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Terry Williams v. Arthur Weiss et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 with the guardianship of Melissa and the sham marriage.

On September 26, 2003, the trial court conducted a hearing on the various motions pending before it. Neither the defendants nor Marcus appeared. The court denied the defendants' discovery motions and motion for change of venue and granted plaintiff's motion to compel depositions, ordering the defendants to appear for deposition within 21 days.

On October 14, 2003, Hannes appeared at the offices of plaintiff's counsel for her deposition, represented by Marcus. However, part way through the deposition, Marcus was served as a Doe defendant. At that point, the deposition was suspended.

On October 20, 2003, Hannes filed, on behalf of herself, the Weisses and Charlene Williams a motion for protective order or stay "until the court determines the Motion to Strike and/or demurrer which will be filed by Mr. Marcus, through his insurance." Among other things, this motion was based on the ground "that Mr. Marcus cannot continue to represent the defendants."

The Weisses failed to appear at their scheduled depositions on October 21 and 22, 2003.

On November 20, 2003, Marcus filed on his own behalf demurrers and a motion to strike the complaint.

On November 25, 2003, Charlene Williams filed a substitution of attorneys.

On December 5, 2003, Marcus filed on his own behalf a special motion to strike the complaint as a Strategic Lawsuit Against Public Participation (SLAPP) pursuant to section 425.16.

On December 15, 2003, the trial court granted the defendants' motion to take discovery motions off calendar, vacated all dates and stayed further discovery pending resolution of Marcus's anti-SLAPP motion. As the basis for this ruling, the court explained: "[T]here is a serious conflict of interest which was expatiated upon at oral argument. Melody Hannes is a party defendant and, without ruling on the issue, it would appear that she cannot represent any defendant other than herself. At least until the Marcus's [sic] Special Motion to Strike and demurrer have been ruled upon, Richard Marcus is a party defendant and he asserts that there is a non-waivable conflict of interest between himself and his clients. The Court agrees with this view. Effectively, therefore, the remaining defendants are not represented by counsel at this point and the Court does not believe that any of the motions calendared for December 19, 2003 can be ruled upon now."

On March 3, 2004, Judge Kingsbury entered an order on Marcus's demurrers and motions to strike, sustaining a special demurrer for uncertainty with leave to amend but overruling the general demurrer. The court noted that plaintiff had already submitted a second amended complaint and ordered that pleading filed. She then determined Marcus's special motion to strike the first amended complaint is moot, but that Marcus may file a new motion on the second amended complaint.

On April 29, 2004, Marcus appealed Judge Kingsbury's order to this court. On July 23, Judge Kingsbury stayed all proceedings pending resolution of Marcus's appeal.

On October 20, 2005, this court reversed Judge Kingsbury's order with directions to the trial court to grant Marcus's anti-SLAPP motion and to enter judgment in his favor. The remittitur was issued by this court on January 23, 2006. (The trial court excluded the 779-day period from December 5, 2003, when Marcus filed his anti-SLAPP motion, through January 23, 2006, when this court issued its remittitur, from the calculation of the five years.)

On January 27, 2006, Marcus filed a motion to be relieved as counsel for Hannes. As the basis for the motion, Marcus declared he had been unable to contact Hannes, the State Bar had taken over her law practice, and Hannes was last known to be residing in Mexico at an unknown location. The court granted the motion. On February 2, 2006, the Weisses filed a substitution of counsel, designating Marcus as their attorney in place of Hannes.

In February 2006, the case was reassigned from Judge Kingsbury to Judge Lasarow.

In February and March 2006, plaintiff requested that the court set a hearing on all pending motions. On March 9, Judge Lasarow ordered the parties to meet and confer by March 24 on their discovery disputes.

On March 16, 2006, the State Bar issued a decision recommending that Marcus be suspended from the practice of law for three years due to his participation in the sham marriage and his failure to notify the court. The recommendation further provided that such suspension be stayed and that Marcus be placed on probation on the condition he serve actual suspension of nine months.

