Yu v. Northland Insurance Co. CA4/3

Filed 12/1/15 Yu v. Northland Insurance Co. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BANN-SHIANG LIZA YU,

Plaintiff and Appellant, G050776

v. (Super. Ct. No. 30-2009-00255065)

NORTHLAND INSURANCE OPINION COMPANY,

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Reversed. Mohammed K. Ghods, William A. Stahr, Jeremy A. Rhyne; LEX OPUS and Eric M. Schiffer for Plaintiff and Appellant. The Aguilera Law Group, A. Eric Aguilera, Raymond E. Brown and Richard A. Semon for Defendant and Respondent. * * *

Plaintiff Bann-Shiang Liza Yu appeals from a judgment of dismissal under Code of Civil Procedure sections 583.310 and 583.360 (all further statutory references are to this code) for failure to bring her claims against codefendant Northland Insurance Company (Northland) to trial within five years from the date of its filing. She asserts there was an agreement among the multiple codefendants that commencement of trial as to one codefendant constituted commencement of trial as to all codefendants. Thus, she contends, she met the statutory requirements when she tried the first case against one of the codefendants within the five-year period. Plaintiff also argues Northland waived or is estopped from raising the issue of timeliness based on its own delays, and that trying the case as to all the codefendants within five years was “impossible, impracticable, or futile.” (§ 583.340.) We conclude the parties did agree commencement of trial against one of the codefendants was commencement of trial against all codefendants, and the case was timely tried against at least one codefendant within the five-year period. Therefore, we reverse the judgment. FACTS AND PROCEDURAL HISTORY This case arose out of plaintiff’s development of a hotel. Plaintiff alleged the hotel was poorly constructed and filed a construction defect action against the general contractor and various subcontractors. As part of settlements with some of the parties to that underlying action, plaintiff became the assignee of several insurance policies. She also was a direct beneficiary of other policies. On March 25, 2009, plaintiff filed the current action against 18 insurance companies for declaratory relief, breach of contract and the implied covenant of good faith and fair dealing, and subrogation and contribution. Thus, barring any exceptions, the five-year date to try the case was March 25, 2014. The trial court determined this action was “complex.” (Cal. Rules of Court, rule 3.400(a), (c).) Pursuant to the original case management order dated April 12, 2011,