Robert Messano vs. William Kayl

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 11/03/2025 Hearing on Motion to Dismiss for Failure to Bring to Trial in Department 53

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Defendant William Kayl (“Defendant” or “Kayl”) moves to dismiss Plaintiff Robert Messano’s (“Plaintiff” or “Messano”) complaint for failure to bring action to trial within five years, pursuant to Code of Civil Procedure sections 583.310 and 583.360. Plaintiff opposes. The Court rules upon the motion as follows.

Factual Background

On August 6, 2019, Plaintiff filed a complaint against Defendant, alleging causes of action for fraud – misrepresentation, fraud – failure to disclose, and fraud – concealment arising out of the sale of a property with solar panels. Trial was initially set on August 22, 2022 and then reset to February 14, 2023, at the request of Defendant. (See 7/6/22 Order.)

In February 2023, the Parties agreed to vacate the trial date. (2/3/2023 Stipulation; 2/9/2023 Ex Parte Application.) In light of the Parties; agreement, the Court vacated the trial date and granted the request to be referred to the Trial Setting Program. (2/14/23 Order.)

On October 11, 2024, Plaintiff filed an Ex Parte Application to Continue Trial Per Stipulation, requesting that the current trial date be vacated. The Stipulation, signed by Counsel for Plaintiff and Defendant on September 3, 2024, contained the following provisions:

The Parties hereby stipulate and request an Order ordering the same; 1. To vacate the current MSC and Trial dates.

2. To set a Case Management Conference and Trial Re-Setting at least 90 days out to allow the following amendments and allow an opportunity for the parties to get the case at issue and continue discovery.

3. Defendant WILLIAM KAYL shall amend his Cross-Complaint to

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identify as a Doe and add as a necessary and indispensable party, Judson Enterprises Inc dba K-Designers (A copy of which is attached hereto as Exhibit A and will be filed within 10 days of the approval of this Stipulation and Request for Order).

4. Plaintiff shall, within 10 days of the Amended Cross-Complaint being filed, file its cross-complaint against Judson Enterprises Inc dba K- Designers.

5. The Parties agree to toll the five (5) year statute to bring this matter to trial under CCP § 583.310.

6. All discovery including expert discovery, shall remain open and run in accordance with the new trial date as though the new trial date was the first trial date set in the matter.

(Stipulation, Exh. A to 10/11/2021 Ex Parte Application (emphasis added).)

Trial is currently set for November 10, 2025.

Discussion

Plaintiff argues that the five years have passed without the case being brought to trial and thus, the matter must be dismissed. Plaintiff acknowledges the stipulation signed on September 3, 2024, but asserts that the five-year statute was tolled “solely for the purpose of allowing Defendant to amend the cross-complaint to add Judson Enterprises Inc. dba K designers as a necessary party.” (Mem. of Points & Authorities at 3:26-4:1.) Plaintiff contends that once the cross-complaint was filed, the tolling ends and the fiveyear clock resumes.

Defendant contends that the five-year statute has not expired because the stipulation was not limited to the filing of the cross-complaint, but was also to allow for the completion of discovery and resetting of trial dates. Defendant also contends that the five-year period was extended pursuant to Judicial Council Emergency Rule 10(a).

An action must be brought to trial within five years after it is commenced against the defendant. (Code Civ. Proc. § 583.310; Harman v. Santamaria (1982) 30 Cal.3d 762, 765; see Code Civ. Proc. § 411.10 [a civil action is commenced by filing a complaint with the court].) “It is established that, as to a party named in the original complaint, the action commences . . . on the date of the filing of the complaint.” (Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 38.)

The five-year statute begins to run when the action is “commenced against the

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defendant” and continues to run until the action is brought to trial. (Code Civ. Proc. § 583.310.) If the action is not brought to trial within five years, dismissal is mandatory upon the filing of a motion by any party, or upon the court’s own motion. (Code Civ. Proc. § 583.360.) The five-year statute establishes a “bright line” beyond which a plaintiff’s delay in prosecution of a civil action cannot be tolerated. (See General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91.)

Pursuant to Judicial Council’s Emergency Rule 10, the deadline to bring the matter to trial was extended by six months. Further, as previously noted by the Court in its May 6, 2025 Minute Order, Sacramento Superior Court also suspended due to COVID-19 all civil trials from 3/17/2020 through 1/4/2021, an additional 109 days beyond the sixmonth period encompassed in Emergency Rule 10.

The deadline to bring the instant action to trial, taking into account both the extensions granted by Emergency Rule 10 and the additional 109 days that the Sacramento Superior Court suspended all civil trials, was May 26, 2025, unless a statutory exception applies.

Pursuant to Code of Civil Procedure section 583.330(a), “[t]he parties may extend the time within which an action must be brought to trial . . . [b]y written stipulation.”

In this case, the Parties agreed “to toll the five (5) year statute to bring this matter to trial under CCP § 583.310.” The Parties now disagree regarding whether the agreed upon tolling ended at some point in connection with the other provisions of the stipulation. Accordingly, to determine whether the stipulation waives the right to dismissal, the Court must examine the terms of that stipulation.