On May 2, 2006, plaintiff moved to disqualify Marcus from representing the Weisses on the basis of a conflict and that Marcus's suspension by the State Bar may result in a delay of the proceedings. On May 26, the trial court denied plaintiff's motion to disqualify Marcus. However, in its ruling, the court noted it was unaware of the status of Marcus's suspension and requested that Marcus notify the court "what arrangements have been made for continuous representation of his clients during the time he will be actually suspended from practicing law."

At a hearing on June 9, 2006, Marcus informed the court the State Bar had only recommended that he be suspended and such recommendation must be approved by the State Supreme Court, which could take up to a year and a half. The court expressed its concern that Marcus's suspension could leave the Weisses without representation and warned it would not continue the trial date in such event.

At a settlement conference on June 30, 2006, Marcus's deposition was scheduled for August 8, 2006. However, on July 12, Marcus moved for a protective order and to quash the deposition notice.

On September 8, 2006, the court granted plaintiff's motion to have matters admitted as to Hannes due to her failure to respond to requests for admissions.

Also on September 8, 2006, plaintiff filed a statement of disqualification of Judge Lasarow due to bias. On September 26, Judge Lasarow ordered the challenge stricken as invalid on its face.

On October 8, 2006, plaintiff filed a petition for writ of mandate in this court challenging Judge Lasarow's order. On November 16, we gave notice we were considering issuing a peremptory writ in the first instance unless the trial court vacates its order. On December 4, Judge Lasarow vacated his order and thereafter filed an answer. On January 9, 2007, the trial court overruled the motion to disqualify.

On January 23, 2007, plaintiff filed a motion for summary adjudication of the third cause of action for invasion of privacy. On March 5, 2007, the Weisses filed a motion for summary judgment or, in the alternative, summary adjudication of the various causes of action.

On March 16, 2007, Judge Keller set a new trial date for October 1, 2007.

On June 15, 2007, the trial court issued its tentative ruling granting plaintiff's motion for summary adjudication of the third cause of action but declining to rule on the Weisses' counter motion. As to the latter, the court explained this was "due to plaintiff's failure to comply with the procedural requirements applicable to Separate Statements . . . ." Plaintiff was given leave to file a separate statement in conformity with the law. Plaintiff thereafter filed a revised separate statement.

On August 29, 2007, the trial court issued its tentative ruling, denying the Weisses' motion for summary judgment or summary adjudication. That ruling was to become final within 10 days unless counsel requested oral argument. However, before the end of the 10-day period, defendant filed an objection to Judge Lasarow presiding over the matter due to bias. On September 26, Judge Lasarow vacated all hearings pending resolution of the objection.

On October 25, 2007, the trial court overruled the Weisses' objection.

Five days later, Judge Lasarow scheduled a hearing on the Weisses' motion for summary judgment for December 14, 2007. At the December 14 hearing, Judge Lasarow questioned the Weisses about whether they were aware of the State Bar proceedings against their counsel. The Weisses answered in the affirmative and indicated they were in the process of securing new counsel. The court indicated trial would have to be set in April or May of 2008 because it would be unfair to force new counsel for the Weisses to proceed to trial any sooner.

On December 26, 2007, Judge Lasarow issued his order denying the Weisses' motion for summary judgment or summary adjudication.

On December 28, 2007, the Weisses filed a substitution of counsel replacing Marcus with their current counsel, Robert Silverman.

On January 14, 2008, trial was reset for April 28, 2008.

On January 25, 2008, the Weisses filed a petition for writ of mandate in this court seeking to overturn the denial of their motion for summary judgment. On March 13, we denied the petition.

On April 25, 2008, the trial court vacated the April 28 trial date on its own motion and set a new status conference for May 19. The status conference was later continued to May 28.

On May 28, 2008, Judge Keller set a new trial date for August 11, 2008.

