Fidelity National Home Warranty Company Cases

Filed 3/20/20
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FIDELITY NATIONAL HOME D074161
WARRANTY COMPANY CASES

(JCCP No. 4806, Sup. Ct. Nos.
37-2008-00087962-CU-BT-CTL,
37-2008-00088433-CU-BTL-CTL,
39-2012-00286479-CU-BT-STK)

APPEALS from judgments of the Superior Court of San Diego County,

Eddie C. Sturgeon, Judge. Affirmed in part; reversed in part.

Bottini & Bottini, Francis A. Bottini, Jr., Yury A. Kolesnikov; Cotchett, Pitre &

McCarthy, Niall P. McCarthy and Anne Marie Murphy for Plaintiff and Appellants.

Hahn Loeser & Parks, Michael J. Gleason and Steven A. Goldfarb for Defendant

and Respondent.

I.

INTRODUCTION

Plaintiffs Dan Kaplan, James Baker, Janice Fistolera, Fernando Palacios, and

Hamid Aliabadi appeal from two judgments dismissing two coordinated actions against

defendant Fidelity National Home Warranty Company (Fidelity): Fistolera v. Fidelity

National Home Warranty Company (Super. Ct. San Joaquin County, No. 39-2012-
00286479-CU-BT-STK) (Fistolera Action) and Kaplan v. Fidelity National Home

Warranty Company (Super. Ct. San Diego County, No. 37-2008-00087962-CU-BT-CTL)

(Kaplan Action). 1 The trial court dismissed the actions after determining that the

plaintiffs failed to timely prosecute each case. With respect to the Fistolera Action, a

putative class action, the trial court concluded that the Fistolera Plaintiffs failed to bring

the action to trial within the five-year mandatory period specified in Code of Civil

Procedure section 583.310.2 As to the Kaplan Action, a certified class action, the trial

court concluded that the Kaplan Plaintiffs failed to bring the action to trial within three

years of the issuance of the remittitur in a prior appeal in that action (Kaplan v. Fidelity

National Home Warranty (December 17, 2013, D062531, D062747) [nonpub. opn.]

(Kaplan I)), as required by section 583.320.3 On appeal, plaintiffs claim that the trial

court erred in dismissing each action.

1 The Kaplan Action included the consolidated action, Baker v. Fidelity National
Home Warranty Company (Super. Ct. San Diego County, No. 37-2008-00088433-CU-
BT-CTL).
Although plaintiffs filed a single notice of appeal from both judgments, we
construe that notice of appeal as effectuating an appeal in the Fistolera Action and a
separate appeal in the Kaplan Action. The appeals then were de facto consolidated in this
court through the assignment of a single appellate case number. We use the terms
"Fistolera Plaintiffs" and " Kaplan Plaintiffs" to refer to the plaintiffs in the Fistolera
Action and the Kaplan Action, respectively.

2 Unless otherwise specified, all subsequent statutory references are to the Code of
Civil Procedure.

3 As discussed in part III.B.1.c, post, the trial court determined that the three-year
period had been tolled for a total of 45 days. Thus, to be precise, the trial court
concluded that that the Kaplan Plaintiffs had failed to bring the action to trial within three
years and 45 days of the issuance of the remittitur in the prior appeal.
2
 Prior to addressing the merits of the plaintiffs' claims, we consider in part III.A,

post, whether the plaintiffs' appeals are timely. For reasons that we explain in that part,

we conclude, as a matter of first impression, that the trial court's order dismissing the

actions did not constitute a judgment pursuant to section 581d, and that the plaintiffs'

appeals from the ensuing judgments were timely.

On the merits of the plaintiffs' claims, we conclude that, in calculating the five-

year and three-year mandatory dismissal periods, the trial court erred in failing to exclude

135 days immediately following the assignment of a coordination motion judge to rule on

a petition to coordinate the Fistolera Action and the Kaplan Action. We reach this

conclusion because it was "impracticable" to bring either action to trial (§ 583.340, subd.

(c)) during this period since California Rules of Court, rule 3.515(i) provides that "no

trial may be commenced" during such a period. We further conclude that this error

requires reversal of the dismissal of the Fistolera Action because, after excluding these

135 days, the five-year period had not expired as of the time the trial court dismissed that

action, and the matter was set for trial within the five-year period.

However, we conclude that this error does not require reversal of the trial court's

dismissal of the Kaplan Action. We reach this conclusion because, even after excluding

135 days related to the coordination proceedings, the three-year period that the Kaplan

Plaintiffs had to bring that action to trial had expired as of the time the trial court

dismissed that case. Further, none of the Kaplan Plaintiffs' arguments for additional

tolling of the three-year period has merit.

3
 Accordingly, we reverse the judgment in the Fistolera Action and affirm the

judgment in the Kaplan Action.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Kaplan Action prior to Kaplan I4

In 2008, Kaplan and Baker, as putative class representatives (Kaplan Plaintiffs),5

each filed a lawsuit against Fidelity. In their complaints, the Kaplan Plaintiffs alleged

that they had entered into home warranty agreements with Fidelity. The Kaplan Plaintiffs

further alleged that they had made claims under the agreements and that Fidelity failed to

properly address their claims. According to the Kaplan Plaintiffs, Fidelity violated its

contractual obligations and engaged in unfair and unlawful business practices. The

Kaplan Plaintiffs later consolidated their complaints.

In November 2010, the trial court certified a class of "[a]ll persons and entities

residing in the United States who, during the period from July 18, 2002 through the

present . . . made a claim under a home-warranty plan obtained from defendant

Fidelity. . . ."

4 Our summary of the proceedings prior to Kaplan I is taken from the factual and
procedural background portion of that opinion. (Kaplan I, supra, D062531, D062747.)

5 For ease of reference, we refer to Baker and Kaplan as the Kaplan Plaintiffs, even
though, technically, prior to consolidation, Baker and Kaplan were putative class
representatives of the classes in each individual action.

4
 In December 2011, Fidelity moved to strike and dismiss a fourth amended

complaint that had been filed in the Kaplan Action. The trial court granted Fidelity's

motion and dismissed the entire action without prejudice. The Kaplan Plaintiffs

appealed.

B. The Fistolera Action prior to Kaplan I

While the Kaplan Action was being appealed, on August 30, 2012, Fistolera,

Palacios, and Jared Whitfield filed the Fistolera Action in San Joaquin County Superior

Court. As in the Kaplan Action, the complaint alleged that Fidelity had engaged in

various types of wrongful conduct in connection with Fidelity's home warranty business.

The complaint in the Fistolera Action indicated that it was brought on behalf of all

persons or entities who had purchased or received a Fidelity home warranty plan from

July 18, 2002 through the present.6 In October 2013, the Fistolera Plaintiffs filed the

operative second amended complaint, adding Aliabadi as a named plaintiff and

withdrawing Whitfield. The operative second amended complaint contains an individual

breach of contract cause of action and six additional causes of action that are brought on

behalf of both the individual named plaintiffs and the class.

6 While the certified class in the Kaplan Action consisted of those persons and
entities who had made a claim under a Fidelity home warranty during the class period
(see pt. II.A, ante), the putative class in the Fistolera Action involved all individuals and
entities who had purchased a Fidelity home warranty during the class period.

5
C. Kaplan I

In December 2013, this court issued our opinion in Kaplan I. As relevant here, we

reversed the dismissal of the action without leave to amend and remanded the matter with

direction to permit the Kaplan Plaintiffs an opportunity to amend their complaint.

(Kaplan I, supra, D062531, D062747.) The remittitur in Kaplan I issued on April 14,

2014.

D. The coordination proceedings

In September 2014, the Kaplan Plaintiffs filed a petition for coordination with the

Judicial Council, seeking to coordinate the Kaplan Action and the Fistolera Action.

The Fistolera Plaintiffs notified the San Joaquin County Superior Court of the

petition for coordination that same month.

On October 19, 2014, the Judicial Council assigned San Diego County Superior

Court Judge Eddie Sturgeon to be the coordination motion judge. 7 On March 3, 2015,

Judge Sturgeon granted the petition for coordination. On April 10, 2015, the Judicial

Council appointed Judge Sturgeon as the coordination trial judge 8 in the proceedings.

7 Under California Rules of Court, rule 3.501(7), " '[c]oordination motion judge'
means an assigned judge designated under . . . section 404 to determine whether
coordination is appropriate."

8 Under California Rules of Court, rule 3.501(9), " '[c]oordination trial judge' means
an assigned judge designated under . . . section 404.3 to hear and determine coordinated
actions."

6
E. Fidelity's motions to dismiss

In August 2017, Fidelity moved to dismiss the Kaplan Action for failure to bring

the case to trial in a timely manner, and in October 2017, Fidelity moved to dismiss the

Fistolera Action on the same ground. In November 2017, plaintiffs filed an omnibus

opposition to Fidelity's motions to dismiss.

F. The trial court sets a trial date in both actions

Three days after Fidelity filed its motion to dismiss the Kaplan Action, the

plaintiffs filed an ex parte application seeking to consolidate the actions and set them for

trial. The trial court denied the consolidation request, but set the matters for trial on

February 16, 2018.