As the Court in Miles v. Speidel (1989) 211 Cal.App.3d 879, 883-884 instructed:

In construing [a] stipulation [extending the five-year period] the ordinary rules for interpretation of contracts apply....” (Chapin v. Superior Court (1965) 234 Cal.App.2d 571, 575, 44 Cal.Rptr. 496.) “In the interpretation of contracts, the paramount consideration is the intention of the contracting parties as it existed at the time of contracting. [Citations.] The court must examine an instrument in the light of the circumstances surrounding its execution so as to ascertain what the parties meant by the words they used. [Citation.] In determining the intention of the parties in relation to the execution of a contract, ‘the court may look to the circumstances surrounding the making of the agreement, including the object, nature, and subject matter of the writing, and thereby “place itself”

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for this purpose in the same situation in which the parties found themselves at the time of contracting. [Citations.]’ ” (Cedars–Sinai Medical Center v. State Bd. of Equalization (1984) 162 Cal.App.3d 1182, 1187, 208 Cal.Rptr. 837.) “However, the objective intent as evidenced by the words of the contract, not the parties' subjective intent, governs our interpretation.” (Market Ins. Corp. v. Integrity Ins. Co. (1987) 188 Cal.App.3d 1095, 1098, 233 Cal.Rptr. 751.)

(emphasis added.) “[T]he policy favoring trial on the merits must be considered by the court in resolving any ambiguity in a written stipulation extending the time to bring an action to trial pursuant to Code of Civil Procedure section 583.310.” (Dowling v. Farmers Ins. Exhange (2012) 208 Cal.App.4th 685, 694.) Further, the California Supreme Court has affirmed the denial of a motion to dismiss where, pursuant to a stipulation of the parties, “time is extended indefinitely.” (General Insurance Co. v. Superior Court (1975) 15 Cal.3d 449, 455-456.)

In this case, the written stipulation between the parties expressly tolled the five-year statute to bring this matter to trial pursuant to Code of Civil Procedure section 583.310. The tolling provision was a free-standing provision, not expressly attached or attached within the numbering relating to other terms of the stipulation.

While Defendant asserts that the tolling provision should be tied to the filing of the amended cross-complaint, nothing in the plain language of the stipulation connects the tolling to the filing of the amended cross-complaint. Nor can the primary object of the stipulation be fairly interpreted as the filing of the amended cross complaint. Rather, the stipulation provides that the Parties agree to re-set the trial date at least 90 days out in order to “get the case at issue and continue discovery.” Further, the stipulation mentions not only Defendant’s amended cross-complaint, but also a cross-complaint by Plaintiff against the added party. In sum, nothing in the plain language of the Parties’ stipulation ties the tolling of the five-year statutory period to any other provision of the stipulation, including the filing of the cross-complaint.[1]

Further, to the extent Defendant asserts that “Plaintiff’s interpretation would render the five-year rule meaningless”, it is the express language of the Parties’ stipulation that leads to the result in this case. In drafting and executing the stipulation, the Parties did not stipulate to a date certain for trial outside of the five-year period. Likewise, the Parties did not expressly state a discrete period of “tolling” or an event upon which “tolling” would be completed. The Parties could have done so, but apparently chose not to. Defendant cannot now complain about the terms previously agreed upon—or attempt to read in narrowing language—simply because the plain language of the terms

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no longer serves his purpose.

Moreover, contrary to Defendant’s position, the Court’s finding in this case is not based on “filing boilerplate stipulation referencing discovery and future trial dates.” Rather, in this case, the Parties expressly agreed to toll the five-year statute to bring this matter to trial pursuant to section 583.310, referencing both the intent to exclude time and acknowledgment of the specific statute at issue in this motion.

Accordingly, for the reasons set forth above, Defendant’s motion is denied.

Finally, on October 23, 2025, two days after Defendant filed his Opposition, Cross- Defendant Judson Enterprises, LLC filed a Notice of Joinder to Defendant’s Motion. Pursuant to Local Rule 2.09

If a party desires to receive the same relief as another party and files papers 'joining' another party's motion, the court will not consider the papers to be a separate motion and will not grant relief to the party joining the motion unless that party has complied with all procedural requirements for the filing of motions, including payment of filing fees, proper notice, format of motion and method of service.

(emphasis added).

In this case, Cross-Defendant filed its Notice of Joinder and supporting papers approximately seven (7) court days prior to the hearing on the motion and after the deadline for Plaintiff to file a response. (Code Civ. Proc., § 1005.) As such, the purported Joinder must be DROPPED for defective service. Moreover, the Court notes that the supporting papers proffer different arguments than those raised by Defendant, as Cross-Defendant asserts that no stipulation applies. Plaintiff has had no timely notice or reasonable opportunity to respond to these arguments.

Disposition

For the foregoing reasons, Defendant’s motion to dismiss is DENIED. Cross- Defendant’s Notice of Joinder is DROPPED.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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[1] The Court finds no ambiguity in the plain language of the stipulation, but even if it did,

such ambiguity would be resolved in favor of Defendant.