On July 21, 2008, the Weisses filed motions to dismiss the case under both the mandatory five-year statute (§ 583.310) and the discretionary two-year statute (§ 583.420, subd. (a)(2)(B)).

On July 29, 2008, the court vacated the August 11 trial date on its own motion and set a new trial date for October 6, 2008. The following day, plaintiff's counsel notified the court she did not consent to vacation of the trial date unless the delay would be excluded in considering the Weisses' motion to dismiss.

On September 8, 2008, plaintiff filed a peremptory challenge to Judge Lasarow. On September 10, the case was ordered to Department 9 and all hearings were vacated.

On April 20, 2009, plaintiff filed a motion for summary adjudication of the first and second causes of action of the operative complaint.

On May 27, 2009, trial was set in Department 9 for September 14, 2009. However, on July 9, the trial court issued a tentative ruling granting the Weisses' motion to dismiss under the mandatory five-year rule. After excluding the period in 2002 during which the action was stayed and the period while Marcus' anti-SLAPP motion was being resolved, the court concluded the action had been pending for 2,044 days, or approximately 5.6 years. The court dropped the motion for discretionary dismissal as moot. On August 18, 2009, the court issued its order granting the motion to dismiss.

Discussion

Section 583.310 requires that an action be brought to trial within five years after it is commenced. "[T]he purpose of the five-year statute is to prevent avoidable delay." (De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 371.) It "serves 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 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.)

Whatever else might be said about this action, it cannot be said that plaintiff has not tried to move this case along to trial during the more than eight years it has been pending. Nevertheless, section 583.310 is mandatory. Thus, the question becomes whether any of the eight years may be excluded from the five-year computation.

Section 583.340 provides for the exclusion from computation of the time during which the action was pending any period during which: "(a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] [or] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." (§ 583.340.)

In this instance, the trial court computed the number of days between August 10, 2001, the date the complaint was filed, and July 9, 2009, when the tentative ruling was issued, to be 2,891. The court then excluded two periods of 38 days and 779 days respectively to arrive at 2,044, or 5.6 years, during which the action had been pending. Under this calculation, dismissal was mandatory.

Plaintiff contends the trial court erred in failing to exclude other portions of the preceding eight years during which one or more of the section 583.340 exceptions applies. However, as to subdivision (c), we note that plaintiff's opposition to the Weisses' motion did not ask the court to exclude many of the periods he now claims should have been excluded. Although the first two subdivisions of section 583.340 are mandatory, the third is a matter of trial court discretion.

"The determination of whether the impossibility exception applies involves a fact-specific inquiry and depends 'on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles. [Citation.]' [Citation.] The plaintiff . . . bears the burden of proof with respect to the existence of circumstances warranting application of the impossibility exception. [Citations.] The trial court has discretion to determine whether the impossibility exception applies, and that decision will be disturbed on appeal only if an abuse of that discretion is shown. [Citations.]" (Perez v. Grajales (2008) 169 Cal.App.4th 580, 590-591.)

Because plaintiff did not request exclusion of some of the periods he now seeks to eliminate, he did not give the trial court an opportunity to exercise its discretion. "Since we review a trial court's decisions concerning the applicability of the impossibility exception for abuse of discretion [citation], it would indeed be peculiar for us to determine here that the court abused discretion it was never given an opportunity to exercise." (Perez v. Grajales, supra, 169 Cal.App.4th at p. 592.) Plaintiff has therefore forfeited any claim that the trial court should have excluded periods he failed to raise below as they relate to exclusions under subdivision (c) of section 583.340.

The Weisses argue all periods plaintiff now seeks to have excluded should be disregarded, because plaintiff failed to identify which periods he sought below to have excluded. The Weisses contend they have been prejudiced by this violation of "the most basic rules of Appellate Procedure." However, we have had no difficulty locating plaintiff's opposition to the Weisses' motion to dismiss and identifying the periods he sought to have excluded below. Furthermore, as to those periods falling within the first two subdivisions of section 583.340, exclusion is not a matter of trial court discretion. Hence, we may consider whether those periods should have been excluded as a matter of law.