G. The Fistolera Plaintiffs' motion for leave to amend

In September 2017, the Fistolera Plaintiffs moved for leave to amend the second

amended complaint to permit Fistolera, Aliabadi, and Palacios to be dismissed from the

action and to add a new named plaintiff, Richard Eidson. The motion indicated that it

would be set for hearing in January 2018.

H. Plaintiffs' Motions for Class Certification

Plaintiffs filed motions for class certification in both actions in November 2017.

In their motion, the Kaplan Plaintiffs explained that they were seeking to certify

additional claims in that action on behalf of the already certified class. The Fistolera

Plaintiffs sought to certify a class and to have Eidson appointed as a class representative.

Both motions indicated that they would be set for a hearing in April 2018. Plaintiffs filed

an omnibus memorandum in support of their motions.

7
I. The trial court's dismissal of the actions

On December 15, 2017, the trial court granted Fidelity's motions to dismiss both

cases for failure to timely prosecute. The trial court entered a judgment dismissing the

Fistolera Action on March 7, 2018 and entered a judgment dismissing the Kaplan Action

on April 2, 2018.

J. The appeals

On May 1, 2018 plaintiffs filed a single notice of appeal from the judgments in the

Fistolera Action and the Kaplan Action.

III.

DISCUSSION

A. The appeals are timely

We first consider, sua sponte, whether plaintiffs' appeals are timely. (E.g., Drum

v. Superior Court (2006) 139 Cal.App.4th 845, 849 ["because the timeliness of an appeal

poses a jurisdictional issue, we must raise the point sua sponte"].)9

For reasons that we explain below, we conclude that the December 15 dismissal

order did not constitute a judgment in either action. We further conclude that two

additional orders that the trial court issued in February 2018 pertaining to the extent to

9 While the appeals were pending, we requested that the parties submit simultaneous
supplemental briefs addressing whether "the appeals in this matter [should] be dismissed
as untimely . . . ." The parties complied with our request. Together with their
supplemental briefs, the parties lodged several documents that they had filed in the trial
court, that are relevant to the issue. We have augmented the record to include these
documents and have considered them in analyzing the timeliness of the appeals.

8
which notice of the dismissals had to be provided to the putative class in the Fistolera

Action and to the certified class in the Kaplan Action also were not judgments. Finally,

we conclude that, since the trial court entered a judgment on March 7, 2018 in the

Fistolera Action and entered a judgment on April 2, 2018 in the Kaplan Action, plaintiffs'

May 1, 2018 notice of appeal was timely as to both judgments.

1. Factual and procedural background

a. The December 15 order granting Fidelity's motion to dismiss

On December 15, 2017, the trial court issued a minute order granting Fidelity's

motion to dismiss both actions. In its order, the court stated, "The court grants the

dismissals for both actions."

Fidelity served plaintiffs with notice of entry of the December 15 order that same

day.

b. Proceedings pertaining to class notice

On January 17, 2018, Fidelity filed an ex parte application captioned, "Regarding

Final Judgment and Class Notice." (Boldface & some capitalization omitted.) In its

application, Fidelity stated, with respect to the Kaplan Action, that, "because a class has

been certified and notice of the pendency of the action has been provided to class

members, notice of the dismissal—in a form deemed adequate by this Court—must be

given to the certified class in the manner specified by the Court. ([§] 581[, subd.] (k) and

Cal. Rule[s] of Court[,] [rule] 3.770[.])" With respect to the Fistolera Action, Fidelity

stated that "because the Court has not ruled on class certification, the action may be

9
dismissed without notice to the class members, if the Court finds that the dismissal will

not prejudice them. (Cal. Rule[s] of Court[,] [rule] 3.770(c)[.])"

In late January 2018, plaintiffs filed a brief in which they agreed with Fidelity that

it was necessary to provide notice of the dismissal to the class in the Kaplan Action and

that it was not necessary to provide notice of the dismissal to the putative class in the

Fistolera Action.

Fidelity filed a reply brief regarding notice and the trial court's entry of a

judgment. In its reply brief, Fidelity stated in relevant part:

"Fidelity objects to how Plaintiffs' [Proposed] Notice[10] addresses
the December 15, 2017 order of this Court regarding dismissal.
Plaintiffs propose notifying the class that 'On December 15, 2017,
the Court . . . dismissed the lawsuit'—past tense. [Citation.]
However, as Plaintiffs acknowledge, the [Kaplan Action] cannot be
dismissed prior to notice being given to the class. (Citation; . . .
§ 581[, subd.] (k) ['No action may be dismissed which has been
determined to be a class action under the provisions of this code
unless and until notice that the court deems adequate has been given
and the court orders the dismissal'].) Thus, as detailed in Fidelity's
motion, notice will first be provided to the class and then the action
will be dismissed upon the entry of the judgment of dismissal."
(Boldface & underscoring omitted.)

The trial court held a hearing on the issues and, on February 7, issued a minute

order in which it specified the manner by which notice of the dismissal could be given to

the class in the Kaplan Action and determined that no notice of the dismissal had to be

provided to the putative class in the Fistolera Action. The court also stated that it had

10 The proposed notice is not in the record.

10
"reviewed the proposed notices and judgments dismissing each action . . . and approve[d]

them for form and content."11 On February 9, Fidelity served plaintiffs with "Notice of

Entry" (boldface & some capitalization omitted) of the February 7 order.

On February 28, the trial court issued an order on Fidelity's motion "[r]egarding

[f]inal [j]udgment and [c]lass [n]otice." The order states in relevant part:

"Pursuant to . . . [section] 581[, subd.] (k) and California Rule[s] of
Court[,] [rule] 3.770, this Court FINDS that because a class had been
certified in [Kaplan Action] and notice of the pendency of the
[Kaplan Action] had been provided to class members, notice of the
dismissal of [Kaplan Action] must be given to the class in the
manner specified by the court. . . .

"Pursuant to California Rule[s] of Court[,] [rule] 3.770(c), this Court
FINDS that in the [Fistolera Action], the Court has not ruled on class
certification and that the [Fistolera Action] may be dismissed
without notice to the putative class members because the dismissal
will not prejudice the absent putative class members." (Boldface
omitted.)

On March 9, Fidelity served plaintiffs with notice of entry of the February 28

order.

c. The judgments

On March 7, 2018, the court entered a judgment in the Fistolera Action.

On April 2, 2018, the court entered a judgment in the Kaplan Action.

11 The court stated that it had one modification to the proposed class notice to be
provided in the Kaplan Action. The modification is not relevant to the issues on appeal.

11
 d. The appeals

On May 1, 2018, plaintiffs filed a single notice of appeal from the judgments

entered on March 7 and April 2.

2. Governing law

a. Relevant law governing the timeliness of appeals

California Rules of Court, rule 8.104(a) provides in relevant part:

"[A] notice of appeal must be filed on or before the earliest of:

"[¶] . . . [¶]

"(B) 60 days after the party filing the notice of appeal serves or is
served by a party with a document entitled 'Notice of Entry' of
judgment or a filed-endorsed copy of the judgment, accompanied by
proof of service . . . ."

b. A judgment under California law

In Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1

(Dana Point), the Supreme Court outlined the following principles governing what

constitutes a "judgment" under California law:

"A judgment is the final determination of the rights of the parties
(citation) ' " 'when it terminates the litigation between the parties on
the merits of the case and leaves nothing to be done but to enforce
by execution what has been determined.' " ' [Citations.] ' "It is not
the form of the decree but the substance and effect of the
adjudication which is determinative. As a general test, which must
be adapted to the particular circumstances of the individual case, it
may be said that where no issue is left for future consideration
except the fact of compliance or noncompliance with the terms of
the first decree, that decree is final, but where anything further in the
nature of judicial action on the part of the court is essential to a final
determination of the rights of the parties, the decree is
interlocutory." ' " (Id. at p. 5, italics omitted.)

12
 c. Section 581d

Section 581d provides:

"A written dismissal of an action shall be entered in the clerk's
register and is effective for all purposes when so entered.

"All dismissals ordered by the court shall be in the form of a written
order signed by the court and filed in the action and those orders
when so filed shall constitute judgments and be effective for all
purposes, and the clerk shall note those judgments in the register of
actions in the case."

This court lacks jurisdiction in cases in which an appellant has failed to timely

appeal from an order of dismissal entered pursuant to section 581d, where such order

constitutes a judgment. (See, e.g., The Inland Oversight Committee v. City of Ontario

(2015) 240 Cal.App.4th 1140, 1144–1145 (Inland Oversight) [stating that "a written,

signed order dismissing a complaint is treated as an appealable judgment," and

concluding, "[t]his court thus lacks jurisdiction to consider the merits of [the] appeal and

must dismiss the appeal"].)

d. The law governing the dismissal of certified and putative class actions

Section 581, subdivision (k) provides:

"No action may be dismissed which has been determined to be a
class action under the provisions of this code unless and until notice
that the court deems adequate has been given and the court orders
the dismissal."

