HOUSE VS ABTTC, LLC

On December 9, 2020, the Plaintiff submitted an ex parte application “for relief of stay and to return the matter back on calendar.” (Minute Order dated December 9, 2020.) The parties stipulated to return the case to active status. (Id.) Accordingly, the Court lifted the arbitration stay and bankruptcy stay on December 9, 2020.

Plaintiff argues that because there was no record that arbitration was ever conducted, Plaintiff’s “survival claims remain subject to an unresolved court order requiring arbitration” and are still stayed. (Opp., p. 4.) However, Plaintiff cites to no legal authority in support of this contention, and fails to acknowledge that the Court lifted the stays upon Plaintiff’s own ex parte application for relief from stay. Further, Plaintiff dismissed her second and third causes of action, as well as “all causes of action as to Decedent Kenneth House,” with prejudice on June 18, 2020. (Requests for Dismissal, dated June 18 and 23, 2020.)

Lastly, Plaintiff’s Opposition concedes that “[a]fter the case returned to active status, litigation continued,” as Defendants filed an Answer, Plaintiff filed discovery motions, and the Court continued the Trial Setting Conference. (Opp., pp. 4-5.) Accordingly, Plaintiff’s argument that the arbitration stay remains in effect is not persuasive.

The evidence shows that this action was stayed from November 20, 2019 through December 9, 2020, for a total of 1 year and 19 days (385 days) that are excluded from the five-year period. Excluding the arbitration and bankruptcy stays, this matter will be pending for 6 years, 5 months, 3 weeks, and 5 days (2,366 days) on August 14, 2026, which is almost an entire year past the 5 years and 6 months that Plaintiff had to bring this action to trial.

As for the October 19, 2022 Stay—the plaintiff bears the burden to establish the five-year period should be tolled based on impossibility, impracticability, or futility. (Gaines v. Fidelity Nat’l Title Ins. (2016) 62 Cal.4th 1081, 1100.) “Section 583.340 is construed liberally, consistent with the policy favoring trial on the merits. Because the purpose of the dismissal statute is to prevent avoidable delay, . . . [section 583.340, subdivision (c)] makes allowance for circumstances beyond the plaintiff’s control, in which moving the case to trial is impracticable for all practical purposes.” (Tanguilig v.

Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 323 [citations omitted].) “[S]o long as the court may conclude that there was a period of impossibility, impracticability or futility, over which plaintiff had no control, the court is required to toll that period even if there is ample time after said period of impracticability within which to go to trial.” (Id. at p. 324.) “To avoid dismissal under the section 583.340, subdivision (c) exception, a plaintiff must prove (1) a circumstance establishing impossibility, impracticability, or futility, (2) a causal connection between the circumstance and the failure to move the case to trial within the five-year period, and (3) that she was reasonably diligent in prosecuting her case at all stages in the proceedings.” (Tanguilig, supra, 22 Cal.App.5th at p. 323; Tamburina v.

Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 326, 328.)

On October 19, 2022, the Court held hearings on the Trial Setting Conference, OSC re: Failure to Prosecute, and OSC as to why sanctions or dismissal should not be imposed for Plaintiff’s failure to appear at the earlier Trial Setting Conference. At the Trial Setting Conference, the Court was informed that Plaintiff was seeking new counsel. (Minute Order re: Trial Setting Conference, dated October 19, 2022.) The parties met and conferred with the Court regarding fast-track directives, and the Minute Order memorializing the Trial Setting Conference states: “Parties stipulate to the following, Case stayed without prejudice.

Court informs the parties the stay does not affect the five-year rule, and that it is Plaintiff's obligation to resurrect this matter no later than one year prior to the fifth year. Plaintiff may file moving papers to resurrect this matter.” (Id.) The Court also read and considered the declaration of Plaintiff’s prior counsel, William M. Berman, filed October 5, 2022, before discharging both OSCs.

Plaintiff argues that the Court could not prospectively waive her statutory tolling rights, and that the nature of the October 19, 2022 stay was a “complete stay” because the case was “entirely frozen” until Plaintiff filed “moving papers to resurrect this matter.” (Opp., pp. 9-10.) However, even if the Court’s express language and the parties’ stipulation were not binding, Plaintiff fails to establish that the October 19, 2022 stay tolled the five-year period based on “impossibility, impracticability, or futility.”

Here, Plaintiff contends that it was “impossible, impracticable, or futile” to retain new counsel because she was a pro per litigant who resided in Maryland. Plaintiff asserts that her prior counsel’s declaration confirmed that she had been actively seeking new counsel, as Berman attested that other attorneys had been contacting him about Plaintiff’s case. (Opp., p. 11.) However, Berman’s declaration was filed on October 5, 2022. Accordingly, his declaration does not support that Plaintiff was reasonably diligent in seeking new counsel after the Court imposed the third stay on October 19, 2022.

Furthermore, Plaintiff presents no explanation as to why it was “impossible, impracticable, or futile” to retain counsel until February 20, 2026, which is 3 years and 4 months after the Court stayed the action pursuant to the parties’ stipulation to allow Plaintiff to retain new counsel. To the contrary, the record reflects that Plaintiff was able to retain new counsel less than three weeks after Defendants filed the instant motion to dismiss on February 3, 2026. Accordingly, Plaintiff fails to establish any circumstances establishing impossibility, impracticability, or futility.

Plaintiff further fails to establish that she was reasonably diligent in prosecuting her case at all stages in the proceedings, specifically during the October 19, 2022 stay.

Plaintiff then argues that Defendants contributed to the delay in bringing this case to trial by filing for bankruptcy, failing to arbitrate, and failing to file their Answer until July 28, 2021. (Opp., p. 13.) However, Plaintiff fails to acknowledge that Defendants had filed a demurrer and motion to strike to the operative complaint, which was not heard until June 7, 2021. (Minute Order, dated June 7, 2021.) Further, “every 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.” (Gaines and Bruns v.

E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731 [internal citations and punctuation omitted].) Although “part of the five-year period must necessarily be consumed in service of process, disposition of demurrers, amendment of the pleadings, if necessary, usual and reasonable time consumed in waiting for a place on the court’s calendar or in securing the attendance of a jury and suchlike usual and necessary proceedings; ... the section does not contemplate that time consumed in such ordinary proceedings are to be excluded from a computation of the five-year period.” (Id. at 731-732.)

Plaintiff, therefore, fails to establish that the October 19, 2022 stay tolled the five-year statute under § 583.340.

Plaintiff then contends that the parties extended the five-year statute at the Trial Setting Conference on October 19, 2022. The parties may extend the five-year period by written stipulation, or by oral agreement made in open court that is entered in the minutes or transcript. (C.C.P. § 583.330.) A stipulation to extend trial to a specific date beyond the five-year period reflects a mutual intent to defer to the proceedings even where the stipulation does not discuss the five-year deadline. (Munoz v. City of Tracy (2015) 238 Cal.App.4th 354, 361 [finding stipulation sufficient stating “ ‘All parties hereby stipulate...that the Trial Date, currently set for October 28, 2013, be vacated and continued to June 16, 2014.’ ”].)

Here, there is no evidence that Defendants stipulated to extend the five-year statute, as their stipulation to stay the case was subject to the Court’s disclaimer that the parties’ stipulation to stay fast-track directives would not impact the five-year deadline. As such, Plaintiff fails to establish that the parties stipulated to extend the § 583.310 five-year time period under § 583.330.