I

October 22, 2001 to November 29, 2001

In his opposition below, plaintiff sought to exclude the period from October 22, 2001 to November 29, 2001, during which a discovery stay was in effect. The court gave the following rationale for rejecting such exclusion: "The plaintiff has not asked the court to take judicial notice of any court order staying the matter from October 22, 2001 to November 29, 2001, there is no evidence of a stay or stipulation between the parties during said period, and defendants contend that the matter proceeded unimpeded from August 10, 2001 to February 24, 2004 when the parties stipulated to a stay of 60 days to April 24, 2004. Thus, the court will not exclude the claimed 38 days."

An examination of the court's file in this matter shows that on October 22, 2001, the court did indeed stay all discovery pending the hearing on the defendant's demurrers and lifted that stay on November 29, 2001. We are aware of no requirement that the parties request judicial notice of matters in the court's own file of the case under consideration, although careful practice on the part of plaintiff's counsel suggests she should have brought the stay order to the court's attention, which she apparently failed to do.

The Weisses argue plaintiff also failed to submit a single exhibit in support of his opposition to the motion to dismiss. However, since plaintiff's opposition was essentially that there were many periods throughout the eight-year history of this case that should be excluded, the Weisses would apparently have plaintiff attach as exhibits the bulk of the court's 26-volume file.

Nevertheless, we do not agree with plaintiff that the trial court was required to exclude the period during which the temporary discovery stay was in effect. As the California Supreme Court recently explained in Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717 (Bruns), section 583.340, subdivision (b), applies only to "complete stays that are 'used to stop the prosecution of the action altogether.'" (Bruns, at p. 730.) A discovery stay is not a complete stay of the action. Any stay less than a total stay is governed by section 583.340, subdivision (c). (Bruns, at p. 726.) Here, the trial court failed to consider whether the discovery stay rendered bringing the action to trial impossible, impracticable, or futile during the 38-day period.

II

December 7, 2001 to March 24, 2002

On December 7, 2001, the defendants filed a motion to quash the notice of depositions served on them by plaintiff while the discovery stay mentioned in the preceding section was in effect. On December 12, the defendants filed a motion for protective order seeking to stay all discovery until the court ruled on their demurrers to the complaint. On March 25, 2002, the trial court did in fact stay all proceedings, and the period thereafter until May 31, 2002, was excluded from the five-year calculation.

Plaintiff contends the period from December 7, 2001 to March 24, 2002, should also have been excluded. He repeatedly asserts that, during this period, prosecution of the action was stayed or he was precluded from pursuing the action. Plaintiff further argues the defendants themselves represented to the court that prosecution of the action was stayed so long as their motion to quash was pending.

Plaintiff misreads the record. In light of the motion to quash, the most that can be said is that completion of the noticed depositions was stayed, not prosecution of the entire action. We find nothing in the record even suggesting that defendants ever claimed otherwise. Plaintiff was free to pursue other discovery and otherwise prosecute the case.

In rejecting exclusion of this period from the five-year calculation, the trial court indicated "no documentary evidence supports this contention." Because this statement comes right after the court pointed out plaintiff failed to request judicial notice of any court order staying the case from October 22, 2001 to November 29, 2001, we assume the court was again referring to plaintiff's failure to request judicial notice of any court order for a stay between December 7, 2001, and March 24, 2002. Hence, it does not appear the court ever exercised its discretion under section 583.340, subdivision (c), to consider whether the stay of depositions rendered bringing the action to trial impossible, impracticable or futile.

III

June 1, 2002 to December 4, 2003

Plaintiff contends the period from June 1, 2002, through December 4, 2003, should have been excluded. However, in his opposition to the Weisses' motion to dismiss, plaintiff did not seek exclusion of this entire period, only portions of it. Thus, to the extent plaintiff contends bringing the action to trial was impossible, impracticable or futile, we shall consider only those portions.