California Rules of Court, rule 3.770, subdivision (c) pertains to notice of the

dismissal of certified and putative class actions and provides:

"If the court has certified the class, and notice of the pendency of the
action has been provided to class members, notice of the dismissal
must be given to the class in the manner specified by the court. If

13
 the court has not ruled on class certification, or if notice of the
pendency of the action has not been provided to class members in a
case in which such notice was required, notice of the proposed
dismissal may be given in the manner and to those class members
specified by the court, or the action may be dismissed without notice
to the class members if the court finds that the dismissal will not
prejudice them."

California Rules of Court, rule 3.771 pertains to judgments in class actions and

provides:

"(a) Class members to be included in judgment

"The judgment in an action maintained as a class action must include
and describe those whom the court finds to be members of the class.

"(b) Notice of judgment to class

"Notice of the judgment must be given to the class in the manner
specified by the court."

3. Application

It is undisputed that plaintiffs' May 1, 2018 appeals are timely to the extent that

they are properly taken from the March 7 judgment in the Fistolera Action and the

April 2 judgment in the Kaplan Action. (See Cal. Rules of Court, rule 8.104(a)(1)

[providing a minimum of 60 days after entry of an appealable order or judgment to file a

notice of appeal].)

However, as our supplemental briefing order suggested, we must address whether

the December 15 order constituted a judgment in each action under section 581d.12 That

12 After outlining the relevant legal and factual background, our supplemental
briefing order stated in relevant part:

14
is because, if the December 15 order is a judgment pursuant to section 581d, then the

May 1 appeals are untimely. (See Cal. Rules of Court, rule 8.104(a)(1)(B) [providing that

an appeal must be taken "60 days after the party filing the notice of appeal serves or is

served by a party with a document entitled 'Notice of Entry' of judgment or a filed-

endorsed copy of the judgment, accompanied by proof of service"].)13 In addition, as

will be discussed below, we must address whether, as suggested by the parties in their

"The parties are directed to file supplemental briefs, no longer than
ten single-spaced pages, addressing the following question:
"Should the appeals in this matter be dismissed as untimely under
California Rules of Court, rule 8.104?
"In discussing this question, the parties are directed to address
whether the December 15 order constitutes a judgment under Code
of Civil Procedure section 581d.
"[¶] . . . [¶]
"In addressing whether the appeals in this matter should be
dismissed as untimely, the parties are directed to discuss what effect,
if any, Code of Civil Procedure section 581, subdivision (k) and
California Rules of Court, rule 3.770, pertaining to the dismissal of
class actions, and California Rules of Court, rule 3.771, pertaining to
judgments in class actions, have on this question.
"Finally, the parties may address in their briefs any other provision
of law bearing on the determination of the timeliness of the appeals
in this matter."

13 As noted previously, Fidelity served plaintiffs with notice of entry of the
December 15 order on that same day. (See pt. III.A.1.a, ante.)

15
supplemental briefs, either the trial court's February 7 or February 28 order constitutes a

judgment.14

It appears to be undisputed that the December 15 order would constitute a

judgment under section 581d if it had been filed in a case that was neither a class action

nor a putative class action.15 The December 15 minute order states, "The court grants

the dismissals for both actions," and the judge's signature stamp appears on the order.

(See, e.g., Inland Oversight, supra, 240 Cal.App.4th at pp. 1144–1145; Christie v. City of

El Centro (2006) 135 Cal.App.4th 767, 779 ["Under former section 581d, a dismissal

order acts as a final judgment in the action"]; Brehm v. 21st Century Ins. Co. (2008) 166

Cal.App.4th 1225, 1234 [applying section 581d to minute order stamped with a facsimile

of the judge's signature].)

The question becomes whether this same result holds given that the underlying

actions in this matter were a putative class action (Fistolera Action) and a certified class

action (Kaplan Action). The parties have not cited, and our own research has not

revealed, any case law applying section 581d in a case involving either a class action or a

putative class action. Accordingly, we consider below, as a matter of first impression,

whether the trial court entered any orders, prior to the March 7 and April 2 judgments,

14 As explained in III.A.3.c, post, Fidelity contends that the court's February 7 order
was a judgment and that May 1, 2018 was untimely. Plaintiffs contend that the February
28 order was a judgment and the May 1, 2018 appeal was timely.

15 Plaintiffs present no argument to the contrary in their supplemental brief.

16
that constituted a judgment pursuant to section 581d in either the Fistolera Action or the

Kaplan Action such that plaintiffs' May 1, 2018 appeals are untimely.

a. The December 15 order was not a final order of dismissal and is thus
not a judgment under section 581d in either the Fistolera Action or the
Kaplan Action

Section 581, subdivision (k) provides that no class action may be dismissed

"unless and until notice that the court deems adequate has been given and the court orders

the dismissal." (Accord, Cal. Rules of Court, rule 3.770(c) ["If the court has certified the

class, and notice of the pendency of the action has been provided to class members,

notice of the dismissal must be given to the class in the manner specified by the court"].)

With respect to putative class actions, California Rule of Court, rule 3.770(c)

provides that such actions "may be dismissed without notice to the class members if the

court finds that the dismissal will not prejudice them." (Italics added.) This rule of court

is consistent with the principle that "California courts recognize and preserve the rights of

absent class members, even before the issue of certification has been determined."

(Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1109.)

It is undisputed that, prior to the December 15 order, no notice of the dismissal

was given to the class in the Kaplan Action. Thus, pursuant to section 581, subdivision

(k), the December 15 order did not constitute a final dismissal of the Kaplan Action. It is

also undisputed that, prior to the December 15 order, the trial court had made no

determination with respect to whether the putative class members would be prejudiced by

the dismissal in the Fistolera Action. Thus, pursuant to California Rules of Court, rule

17
3.770, subdivision (c), the December 15 order did not constitute a final dismissal of the

Fistolera Action.

Further, an order, such as the December 15 order, that does not constitute a final

order of dismissal also does not constitute a judgment. (See Dana Point, supra, 51

Cal.4th at p. 5 [stating that a judgment consists of a "final determination of the rights of

the parties," where "no issue is left for future consideration except the fact of compliance

or noncompliance with the terms of the first decree" (italics omitted)]; accord, Covina-

Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 56 [stating that

because "further action is contemplated" in case, order was not appealable pursuant to

section 581d]; compare with Laraway v. Pasadena Unified School Dist. (2002) 98

Cal.App.4th 579, 583 ["The August 23, 2000 order was an appealable order: it

contemplated no further action, such as the preparation of another order or judgment"

(italics added)].)16

b. Fidelity's arguments in support of its claim that the December 15 order
constituted a judgment are unpersuasive

Fidelity offers several arguments in support of its contention that the December 15

order constituted a judgment in both actions. We consider each argument below.

Fidelity argues that section 581, subdivision (k) and California Rules of Court,

rule 3.770(c) do not "extend the time to appeal under rule 8.108 of the California Rules of

16 Fidelity cited Laraway in its supplemental briefing.

18
Court."17 (Italics added.) While that may be the case, for the reasons described above,

when considered in light of section 581, subdivision (k) and California Rules of Court,

rule 3.770(c), the December 15 order lacked sufficient finality to constitute a judgment.

Because that order did not constitute a judgment, the time to file an appeal under

California Rules of Court, rule 8.104(a) did not commence with notice of entry of the

December 15 order.

We are not persuaded by Fidelity's contention that section 581, subdivision (k) and

California Rules of Court, rule 3.770(c) provide, "at most, collateral rights" to absent

class members. (Italics added.) By providing that "[n]o [class] action may be

dismissed . . . unless and until notice that the court deems adequate has been given and

the court orders the dismissal," (italics added) section 581, subdivision (k) makes clear

that the giving of notice is a prerequisite to a trial court dismissing a class action.

Similarly, California Rules of Court, rule 3.770(c) conditions the dismissal of a putative

class action on the trial court's determination that "the dismissal will not prejudice"

putative class members.

Also unpersuasive is Fidelity's suggestion that section 581, subdivision (k) did not

deprive the December 15 order of finality in the Kaplan Action because the purpose of

the statute is to ensure that absent class members have notice that a case is being

"unilaterally[, i.e., voluntarily] dismiss[ed]," (italics added) and the December 15

17 California Rules of Court, rule 8.108 provides that the filing of certain motions in
the trial court may extend the period within which a party must file a notice of appeal.

19
dismissal was premised on a "contested motion." (Italics added.) Section 581 is clear

that it operates with respect to both voluntary and involuntary dismissals. For example,

section 581, subdivision (b)(4) provides in relevant part:

"(b) An action may be dismissed in any of the following instances:

"[¶] . . . [¶]

"(4) By the court, without prejudice, when dismissal is made
pursuant to the applicable provisions of Chapter 1.5 (commencing
with Section 583.110)."18 (Italics added.)

Thus, section 581, subdivision (k) cannot reasonably be interpreted as applying

only in cases in which a plaintiff "unilaterally" dismisses a case.

