Bittenson v. Bittenson CA2/6

Filed 7/19/23 Bittenson v. Bittenson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

TERRI BITTENSON, 2d Civ. No. B320303 (Super. Ct. No. 56-2015- Plaintiff and Appellant, 00475085-CU-PO-VTA) (Ventura County) v.

MARK BITTENSON, et al.,

Defendants and Respondents.

Terri Bittenson purports to appeal from the trial court’s nonappealable, unsigned minute order dismissing her action for failure to bring it to trial within five years after it was filed. (Code Civ. Proc., § 583.310 [“An action shall be brought to trial within five years after the action is commenced against the defendant”].)1 After appellant had filed her notice of appeal, the trial court dismissed the action. We construe the appeal to be from the judgment of dismissal and affirm.

All statutory references are to the Code of Civil 1

Procedure.

Procedural Background On December 1, 2015, appellant filed a complaint against respondents Mark Bittenson, Duane Fowler, and Leslie Bittenson. In February 2020, more than four years later, appellant’s present counsel was substituted into the case as her counsel of record. On August 10, 2020, a trial setting conference was conducted. The minute order for the conference states: “Court and counsel discuss 5 year statute for case and time tolled pursuant to the [Covid] pandemic. The Court admonishes counsel to calculate the date [i.e., the date when the five-year statute will expire]. Mr. Gower [counsel for respondent Leslie Bittenson] objects to extension except by court mandate. Ms. Opri [counsel for respondent Mark Bittenson] joins. The Court again admonishes counsel to research the matter and calculate the date.” The court scheduled a mandatory settlement conference for January 19, 2021, and a pretrial conference for February 8, 2021. Appellant did not object. On February 8, 2021, the scheduled jury trial date of February 22, 2021, was vacated. The court continued the pretrial conference to November 15, 2021. The minute order for February 8, 2021, states, “Jury Trial will not commence until after Thanksgiving.” Appellant did not object. By written stipulation signed in November 2021, the parties agreed to continue the pretrial conference to January 24, 2022. The stipulation said nothing about extending the time within which an action must be brought to trial pursuant to section 583.310. On February 18, 2022, the trial court ordered the parties to submit briefs on whether the action should be dismissed because