Plaintiff sought exclusion of nearly a year, between July 12, 2002, and July 3, 2003, due to continuances granted to the defendants. On July 12, 2002, the court granted the defendants' application to vacate a trial date set for less than a month later on the ground that the court had not yet ruled on the defendants' demurrers to the complaint. The court ruled on those demurrers three days later, sustaining in part and overruling in part. Thereafter, various hearings were rescheduled. On October 24, 2002, the defendants moved for a change of venue to Los Angeles County and requested a stay until completion of related proceedings. Hearings continued to be rescheduled.

On November 21, 2002, the defendants moved to quash deposition notices due to defects in service. On December 23, 2002, the hearing on that motion was rescheduled for January 23, 2003. That hearing was later rescheduled to January 27 but, on that date, the assigned judge recused himself due to a conflict, and all pending dates were vacated. On March 13, 2003, the case was assigned to Judge Kingsbury. On June 9, 2003, trial was reset for December 9, 2003. On July 3, the court set a hearing on the various pending motions. That hearing ultimately took place on September 26, 2003, at which time the motion to quash deposition notices was denied.

In its order granting the Weisses' motion to dismiss, the trial court concluded the various delays occasioned by the defendants' motion to quash the deposition notices and the rescheduling of hearings do not warrant excluding any days from the calculation of the five-year period. We find no abuse of discretion in this regard. With the exception of the period after October 24, 2002, which we discuss later, nothing occurred during this period that would require exclusion from the five-year calculation.

Under section 583.340, subdivision (c), "the trial court must determine what is impossible, impracticable, or futile 'in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.' [Citations.] A plaintiff's reasonable diligence alone does not preclude involuntary dismissal; it is simply one factor for assessing the existing exceptions of impossibility, impracticability, or futility. [Citation.] '"[E]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation." [Citation.]' [Citation.] 'Time consumed by the delay caused by ordinary incidents and proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions.' [Citation.] Determining whether the subdivision (c) exception applies requires a fact-sensitive inquiry and depends 'on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles.' [Citation.] '"[I]mpracticability and futility" involve a determination of "'excessive and unreasonable difficulty or expense,'" in light of all the circumstances of the particular case.' [Citation.]" (Bruns, supra, 51 Cal.4th at pp. 730-731.)

Rescheduling of hearings is a common occurrence in litigation and is reasonably to be expected and anticipated. Plaintiff was not precluded from pursuing his case; it was just rendered more difficult. Such added difficulty does not require exclusion from the five-year calculation.

IV

August 1, 2003 to August 28, 2003

On April 23, 2003, the defendants informed the trial court that plaintiff had filed for bankruptcy on April 11, 2003. The notice continued: "Because the lawsuit is now the property of the bankruptcy estate, this matter is stayed until further order from the Bankruptcy Court or notice from the Trustee." On August 1, 2003, Arthur Weiss, a claimant of the bankruptcy estate, filed a notice of removal of the case to bankruptcy court. On August 7, Judge Kingsbury issued a minute order indicating the action was stayed upon filing of the notice of removal and vacated all pending court dates. On August 28, the bankruptcy court remanded the matter back to the state court.

Plaintiff contends the trial court should have excluded from the five-year calculation the time during which the case was removed to the bankruptcy court. We agree.

In refusing to exclude this period, the trial court explained that the automatic stay occasioned by a bankruptcy filing does not apply to claims asserted by the debtor, only those asserted against the debtor. That is correct as far as it goes. (See Shorr v. Kind (1991) 1 Cal.App.4th 249, 254-255; Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 164; see also Shah v. Glendale Federal Bank (1996) 44 Cal.App.4th 1371, 1375.) During the pendency of the bankruptcy, the state court retains jurisdiction over the action and the bankruptcy trustee is free to prosecute the action in the state court on behalf of the plaintiff. (Lauriton, at p. 164.)