While the text of California Rules of Court, rule 3.770 is less clear than section

581 with respect to whether it applies to involuntary dismissals,19 we conclude that the

18 "Chapter 1.5 (commencing with Section 583.110)," (§ 581, subd. (b)(4)) consists
of statutes pertaining to the dismissal of an action for a delay in prosecution and includes
sections 583.320 and 583.360, pursuant to which the court dismissed the Kaplan Action.

19 California Rules of Court, rule 3.770 provides in its entirety:
"(a) Court approval of dismissal
"A dismissal of an entire class action, or of any party or cause of
action in a class action, requires court approval. The court may not
grant a request to dismiss a class action if the court has entered
judgment following final approval of a settlement. Requests for
dismissal must be accompanied by a declaration setting forth the
facts on which the party relies. The declaration must clearly state
whether consideration, direct or indirect, is being given for the
dismissal and must describe the consideration in detail.
"(b) Hearing on request for dismissal
"The court may grant the request without a hearing. If the request is
disapproved, notice of tentative disapproval must be sent to the
20
rule of court is most reasonably interpreted as applying to both voluntary and involuntary

dismissals, for the following reasons. First, subdivision (c) of the rule, pertaining to the

provision of notice, does not contain any language limiting its application to voluntary

dismissals. Further, California Rules of Court, rule 3.770(c) applies to both class actions

and putative class actions. Since section 581 expressly applies to both involuntary and

voluntary dismissals, adopting a similar interpretation of the corresponding notice

provision in the Rules of Court allows us to "read the statute and rule in harmony."

(Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1210.) For

these reasons, we reject Fidelity's contention that the notice provisions of section 581,

attorneys of record. Any party may seek, within 15 calendar days of
the service of the notice of tentative disapproval, a hearing on the
request. If no hearing is sought within that period, the request for
dismissal will be deemed denied.
"(c) Notice to class of dismissal
"If the court has certified the class, and notice of the pendency of the
action has been provided to class members, notice of the dismissal
must be given to the class in the manner specified by the court. If
the court has not ruled on class certification, or if notice of the
pendency of the action has not been provided to class members in a
case in which such notice was required, notice of the proposed
dismissal may be given in the manner and to those class members
specified by the court, or the action may be dismissed without notice
to the class members if the court finds that the dismissal will not
prejudice them."

21
subdivision (k) and California Rules of Court, rule 3.770(c) are "not implicated when a

defendant seeks to dismiss a claim through a noticed and contested motion."20

Finally, with respect to the Kaplan Action, we are not persuaded by Fidelity's

argument that section 581, subdivision (k) does not "apply to the individual claims and

putative class claims . . . ."21 Section 581, subdivision (a)(1) provides, " '[a]ction' means

any civil action or special proceeding," and section 581, subdivision (k) in turn provides

that "[n]o action may be dismissed," (italics added) unless the required notice is

provided. The statute does not speak to individual claims but rather, to the disposition of

an action in its entirety. Moreover, to construe section 581, subdivision (k) as applying

with respect to individual claims would result in multiple judgments in a single action, in

contravention of the " 'one final judgment' " rule, "a fundamental principle of appellate

practice," that precludes " ' "piecemeal disposition and multiple appeals in a single

action." ' " (Walker v. Los Angeles County Metropolitan Transportation Authority (2005)

35 Cal.4th 15, 21.)

20 Contrary to its argument on appeal, in the trial court, Fidelity took the position that
California Rules of Court, rule 3.770(c) applied with respect to the involuntary dismissal
at issue in this case. (See pt. III.A.1.b, ante.)

21 As with the operative complaint in the Fistolera Action (see pt. II.B, ante), the
operative complaint in the Kaplan Action contained both an individual breach of contract
cause of action and numerous causes of action brought on behalf of both the individual
named plaintiffs and the class.

22
 c. Fidelity's alternative argument that the trial court's February 7 order
constitutes a judgment pursuant to section 581d is not persuasive

Fidelity argues in the alternative that the trial court's February 7 minute order "was

a written order signed by the court effective as a judgment for all purposes under Section

581d." As discussed in part III.A.1.b, ante, the February 7 order specified the form of

notice of the dismissal to be given to class members in the Kaplan Action and determined

that no notice of the dismissal had to be given to putative class members in the Fistolera

Action. However, the February 7 order neither expressly nor implicitly constituted a

dismissal of either the Kaplan Action or the Fistolera Action such that it could be

considered a judgment under section 581d. (See § 581d ["A written dismissal of an

action shall be entered in the clerk's register and is effective for all purposes when so

entered" (italics added)].)22 We therefore reject Fidelity's alternative argument that the

trial court's February 7 order constitutes an appealable judgment pursuant to section

581d.23

22 In addition, with respect to the Kaplan Action, it is clear that the February 7 order
did not result in a final order of dismissal, since the February 7 order specified the
manner in which notice of the dismissal could be given to the class, rather than
constituting an order deeming adequate notice had been given. (See § 581, subd. (k)
[precluding dismissal of a class action "unless and until notice that the court deems
adequate has been given" (italics added)].)

23 In their supplemental brief, plaintiffs contend that "for purposes of . . . [section
581d], there was no 'dismissal[ ]' of the actions until the trial court issued its Order on
Defendant's Motion Regarding Final Judgment and Class Notice on February 28, 2018."
Plaintiffs argue that, since Fidelity provided notice of entry of the February 28 order on
March 9, their May 1 notice of appeal was timely. For the same reason outlined in the
text with respect to the February 7 minute order, we conclude that the trial court's
February 28 formal order did not constitute a judgment pursuant to section 581d.
23
 d. Conclusion

In sum, we conclude that neither the December 15 order nor the February 7 or

February 28 orders constitutes an appealable judgment pursuant to section 581d in either

the Fistolera Action or the Kaplan Action. Accordingly, we conclude that plaintiffs' May

1, 2018 appeal from the March 7, 2018 judgment in the Fistolera Action and May 1, 2018

appeal from the April 2, 2018 judgment in the Kaplan Action are timely.

B. The trial court erred in dismissing the Fistolera action but properly dismissed the
Kaplan Action

Plaintiffs claim that the trial court erred in dismissing both actions for failure to

timely prosecute. The trial court concluded that the Fistolera Plaintiffs failed to bring the

matter to trial within five years of the filing of the complaint (§ 583.310) and that the

Kaplan Plaintiffs failed to bring the matter to trial within three years and forty-five

days24 of the issuance of the remittitur in Kaplan I (§ 583.320, subd. (a)(3)).

We first outline the procedural background and law relevant to both actions and

then consider whether, with respect to each action, the trial court properly dismissed the

action.

1. Procedural background

a. The commencement of each action for purposes of the mandatory
dismissal statutes

The Fistolera Plaintiffs filed the Fistolera Action on August 30, 2012.

24 (See fn. 3, ante.)

24
 On April 14, 2014, this court's remittitur issued in Kaplan I.

b. Fidelity's motions to dismiss and plaintiffs' omnibus opposition thereto
and plaintiffs' ex parte application to consolidate and set the matters for
trial

On August 11, 2017, Fidelity filed a motion to dismiss the Kaplan Action for

failure to bring the case to trial in a timely manner. In its motion, Fidelity contended that

the three-year period for the Kaplan Plaintiffs to bring that action to trial after the

issuance of the remittitur in the prior appeal (§ 583.320, subd. (a)(3)) had expired no later

than May 30, 2017.25

On August 14, 2017, plaintiffs filed an ex parte application to consolidate the

Kaplan Action and the Fistolera Action and to set both matters for trial.

On August 15, 2017, the trial court denied plaintiffs' request to consolidate the two

cases, but set both cases for trial on February 16, 2018.

25 In explaining its calculation of the three-year period, Fidelity acknowledged that
the Kaplan Plaintiffs might be entitled to tolling for the six-day period when a
peremptory challenge was pending and a 39-day period after the granting of the petition
for coordination prior to the assignment of a coordination trial judge. Fidelity calculated
the time to bring the action to trial as follows:
"Giving them every benefit of the doubt, [Kaplan] Plaintiffs were
required to bring this action to trial on or before May 30, 2017.
Remittitur was filed on April 15, 2014 (making April 15, 2017 the
statutory deadline to bring the action to trial, absent any tolling).
Even if [Kaplan] Plaintiffs establish that they are entitled to tolling
for the administrative actions related to the peremptory challenge
and the assignment of a coordination judge, at best the trial deadline
would be tolled forty-five days. Tolling the statutory deadline forty-
five days (39 + 6) renders May 30, 2017 the deadline for trial. May
30, 2017 has long since passed."

