Misuraca v. Lyons CA1/2

Filed 3/5/13 Misuraca v. Lyons CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

MALCOLM A. MISURACA, Plaintiff and Appellant, v. A133378, A135026 DAVID LYONS et al. (Marin County Super. Ct. Defendants and Respondents. No. CIV 063033)

Malcolm A. Misuraca, proceeding in propria persona here and below, appeals from orders of the trial court dismissing his suit against defendants David and Phyllis Lyons (the Lyons), because it had not come to trial within five years from the time it was filed, and awarding attorney‟s fees to the Lyons. We find no merit in Misuraca‟s arguments that the trial court should have estopped the Lyons from seeking dismissal and that the court abused its discretion in ordering the dismissal. Accordingly, we affirm the dismissal of Misuraca‟s suit against the Lyons. Because Misuraca‟s request for reversal of the award of attorney‟s fees is dependent on reversal of the dismissal, we also affirm the award of attorney‟s fees. BACKGROUND In July 2006, Misuraca filed suit to recover $57,451.61 in allegedly unpaid attorney‟s fees and costs from the Lyons and from Nacio Systems, Inc. (Nacio), which had allegedly guaranteed payment on behalf of Lyons. Lyons cross-complained against Nacio for indemnity. Nacio filed a cross-complaint against the Lyons for indemnity,

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contribution and for damages for malfeasance in office, fraud, and wrongful conversion of corporate assets. Nacio filed for bankruptcy and, in February 2008, filed a notice of an automatic stay in the superior court. The notice of stay stated that it applies to the parties “Nacio Systems, Inc., a Nevada corporation, David Lyons, [and] Phyllis Lyons.” In a December 19, 2008 case management statement, Nacio stated, in regard to when it would not be available for trial: “Case is subject to Bankruptcy Court stay for Nacio Systems (Nevada) and by court and counsel‟s agreement is stayed as to all parties pending bankruptcy resolution due to central position Nacio Nevada plays in the proceedings.” Nacio stated this again in its March 24, 2009 case management statement, but moved it to the “Other Issues” section as an additional matter to be considered or determined at the case management conference. In a March 3, 2010 case management statement, the Lyons stated in their description of the case: “Parties in this action continue to be subject to the Bankruptcy automatic stay.” In a February 16, 2011 case management statement, the Lyons stated in their description of the case: “Misuraca is stayed from proceeding against Nacio in the main action. Likewise, the Lyons are stayed from proceeding against Nacio in its cross- complaint for indemnification. However, Nacio‟s cross-complaint against the Lyons . . . for contribution, malfeasance, conversion of corp. assets, etc., is not stayed. The Bankruptcy trustee has not indicated how it intends to proceed. However, Misuraca & Lyons cannot prosecute their complaint and cross-complaint with Nacio as a party.” In the section concerning trial date, they stated: “Misuraca‟s main action and the Lyons cross-complaint cannot be prosecuted as long as Nacio‟s bankruptcy is pending & remains a party.”