However, in this matter, we do not have simply a bankruptcy filing by a party who is asserting claims against others. In this instance, Arthur Weiss removed the case to the bankruptcy court as a claimant against plaintiff. Removal of a case to federal court divests the state court of jurisdiction over the matter until it is remanded. (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 356.) The period during which the action was removed must be excluded from the five-year calculation. (Id. at pp. 358-359.) Furthermore, the record before us indicates the trial court affirmatively stayed the proceedings during the bankruptcy removal. Thus, the court should have excluded the 28 days during which the case was removed to the bankruptcy court.

V

October 24, 2002 to September 26, 2003

Plaintiff contends the period from October 24, 2002 to September 26, 2003, should have been excluded. As noted above, on October 24, 2002, the defendants filed a motion to change venue to Los Angeles County and requested a stay of proceedings until completion of other actions involving these same parties. In a letter to the court on November 7, counsel for the defendants indicated the filing of the motion for change of venue acted as an automatic stay. Thereafter, various matters were set for hearing and rescheduled, but no substantive determinations on any pending motions were made by the court until September 26, 2003, when the trial court ruled on various motions, including the defendants' motion for change of venue, which was denied.

"Generally, the filing of a motion for change of venue operates as a supersedeas or stay of proceedings, and the court cannot rule on other substantive issues while the motion for change of venue is pending. [Citations.]" (Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1303-1304; see also South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 655; Pickwick Stages System v. Superior Court (1934) 138 Cal.App. 448, 449.) While such a motion is pending, no court has jurisdiction to proceed on the matter. (South Sutter, LLC, at p. 655.) "[T]he suspension of jurisdiction and stay exclusions [of section 583.340] are 'express statutory exception[s] to the five-year . . . bar, separate and distinct from exceptions based upon impossibility or impracticability. Where lack of jurisdiction [or a stay] is asserted, plaintiff's diligence, or lack thereof, has no place in the analysis.'" (Spanair S.A. v. McDonnell Douglas Corp., supra, 172 Cal.App.4th at p. 358.)

The filing of the motion for change of venue suspended all further substantive actions of the trial court until the motion was decided. The Weisses contend, nevertheless, that the action continued apace despite the automatic stay. They point to various filings by the parties and hearings conducted by the court during this period. However, as noted above, no substantive determinations on any pending motions were made during this period. Furthermore, the fact the trial court or the parties may not have recognized the matter was stayed does not negate that this was in fact the case.

The Weisses also contend plaintiff failed to raise this issue below in opposition to their motion to dismiss. As a general matter, appellate courts will not consider issues or theories raised for the first time on appeal. (Johanson Transp. Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588.) However, an exception to this general rule exists where the issue raised is one of law to be applied to undisputed facts. (Ibid.) That is the case here. As a matter of law, and despite that the parties and the trial court may have proceeded otherwise, this matter was stayed during the pendency of the defendants' motion to change venue. Thus, the 338 days between October 24, 2002, and September 26, 2003, should have been excluded from computation of the five-year period.

It should be noted, however, that the period during which the case was removed to the bankruptcy court is subsumed within this period. Thus, the period of the bankruptcy stay should not be counted twice in determining whether the matter had been pending for five years.

VI

September 8, 2006 to January 9, 2007

September 7, 2007 to October 25, 2007

On September 8, 2006, plaintiff filed a statement of disqualification of Judge Lasarow for bias (§ 170.3, subd. (c)). On September 26, Judge Lasarow struck the challenge as invalid on its face. Plaintiff filed a petition for writ of mandate in this court, which we granted. Thereafter, Judge Lasarow vacated his ruling striking the challenge and filed an answer. On January 9, 2007, the trial court overruled the statement of disqualification.

On September 7, 2007, the Weisses filed their own objection to Judge Lasarow for bias. That objection was overruled on October 26, 2007.