25
 On October 11, 2017, Fidelity filed a motion to dismiss the Fistolera Action on the

ground that the Fistolera Plaintiffs had failed to bring the matter to trial within five years

of the filing of the complaint (§ 583.310). Fidelity contended that the five-year period

had expired no later than October 10, 2017.26

Plaintiffs filed an omnibus opposition to Fidelity's motions to dismiss in

November 2017. In their opposition, in addition to agreeing with Fidelity that the five-

year period in the Fistolera Action had been extended by 39 days during the period after

the petition for coordination had been granted and the matter was awaiting the

assignment of a coordination trial judge,27 plaintiffs maintained that the five-year period

26 In explaining its calculation of the five-year period, Fidelity argued, "[T]o the
extent the five-year period could have been tolled by a stay, it could only have occurred
for thirty-nine days during a specific portion of the coordination proceedings." Fidelity
acknowledged that a "complete stay of all proceedings tolls the running of the mandatory
dismissal period" and that proceedings in a coordinated action are "stayed . . . from the
moment coordination is granted until the coordination trial judge is assigned." (Boldface
omitted.) Fidelity further noted that there were 39 days between the time the
coordination motion judge granted the Kaplan Plaintiffs' petition to coordinate (March 3,
2015) and the Judicial Council's appointment of the coordination trial judge (April 10,
2015).
In explaining how the additional 39 days affected its calculation of the five-year
date, Fidelity stated, "Thirty-nine days after August 30, 2017 [five years after the filing of
the August 30, 2012 complaint] is Saturday October 7, 2017 and Monday October 9,
2017 is the Columbus Day holiday."

27 On appeal, the Fistolera Plaintiffs acknowledge that the actual period was only 38
days. Fidelity agrees that this period at issue was 38 days. Fidelity also concedes that the
five-year period should be extended by this period.

26
had been tolled for an additional 132 days28 while the coordination motion was pending.

Plaintiffs argued in part:

"[T]he five‐year period is . . . extended by 132 days from the day the
coordination motion judge was assigned on October 22, 2014[29]
until the coordination petition was granted on March 3, 2015.
'[U]nder the statute, the time between the assignment of the
coordination motion judge and the determination of the coordination
motion is excluded from the five‐year period.' [(Bank of America v.
Superior Court (1988) 200 Cal.App.3d 1000, 1011–1012 & fn. 5
(Bank of America).)] This exclusion is required because [California
Rules of Court,] [r]ule 3.515(i) expressly provides that following the
assignment of the coordination motion judge, 'no trial may be
commenced and no judgment may be entered' in any of the actions
subject to coordination. [California Rules of Court, rule
3.515(i)]."30 (Boldface omitted.)

As a result, the Fistolera Plaintiffs calculated that the five-year period in the

Fistolera Action had been extended by at least a total of 171 days (i.e., 39 days plus 132

days), or until February 20, 2018. The Fistolera Plaintiffs noted that the trial was

28 As explained in footnote 29, post, the actual period is 135 days.

29 On appeal, the Fistolera Plaintiffs correctly note that the actual period at issue was
135 days rather than 132 days. That is because the order assigning the coordination
motion judge was entered on October 19, 2014, not on October 22, 2014.

30 In this opinion, in referring to a pending motion/petition for coordination, we refer
to that period of time between the assignment of the coordination motion judge and the
resolution of the coordination motion/petition. (See pt. III.B.4.a, post [quoting Cal. Rules
of Court, rule 3.515(i)].)

27
scheduled to commence on February 16, 2018, and thus, the case would be brought to

trial within the five-year period.31

With respect to the Kaplan Action, the Kaplan Plaintiffs argued that the three-year

period applicable to that action (§ 583.320, subd. (a)(3)) had been tolled for 171 days due

to the coordination proceedings, for the same reasons that the Fistolera Plaintiffs had

argued with respect to the Fistolera Action. The Kaplan Plaintiffs also claimed that it

was clear that the three-year period had been tolled for six days while a peremptory

challenge was pending in May 2014. As a result of tolling related to the peremptory

challenge and the coordination proceedings, the Kaplan Plaintiffs claimed that the

statutory deadline to bring that case to trial had been extended to at least October 10,

2017.32

The Kaplan Plaintiffs claimed that they were entitled to additional tolling due to

other periods during which, they maintained, it had been impracticable to bring the action

31 Specifically, the Fistolera Plaintiffs argued, "Applying just the foregoing two
exclusions, the five‐year period to bring the [Fistolera Action] to trial must be extended
by 171 days from August 31, 2017 to February 18, 2018. Because February 18, 2018 is a
Sunday and February 19, 2018 is President's Day holiday, the five‐year deadline would
fall on February 20, 2018. [Citation.] Here, the Court has already set the case for trial
on February 16, 2018, which is within the statutory time to bring the [Fistolera Action] to
trial." (Boldface omitted.)

32 The Kaplan Plaintiffs explained that these two periods, alone, "would extend the
deadline to bring the action to trial from April 15, 2017 (which is three years following
the filing of the remittitur on April 14, 2014) to October 9, 2017. Because October 9,
2017 was Columbus Day holiday, the three‐year deadline was extended until October 10,
2017."

28
to trial. For example, the Kaplan Plaintiffs argued that they were entitled to additional

tolling, given the trial court's inability to set the trial on a date earlier than February 16,

2018, notwithstanding that the Kaplan Plaintiffs had requested on August 15, 2017 that

the matter be set for trial. Accordingly, the Kaplan Plaintiffs claimed that the trial court

should "conclude that it would be impracticable or impossible for the Kaplan Plaintiffs to

bring their action to trial before the currently‐set trial date of February 16, 2018." (Italics

omitted.)

c. The trial court's ruling

After a hearing, the trial court dismissed both actions. With respect to the

Fistolera Action, the trial court rejected the argument that, in calculating the five-year

period, the court was required to exclude 135 days during which the Kaplan Plaintiffs'

petition to coordinate the Kaplan Action and the Fistolera Action was pending:

"The court dismisses [the Fistolera Plaintiffs'] complaint for failure
to prosecute the case within five years. The court disagrees with the
Fistolera [Plaintiffs'] arguments that an additional 172 days[33] must
be added due to the coordination proceedings because plaintiffs
would not have been able to proceed to trial on this matter. This
argument was specifically rejected by the Fourth District Court of
Appeal, Division One case Gordon's Cabinet Shop v. State Comp.
Ins. Fund (1999) 74 Cal.App.4th 33, 40–41 [(Gordon's

33 In the hearing on the issue, the trial court stated that the order should have stated
"132" days, rather than "172" days. There appears to be no dispute that the actual period
at issue is 135 days, which corresponds to the period between October 19, 2014, when the
judicial council assigned the coordination motion judge and March 3, 2015, the date of on
which the coordination motion judge granted the petition for coordination.

29
 Cabinet)][34] which involved the predecessor to California Rules of
Court, rule 3.515."

The trial court explained its dismissal of the Kaplan Action as follows:

"Defendant Fidelity National Home Warranty Company's motion to
dismiss the Kaplan sixth amended complaint is granted. Kaplan was
filed on July 18, 2008, over 8 years ago. The court declines to
exercise its discretion to extend the time for trial. It has been over
three years since the Fourth District Court of Appeal, Division One
issued a remittitur on April 15, 2014. [(Kaplan I)] Thus, the
[Kaplan Plaintiffs] had three years in which to proceed to trial under
Code of Civil Procedure sections 583.310 and 583.320. The court
finds that the case was only tolled for 45 days (6 days for a
peremptory challenge, and 39 days for the coordination
assignment[ ])[.] Plaintiffs did not request any other stays."35

In a portion of the trial court's order that appears to apply to both actions, the court

stated:

"Plaintiffs have failed to meet their burden to extend the
computation of time pursuant to . . . section 583.340. Plaintiffs were
required to show they exercised reasonable diligence in preparing for
trial. As set forth in Jordan v. Superstar Sandcars (2010) 182
Cal.App.4th 1416, 1422 [(Jordan)], where the court did not find due
diligence in preparing for trial even during the moratorium in
Sacramento County stated:

"A plaintiff has an obligation to monitor the case in the trial court, to
keep track of relevant dates, and to determine whether any filing,

34 Gordon's Cabinet was decided by the Court of Appeal, Fourth Appellate District,
Division Two, rather than Division One as stated by the trial court. (See Gordon's
Cabinet, supra, 74 Cal.App.4th 33.)

35 It is undisputed that the plaintiffs did not request a stay of either the Fistolera
Action or the Kaplan Action while the coordination proceedings were pending. We
discuss the Rules of Court governing stays ancillary to a coordination proceeding and the
case law addressing the significance of such rules in considering the dismissal for delay
of prosecution statutes, in parts III.B.4.a–b, post.

30
 scheduling, or calendaring errors have occurred. This obligation of
diligence increases as the five-year deadline approaches. (Wilshire
Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280, 1286; see
also Tamburina v. Combined Ins. Co. of America (2007) 147
Cal.App.4th 323, 336 [(Tamburina)].)

"Plaintiffs failed to request a stay at any time pursuant to California
Rules of Court, rule 3.515(a).[36] Plaintiffs' sixth amended
complaint had been stabilized and the ruling denying the motion to
consolidate was finalized since April 2, 2016. And yet, currently
plaintiffs have a motion to amend to substitute in new plaintiffs set
for January 2018, and only at this hearing did plaintiff indicate a date
for the class certification had been reserved. However, no pleadings
have been filed on the class certification motion, and there is no
current representative plaintiff. Plaintiffs blame the lack of
discovery result [sic] are due to defendants' actions. However,
plaintiffs did not pursue motions to compel. Plaintiffs assert they
had to wait for the court's ruling on the appeal, but they had the
ability to request a stay if they actually believed the issues were
intertwined."

