, Judge Keller continued the status conference to January 8, 2003.

On November 22, 2002, plaintiff filed a request for dismissal as to Holzer. The dismissal was entered the same day.

On December 16, 2002, the hearing on the defendants' motion to change venue was continued to January 13, 2003. One week later, the defendants' discovery motions were rescheduled for January 27, 2003.

On January 8, 2003, Judge Keller set a new trial date for July 29, 2003.

On January 13, 2003, the hearing on the defendants' motion to change venue was continued to January 27, the same date as the hearing on the defendants' discovery motions. However, on January 27, Judge Wagoner recused himself due to a conflict concerning a prior matter and referred the case to Judge Kingsbury for reassignment. All pending hearing dates were vacated.

Nearly three months later, on March 13, 2003, the case was reassigned to Judge Kingsbury and referred to calendaring for a new trial date. On April 11, the matter was referred to Judge Keller for a status conference on May 12.

On April 23, 2003, the defendants notified the court that plaintiff filed a bankruptcy petition on April 11. In this notice, the defendants indicated the instant case "is stayed until further order from the Bankruptcy Court or notice from the Trustee."

On May 12, 2003, Judge Keller continued the status conference to June 9. On June 9, Judge Keller set a new trial date for December 9, 2003.

On July 3, 2003, the court scheduled a hearing for August 13 on the defendants' discovery motions and motion to change venue, as well as plaintiff's motion to compel depositions.

On July 17, 2003, attorney Marcus filed in the bankruptcy court, on behalf of plaintiff's daughter Melissa, a creditor claim objecting to discharge.

On August 1, 2003, attorney Marcus filed in the bankruptcy court, on behalf of Arthur Weiss as a creditor, a motion to remove the case to the bankruptcy court. In a minute order of August 7, Judge Kingsbury indicated the notice of removal stayed all further proceedings in the case. She therefore vacated the dates for trial and the hearing on the various motions.

On August 28, 2003, the bankruptcy court remanded the matter back to the state court.

On September 4, 2003, the trial court scheduled a hearing for September 26, 2003, on the various motions.

On September 16, 2003, plaintiff requested judicial notice that disciplinary charges had been filed against Hannes and Marcus with the State Bar regarding their joint representation of the Weisses in connection ...


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