Plaintiff contends the foregoing periods of 123 days and 48 days respectively, during which the parties' respective notices of disqualification were pending, should have been excluded from the five-year calculation. We agree.

In Nail v. Osterholm (1970) 13 Cal.App.3d 682 (Nail), the action was filed on October 23, 1963, and trial was set to commence in the middle of 1967. However, on the day of trial, the assigned judge indicated he was acquainted with one of the defendants, and the plaintiff exercised a peremptory challenge pursuant to section 170.6. When no other judge was available to try the case, the assigned judge indicated an outside judge would have to be assigned by the Judicial Council. However, the court took no further action and the case languished for many months. Trial was eventually reset for February 1969, more than five years after the case was filed. In December 1968, the defendants moved to dismiss under the five-year statute, and the motion was granted. (Id. at pp. 685-686.)

The Court of Appeal concluded the period of delay following the peremptory challenge must be excluded from the five-year calculation. According to the court, former section 583 "must be reconciled with the fundamental right of a litigant to disqualify a trial judge pursuant to the provisions of section 170.6." (Nail, supra, 13 Cal.App.3d at p. 686.) While acknowledging that it is normally the responsibility of the plaintiff to make sure the matter is brought to trial on time, the court indicated this was not a normal situation. The court explained: "[A]ll pretrial proceedings were completed, and the trial was scheduled to commence long before the expiration of the five-year period. Also, [the assigned judge] seemingly acknowledged the court's responsibility under section 170.6 to procure the assignment of an outside judge so that the case could progress to trial 'as promptly as possible.' Consequently, plaintiff's counsel was entitled to assume that official duty would be performed, and although his failure to make any inquiry until almost 11 months later is not commendable, it is at least excusable. When all of the circumstances are weighed and considered, counsel's neglect was not of the magnitude to require a forfeiture of his client's rights." (Id. at pp. 687-688.)

In Hartman v. Santamarina (1982) 30 Cal.3d 762 (Hartman), the complaint was filed in February 1974 and the case was assigned for trial in February 1978. The defendant filed a peremptory challenge to the assigned judge, and the plaintiff filed a challenge to his replacement, thereby leaving no other judge available. Trial was continued until January 15, 1979, 23 days before the end of the five-year period. On January 15, the plaintiff's counsel was engaged in another trial but had a day off. The court and the parties agreed to pick a jury on that day and then continue the matter to a convenient time. The jury was selected and sworn and the plaintiff moved for a continuance, which was granted. The court then discharged the jury. In July 1979, the defendant moved to dismiss under the five-year statute, and the motion was granted. (Id. at pp. 764-765.)

After first determining the case had been brought to trial within the five-year period by virtue of the artifice of picking a jury and then discharging it (Hartman, supra, 30 Cal.3d at p. 767), the court relied on Nail to conclude the 11-month delay occasioned by the peremptory challenge, during which the trial was held in abeyance, must be disregarded in computing the time during which the action was pending. (Hartman, at pp. 767-769.)

Although the foregoing cases involved peremptory challenges to the trial judge under section 170.6, the same rule should apply here. Section 170.3 permits a party to file a statement of disqualification of a judge who fails to disqualify himself or herself when the grounds for such disqualification are present. Section 170.4, subdivision (d), reads: "Except as provided in this section, a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined." Orders of such judge are void. (Rossco Holdings, Inc. v. Bank of America (2007) 149 Cal.App.4th 1353, 1362.)

Upon the filing of a motion to disqualify the presiding judge for bias, nothing more could be done on the case until that motion was resolved. In effect, the matter was stayed. Hence, the period during which such disqualification motions were pending must be excluded from the five-year calculation.

Plaintiff also contends the period following his peremptory challenge of Judge Lasarow on September 8, 2008, until a new judge was assigned to Department 9 must also be excluded. However, plaintiff did not raise this issue below, and we have no way of determining from the record whether in fact the reassignment to Department 9 was tantamount to a stay of proceedings.