2. The law governing mandatory dismissal for failure to prosecute

a. The statutory scheme for delay in prosecution

California has a series of statues pertaining to the dismissal of a case due to a

party's delay in prosecuting a civil case. (See § 583.110 et seq.)

i. The five-year period for bringing an action to trial

Among these statutes is section 583.310, which provides, "An action shall be

brought to trial within five years after the action is commenced against the defendant."

(Ibid.)

36 (See pt. III.B.4.a, post.)

31
 ii. The three-year period for bringing an action to trial after the
ordering of a new trial

Section 583.320 specifies a three-year period for bringing an action to trial after an

order granting a new trial, and provides in relevant part:

"(a) If a new trial is granted in the action[,] the action shall again be
brought to trial within the following times:

"[¶] . . . [¶]

"(3) If on appeal an order granting a new trial is affirmed or a
judgment is reversed and the action remanded for a new trial, within
three years after the remittitur is filed by the clerk of the trial court."

iii. Computation of the mandatory dismissal period

Section 583.340 provides that certain time periods are to be "excluded" from the

time within which an action must be brought to trial, as follows:

"In computing the time within which an action must be brought to
trial pursuant to this article, there shall be excluded the time during
which any of the following conditions existed:

"(a) The jurisdiction of the court to try the action was suspended.

"(b) Prosecution or trial of the action was stayed or enjoined.

"(c) Bringing the action to trial, for any other reason, was
impossible, impracticable, or futile."

"The . . . Law Revision Commission comment to section 583.340 states: 'Under

Section 583.340 the time within which an action must be brought to trial is tolled for the

period of the excuse, regardless whether a reasonable time remained at the end of the

period of the excuse to bring the action to trial. . . .' [Citation.] Thus, a condition of

impossibility, impracticability, or futility need not take the plaintiff beyond the five-year

32
deadline to be excluded; it will be excluded even if the plaintiff has a reasonable time

remaining after the period to bring the case to trial." (Gaines v. Fidelity National Title

Ins. Co. (2016) 62 Cal.4th 1081, 1100–1101 (Gaines).)

Because section 583.340 "was proposed by the California Law Revision

Commission and enacted . . . without change," courts have repeatedly stated that " 'the

report of the commission is entitled to substantial weight in construing the statute. . . .' "

(Chin v. Meier (1991) 235 Cal.App.3d 1473, 1476–1477.)

iv. Dismissal

Section 583.360 requires the dismissal of an action that is not timely brought to

trial as follows:

"(a) An action shall be dismissed by the court on its own motion or
on motion of the defendant, after notice to the parties, if the action is
not brought to trial within the time prescribed in this article.

"(b) The requirements of this article are mandatory and are not
subject to extension, excuse, or exception except as expressly
provided by statute."

b. The strong policy preference in favor of trials on the merits

The Legislature has expressly provided that "the policy favoring trial . . . of an

action on the merits [is] generally to be preferred over the policy that requires dismissal

for failure to proceed with reasonable diligence in the prosecution of an action. . . ."

(§ 583.130.) "Accordingly, the tolling provisions of . . . section 583.340 must be liberally

construed consistent with the policy favoring trial on the merits." (Dowling v. Farmers

Ins. Exchange (2012) 208 Cal.App.4th 685, 693–694 (Dowling); see also Cal. Law

Revision Com. com., 15C West's Ann. Code Civ. Proc. (2011 ed.) foll. § 583.340, p. 457

33
["The provisions of [section 583.340], subdivision (c) must be interpreted liberally,

consistent with the policy favoring trial on the merits"].)

3. Standards of review

In Gaines, supra, 62 Cal.4th 1081, the Supreme Court explained that reviewing

courts generally apply the abuse of discretion standard of review in determining whether

a period is excludable due to "impossibility, impracticability, or futility" (capitalization &

italics omitted) under section 583.340, subdivision (c). (Gaines, supra, at p. 1100.)

However, in applying the abuse of discretion standard, " '[t]he trial court's . . .

conclusions of law are reviewed de novo . . . ." (Ibid.) That is because "[i]t is an abuse

of discretion for a trial court to misinterpret or misapply the law." (Prigmore v. City of

Redding (2012) 211 Cal.App.4th 1322, 1334.)

Reviewing courts have frequently applied the de novo standard of review to claims

that the trial court committed legal error in dismissing a case for failure to timely

prosecute an action. (See, e.g., Tamburina, supra, 147 Cal.App.4th at p. 328 [stating that

"although generally the determination whether prosecution of an action was

impracticable is a matter within the trial court's discretion and subject to the abuse of

discretion review standard," appellate court independently reviews "the applicability of

section 583.340 [, subdivision] (c) to undisputed facts"]; Tanguilig v. Neiman Marcus

Group, Inc. (2018) 22 Cal.App.5th 313, 324 (Tanguilig) [stating that "a trial court's

determination of whether section 583.310 was tolled for impossibility, impracticability,

or futility," is ordinarily reviewed for an abuse of discretion, but that an appellate court

34
reviews de novo "whether the trial court properly interpreted section 583.310, section

583.340, subdivision (c), or some other question of law"].)

4. The trial court erred in dismissing the Fistolera Action

The Fistolera Plaintiffs claim that the trial court erred in dismissing the Fistolera

Action for failing to bring the action to trial within five years, as required pursuant to

section 583.310.

The Fistolera Plaintiffs note that, pursuant to section 583.340, subdivision (c), the

trial court was required to exclude from the five-year period that they had to bring the

action to trial under section 583.310, any time during which "[b]ringing the action to

trial. . . was impossible, impracticable, or futile." (§ 583.340, subd. (c).) The Fistolera

Plaintiffs contend that the trial court erred in failing to exclude 135 days between the date

of the assignment of a judge to determine the coordination motion and the date the

coordination motion was decided. The Fistolera Plaintiffs maintain that it was impossible

or impracticable to bring the Fistolera Action to trial during this period because the law

provides that that "no trial may be commenced" in an action that is the subject of a

pending petition for coordination. (Cal. Rules of Court, rule 3.515(i).) The Fistolera

Plaintiffs argue that the Fistolera Action would not have been subject to dismissal if the

trial court had properly excluded these 135 days from the five-year period.

In evaluating the Fistolera Plaintiffs' claim, we must determine whether the trial

court abused its discretion in calculating the five-year period under section 583.310 by

failing to exclude the 135-day time period during which the petition to coordinate the

Kaplan Action and the Fistolera Action was pending. The answer to this question turns

35
primarily on our de novo interpretation of both the relevant provisions of statutory law

and the relevant Rules of Court pertaining to coordination petitions. (See Gordon's

Cabinet, supra, 74 Cal.App.4th at p. 38 [stating that "[t]he resolution of the question of

tolling while the coordination petition was pending concerns the construction of statutory

matter," and that "[a]s to pure questions of law, such as procedural matters or

interpretations of rules or statutes, we exercise our independent judgment"].)

a. Relevant provisions of the California Rules of Court pertaining to
petitions for coordination

California Rules of Court, rule 3.515 (Rule 3.515) outlines the law governing a

motion for stay ancillary to a petition for coordination. Rule 3.515(a) provides:

"Motion for stay

"Any party may file a motion for an order under Code of Civil
Procedure section 404.5[37] staying the proceedings in any action
being considered for, or affecting an action being considered for,
coordination, or the court may stay the proceedings on its own
motion. The motion for a stay may be included with a petition for
coordination or may be served and submitted to the Chair of the
Judicial Council and the coordination motion judge by any party at
any time prior to the determination of the petition."

Rule 3.515(h) and (j) govern the effect of a stay order and provide in relevant part:

"(h) Effect of stay order

"Unless otherwise specified in the order, a stay order suspends all
proceedings in the action to which it applies. A stay order may be

37 Section 404.5 provides, "Pending any determination of whether coordination is
appropriate, the judge making that determination may stay any action being considered
for, or affecting an action being considered for, coordination."

36
 limited by its terms to specified proceedings, orders, motions, or
other phases of the action to which the order applies.

"[¶] . . . [¶]

"(j) Effect of stay order on dismissal for lack of prosecution

"The time during which any stay of proceedings is in effect under
the rules in this chapter must not be included in determining whether
the action stayed should be dismissed for lack of prosecution under
chapter 1.5 (§ 583.110 et seq.) of title 8 of part 2 of the Code of Civil
Procedure."

Even where a stay is not requested, Rule 3.515(i) specifies that no trial may be

commenced in an action to which a coordination motion judge has been assigned:

"Effect of absence of stay order

"In the absence of a stay order, a court receiving an order assigning a
coordination motion judge may continue to exercise jurisdiction over
the included action for purposes of all pretrial and discovery
proceedings, but no trial may be commenced and no judgment may
be entered in that action unless trial of the action had commenced
before the assignment of the coordination motion judge." (Italics
added.)

b. Case law pertaining to the interaction between the Rules of Court
governing coordination petitions and the dismissal for delay in
prosecution statutes

In Bank of America, supra, 200 Cal.App.3d 1000, the Court of Appeal considered

several questions related to the ways in which the five-year statutory period for bringing

an action to trial may be affected by the Rules of Court governing a petition for

coordination. The petitioners in Bank of America were defendants in two coordinated

actions who sought "a writ of prohibition and/or mandamus directing the Stanislaus

County Superior Court sitting as a coordination trial court to vacate its order specially

37
setting the case for trial and to dismiss the action for failure to bring it to trial within five

years as required by Code of Civil Procedure section 583.360." (Id. at pp. 1005–1006.)