We granted plaintiff's motion for judicial notice of a trial court memorandum indicating that, on September 15, 2008, Judge Proud was assigned to hear family law and juvenile dependency matters in Department 5 and judges from the Administrative Office of the Courts would be assigned to handle matters in Department 9. We also took judicial notice of a March 26, 2009, press release from the Governor's Office indicating that Nelson Brooks had been appointed as a Superior Court Judge in El Dorado County. However, we fail to see how these documents prove there was no judge available in Department 9 after September 8, 2008, to try this case.

Because we reject this argument, we also reject plaintiff's claim that the trial court should have permitted him an additional six months after a new judge was assigned to Department 9 within which to bring the action to trial. Section 583.350 provides that if the last period of tolling ends less than six months before the end of the five year period, the court shall allow six months from the end of the tolling period within which to bring the action. Because there was no tolling as plaintiff claims, section 583.350 does not apply.

VII

Other Periods

Plaintiff contends other periods should have been excluded from the five-year calculation due to impossibility, impracticability or futility. However, the periods plaintiff now seeks to have excluded were not raised in his opposition to the Weisses' motion to dismiss. Therefore, as explained earlier, he has forfeited such claims for purposes of this appeal.

VIII

The Weisses' Contentions

For the most part, the Weisses do not dispute that, during the various periods identified above, the jurisdiction of the trial court was suspended or the matter was stayed. Instead, the Weisses rely on general arguments about how plaintiff fails to identify which of the arguments he raises now were also raised below and how, therefore, his arguments on appeal are forfeited. We have previously addressed these arguments.

The Weisses also contend plaintiff is not entitled to relief because he failed to monitor the five-year period and failed to take steps to expedite trial of the case as the deadline approached. However, these matters relate to plaintiff's diligence in complying with the five-year statute, which are relevant only to a claim that bringing the case to trial was impossible, impracticable or futile. We have not found any such periods should have been excluded in this instance. As for periods where the case was stayed or the trial court was without jurisdiction to proceed, a bright-line non-discretionary rule applies and exclusion is mandatory regardless of the plaintiff's diligence. (Bruns, supra, 51 Cal.4th at p. 726; Spanair S.A. v. McDonnell Douglas Corp., supra, 172 Cal.App.4th at p. 358.)

The Weisses also contend the judgment below must be affirmed because plaintiff failed to provide this court with any transcript of the proceedings on their motion to dismiss. Again, however, this would have relevance if we were deciding this matter on the basis of the impossibility exception of section 583.340. But we are not. Thus, any evidence that might have been presented in that hearing is irrelevant.

Finally, the Weisses have moved this court for an award of sanctions against plaintiff for having raised frivolous arguments and for violation of appellate rules. We deny the motion. We do not find plaintiff's appeal to have been frivolous and do not find any violation of this court's rules. While plaintiff could have done a better job of adhering to the arguments raised below and identifying where in the record supporting information could be found, we do not find any of these failings sanctionable.

IX

Conclusion

In its ruling below, the trial court started with a total of 2,823 days between August 10, 2001, when this case was filed, and July 9, 2009, when the court issued its tentative ruling. Neither party challenges use of the latter ending date, so we accept it for purposes of this appeal.

After excluding two periods of 38 days and 779 days respectively, the court concluded the case had been pending for 2,044 days, or 5.6 years. However, we conclude the court should also have excluded one period of 338 days, one of 123 days and another of 48 days during which either the court lost jurisdiction or the matter was stayed.

After excluding these additional periods, the case will have been pending for only 1,535 days, or approximately 4.2 years.

Thus, the trial court erred in granting the Weisses' motion to dismiss under the mandatory five-year statute.

Disposition

The judgment of dismissal is reversed and the matter remanded to the trial court with directions to vacate its order granting the Weisses' motion to dismiss under the mandatory five-year statute and to enter a new order denying the motion. Plaintiff is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: ROBIE , J. DUARTE , J.

20111103

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