As relevant to this appeal, the Bank of America court noted that the petitioners

"concede[d] that the period while the petition for coordination was pending may be

excluded [from the five-year period to bring the action to trial] under [former California

Rules of Court,] rule 1514(d)[38] thereby extending the five-year period . . . ." (Id. at p.

1011.) The Bank of America court added that the petitioners' "concession appears

reasonable since during this period 'no trial shall be commenced and no judgment shall be

entered . . . .' ([Former Cal. Rules of Court,] [r]ule 1514(d).)" (Id. at p. 1012.) The Bank

of America court explained its endorsement of the petitioners' concession in part as

follows:

"[A]part from [former California Rules of Court,] rule 1514(f),[39]
if the trial cannot be commenced, it would be impracticable if not

38 Former California Rules of Court, rule 1514(d) is the predecessor to Rule 3.515(i).
The Bank of America court noted that former California Rules of Court, rule 1514(d)
provided, " 'In the absence of a stay order, a court receiving an order assigning a
coordination motion judge may continue to exercise jurisdiction over the included action
for purposes of all pretrial and discovery proceedings, but no trial shall be commenced
and no judgment shall be entered in that action . . . .' " (Bank of America, supra, 200
Cal.App.3d at p. 1012, fn. 5, italics added in original.) As noted in the text, nearly
identical language appears in Rule 3.515(i).

39 Former California Rules of Court, rule 1514(f) is the predecessor to Rule 3.515(j).
The Bank of America court noted that former California Rules of Court, rule 1514(f)
provided, "The time during which any stay of proceedings is in effect pursuant to these
rules shall not be included in determining whether the action stayed should be dismissed
for lack of prosecution pursuant to chapter 1.5 (§ 583.110 et seq.) of title 8 of part 2 of
the Code of Civil Procedure." As noted in the text, very similar language appears in Rule
3.515(j).

38
 impossible to '[bring] the action to trial' as provided by section
583.340. Thus, under the statute, the time between the assignment
of the coordination motion judge and the determination of the
coordination motion is excluded from the five-year period." (Id. at
p. 1012, fn. 5.)

Ultimately, the Bank of America court concluded that the underlying action had

not been brought to trial within the five-year period, even after excluding the time

between the assignment of the coordination motion judge and the determination of the

coordination motion in that case. (Bank of America, supra, 200 Cal.App.3d at p. 1016.)

In Gordon's Cabinet, supra, 74 Cal.App.4th 33, the plaintiff claimed on appeal

that the trial court had erred in dismissing its action for failing to bring the action to trial

within five years. (Id. at p. 35.) The plaintiff argued that the five-year period had been

tolled while the defendant's petition to coordinate the action with several other actions

had been pending. (Id. at pp. 35–36, 40.) Specifically, the plaintiff maintained that this

period could not be included in the five-year period pursuant to section 583.340,

subdivision (a). (See Gordon's Cabinet, supra, at p. 40 ["Plaintiff points out that the five-

year statute provides that it shall be tolled whenever '[t]he jurisdiction of the court to try

the action was suspended.' (Code Civ. Proc., § 583.340, subd. (a).)"].) The Gordon's

Cabinet court rejected this argument because the action had not been stayed while the

coordination proceedings were pending, reasoning in part:

"[Former] California Rules of Court, rule 1514(f) expressly states
that, 'The time during which any stay of proceedings is in effect
pursuant to these rules shall not be included in determining whether
the action stayed should be dismissed for lack of prosecution . . . .'
(Italics added.) Thus, in the rule concerning stay orders for
coordination proceedings, express provision is made to toll the five-
year statute when a stay is granted. By implication, no tolling

39
 should be imputed to coordination proceedings unless a stay is
granted. No stay was ever issued in connection with [defendant's]
petition for coordination. [Former California Rules of Court,] [r]ule
1514(d) by its terms applies only 'In the absence of a stay order.'
(Italics added.) It would be absurd to hold that the five-year statute
is tolled only when a stay has been granted, but nevertheless to hold
that the statute is also tolled under a provision that applies only in
the absence of a stay order.

"Moreover, we do not believe that [former] California Rules of
Court, rule 1514(d) operated to suspend the jurisdiction of the court
to try the case in any fundamental sense. Indeed, [former California
Rules of Court,] rule 1514(d) expressly states that the trial court
'may continue to exercise jurisdiction over the included action for
purposes of all pretrial and discovery proceedings.' (Italics added.)"
(Id. at pp. 40–41.)

The Gordon's Cabinet court also noted that "[p]aintiff cites [Bank of America,

supra, 200 Cal.App.3d 1000], in support of its argument that [former] California Rules of

Court, rule 1514(d) operates as a suspension of the jurisdiction of the trial court to 'try' an

action." (Gordon's Cabinet, supra, 74 Cal.App.4th at p. 41.) The Gordon's Cabinet

court rejected this contention, asserting that Bank of America was "not controlling on this

point." (Ibid.)

Finally, the Gordon's Cabinet court concluded that the Bank of America court's

statements pertaining to former California Rules of Court, rule 1514(d) were dicta:

"[T]o the extent the Bank of America court purported to hold that the
provision of [former California Rules of Court,] rule 1514(d),
precluding the commencement of a trial while the coordination
petition was pending acted as a suspension of jurisdiction to try the
case, or made it impossible, impracticable or futile[40] to bring the

40 Although the Gordon's Cabinet court did not expressly refer to section 583.340,
subdivision (c) at any point in its opinion, this quotation implicitly refers to that
subdivision. (See § 583.340, subd. (c) [excluding from the period in which a party is
40
 case to trial, its pronouncements in that regard were dicta. The
ultimate result in Bank of America was that the Court of Appeal
ordered the trial court to vacate its order specially setting the case for
trial, and directed the trial court to enter an order dismissing the case
for failure to prosecute within five years. [Citation.] Even if the
Bank of America court considered the five-year statute tolled during
the pendency of a coordination petition, under [former California
Rules of Court,] rule 1514(d), the action was still untimely. Thus,
the Bank of America court's construction of [former California Rules
of Court,] rule 1514(d) has no precedential value." (Gordon's
Cabinet, supra, 74 Cal.App.4th at p. 41.)

c. Application

i. It was impossible for the Fistolera Plaintiffs to bring the
Fistolera Action to trial while the Kaplan Plaintiffs' petition for
coordination was pending, given that Rule 3.515(i) expressly
provides that "no trial may be commenced," while such a petition
is pending

We must first ask whether "[b]ringing the [Fistolera Action] to trial. . . was

impossible, impracticable, or futile," (§ 583.340, subd. (c)) during the 135 days

immediately following the assignment of the coordination motion judge. The relevant

Rule of Court expressly provides that "no trial may be commenced" in an action in which

a "court [has] receiv[ed] an order assigning a coordination motion judge." (Rule

3.515(i).) Thus, the text of the relevant law makes it clear that the action could not have

been brought to trial during that period.41

required to bring an action to trial any time during which "[b]ringing the action to
trial . . . was impossible, impracticable, or futile" (italics added)].)

41 " 'Rules of court have the force of law and are as binding as procedural statutes as
long as they are not inconsistent with statutory or constitutional law.' " (In re I.V. (2017)
11 Cal.App.5th 249, 256.)

41
 Further, in determining the applicability of section 583.340, subdivision (c), we

are mindful that "the tolling provisions of . . . section 583.340 must be liberally construed

consistent with the policy favoring trial on the merits" (Dowling, supra, 208 Cal.App.4th

at pp. 693–694) and the specific statutory policy preference "favoring trial . . . of an

action on the merits" over dismissals for failure to prosecute. (§ 583.130.) In addition,

the reasoning of the Bank of America court in which the Court of Appeal expressly stated,

"[U]nder the statute, the time between the assignment of the coordination motion judge

and the determination of the coordination motion is excluded from the five-year period,"

provides clear support for the conclusion that it would have been impossible to bring the

case to trial while the coordination petition was pending. (Bank of America, supra, 200

Cal.App.3d at p. 1012, fn. 5.)

Gordon's Cabinet does not convince us to reach a different result. To begin with,

the bulk of the Gordon's Cabinet court's analysis pertains to section 583.340, subdivision

(a) and the question whether a pending coordination motion extends the time to bring an

action to trial due to a suspension of jurisdiction. (See § 583.340, subd. (a) [excluding

from the period in which a party is required to bring an action to trial any time during

which "[t]he jurisdiction of the court to try the action was suspended"].) The Fistolera

Plaintiffs do not claim that the Kaplan Plaintiffs' coordination motion had the effect of

42
suspending the San Joaquin County Superior Court's jurisdiction in the Fistolera

Action.42 Thus, this portion of the Gordon's Cabinet is inapposite to this appeal.

However, we have considered the Gordon's Cabinet court assertion that we may

infer by way of "implication" that "no tolling should be imputed to coordination

proceedings unless a stay is granted." (Gordon's Cabinet, supra, 74 Cal.App.4th at p. 40

[in determining how to apply section 583.340, subdivision (c)].)43 The Gordon's

Cabinet court reasoned that, since former California Rules of Court, rule 1514(f) (current

Rule 3.515(j)) provided that a stay of proceedings tolls the running of the five-year period

for bringing an action to trial, it would not be reasonable to conclude that a petition to

coordinate results in tolling in the absence of a stay. (Gordon's Cabinet, supra, at p. 40.)

In explaining this reasoning, the Gordon's Cabinet court stated, "[I]n the rule concerning

stay orders for coordination proceedings, express provision is made to toll the five-year

statute when a stay is granted." (Ibid., citing former California Rules of Court, rule

1514(f) (current Rule 3.515(j)), italics altered.)

Yet, a careful reading of former California Rules of Court, rule 1514(f) (current

Rule 3.515(j)) demonstrates that the rule does not contain any express reference to the

42 As the Fistolera Plaintiffs state in their reply brief, "[A]lthough the San Joaquin
Superior Court's jurisdiction was not suspended and no stay was imposed while the
coordination petition was pending, Rule 3.515(i) made it 'impossible' to bring the
action to trial during that period."

43 Fidelity makes a similar argument in its brief, contending, "Fistolera Plaintiffs thus
impermissibly seek the tolling benefit of a stay without ever having moved for a stay."
(Italics omitted.)

43
five-year statute (§ 583.310). Rather, both the former and the current Rule of Court refer

to the entire collection of statutes pertaining to dismissal for delay in prosecution:

"The time during which any stay of proceedings is in effect pursuant
to these rules shall not be included in determining whether the action
stayed should be dismissed for lack of prosecution pursuant to
chapter 1.5 (§ 583.110 et seq.) of title 8 of part 2 of the Code of Civil
Procedure." (Former California Rules of Court, rule 1514(f), italics
added.)44

More specifically, Chapter 1.5 (§ 583.110 et seq.) of title 8 of part 2 of the Code of

Civil Procedure contains both mandatory dismissal time periods for failing to prosecute

an action (§§ 583.310 [five years after the filing of a complaint], 583.320 [three years

after granting of a new trial]) and discretionary dismissal time periods (§ 583.420

[specifying various periods, some as short as two years after various proceedings during

which a court may exercise its discretion to dismiss an action]). Thus, obtaining a stay

ensures that the time during which the stay is in effect will not be included in determining

either the mandatory (§§ 583.310, 583.320) or discretionary (§ 583.420) dismissal

periods.45 (See former Cal. Rules of Court, rule 1514(f), Rule 3.515(j).) It is not

reasonable to conclude that the failure to obtain a stay results, by necessary implication,

in the absence of a tolling of a mandatory dismissal period. In short, the text of the Rule

of Court governing a stay ancillary to a coordination petition (former Cal. Rules of Court,

44 Current Rule 3.515(j) is not materially distinct.

45 Obtaining a stay also ensures that the period during which the stay is in effect will
not be included in determining the time within which a party must serve a summons and
complaint. (§ 583.250.)

44
rule 1514(f), Rule 3.515(j)) does not, in our view, support the implication that the

Gordon's Cabinet court ascribes to it.

Drawing such an inference would be contrary to the plain language of Rule

3.515(i) (former Cal. Rules of Court, rule 1514(d)). As discussed above, since under

Rule 3.515(i) (former Cal. Rules of Court, rule 1514(d)), "no trial may be commenced" in

an action in which a "court [has] receiv[ed] an order assigning a coordination motion

judge," the existence of a pending coordination motion clearly makes it "impossible,

impracticable, or futile" (§ 583.340, subd. (c)) to bring the case to trial during the

pendency of the motion. Thus, that time must be excluded in calculating the mandatory

dismissal periods. (§§ 583.310, 583.320.)

Finally, while the Gordon's Cabinet court stated that the Bank of America court's

statement that the existence of a pending coordination petition makes it impossible,

impracticable or futile to bring the case to trial, (Bank of America, supra, 200 Cal.App.3d

at p. 1012, fn. 5) is dicta (Gordon's Cabinet, supra, 74 Cal.App.4th at p. 41), the

Gordon's Cabinet court did not offer any substantive critique of the Bank of America

court's reasoning in this regard. In our view, the Bank of America court's conclusion is

consistent with both the plain language of the relevant law and the statutorily specified

underlying policy preferences of the Legislature in this context. For these reasons, we

conclude, consistent with Bank of America, that bringing the Fistolera Action to trial

"was impossible, impracticable, or futile," (§ 583.340, subd. (c)) during the 135 days that

the coordination motion was pending.

45
 Further, section 583.340, subdivision (c) provides that the time during which it

was "impossible, impracticable, or futile," to bring the action to trial "shall be excluded,"

when "computing the time within which an action must be brought to trial pursuant to

this article . . . ." Thus, the trial court erred in failing to exclude the 135 days during

which the coordination period was pending from its calculation of the five-year period. If

the trial court had properly excluded this period, the five-year period for bringing the

matter to trial would have ended on February 20, 2018.46 Thus, the trial court erred in

granting Fidelity's motion to dismiss on December 15, 2017.

ii. Fidelity's arguments to the contrary are unpersuasive

Fidelity's alternative arguments in support of affirmance are not persuasive.

Fidelity contends that the Fistolera Plaintiffs could not show merely that it was

" 'impossible, impracticable, or futile' to bring the cases to trial during the discrete time

periods for which [the Fistolera] Plaintiffs seek discretionary tolling." Rather, Fidelity

maintains, the Fistolera Plaintiffs were required to demonstrate that "those discrete

periods prevented the cases from going to trial within the . . . five-year . . . mandatory

46 We calculate the five-year period as follows. August 30, 2017 was five years after
the filing of the August 30, 2012 complaint. Fidelity acknowledges that the 38 days
between the date that the coordination motion judge granted the petition for coordination
and the date that the Judicial Council assigned the coordination trial judge are to be
excluded from the five-year period. For the reasons stated in the text, we conclude that
an additional 135 days between the date that the coordination motion judge was assigned
to the date that the coordination motion judge granted the petition for coordination are to
be excluded from the five-year period. 173 days (38 days plus 135 days) after August 30,
2017 is February 19, 2018, which was a court holiday. Thus, the five-year period ended
the following day, February 20, 2018.

46
period[ ]." (Italics omitted.) This argument is contrary to the language of section

583.340, subdivision (c), which provides that the time during which it was impossible or

impracticable to bring the matter to trial is excluded from the mandatory period. (See

§ 583.340 ["In computing the time within which an action must be brought to trial

pursuant to this article, there shall be excluded the time during which any of the

following conditions existed . . ."].) Fidelity's argument is also in tension with the Law

Revision Commission comments following section 583.340 and with case law, both of

which make clear that, " ' "[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." ' " (Tanguilig, supra, 22 Cal.App.5th at p.

324, italics added; see also Gaines, supra, 62 Cal.4th at p. 1101 [quoting Law Review

Commission comments].)

Fidelity also argues that we may affirm the trial court's order dismissing the

Fistolera Action based on the trial court's statement that the Fistolera Plaintiffs had not

"exercised reasonable diligence in preparing for trial." We are not persuaded. To begin

with, the question of whether a plaintiff has acted with reasonable diligence is relevant in

"establishing a condition of impossibility, impracticability, or futility in the first

instance . . . ." (Gaines, supra, 62 Cal.4th at p. 1101.) For example, in determining

whether a court calendaring error should give rise to tolling under section 583.340,

subdivision (c), a court should consider that "[t]he exercise of such diligence includes the

obligation to monitor the case in the trial court to ascertain whether any filing, scheduling

47
or calendaring errors have occurred." (Wilshire Bundy Corp. v. Auerbach (1991) 228

Cal.App.3d 1280, 1287.) However, in this case, no amount of diligence on the part of the

Fistolera Plaintiffs would have permitted them to bring the action to trial during the time

that the coordination petition was pending, since Rule 3.515(i) specifically provides that

"no trial may be commenced" during this period.

Further, we question whether a trial court may refuse to apply section 583.340,

subdivision (c) where it has "been shown that there was a period during which the

bringing of the matter to trial was impossible, impracticable or futile," on the ground that

the plaintiff has not acted with reasonable diligence in prosecuting the action, generally.

(Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217

Cal.App.3d 464, 471 [stating that adoption of section 583.340, subdivision (c)

"abrogated" case law permitting the dismissal of cases "regardless whether there was a

period of impossibility, impracticability, or futility which occurred during the statutory

period, if there is a reasonable time within which to bring the matter to trial"].)

However, even assuming that a trial court may refuse to apply section 583.340,

subdivision (c) due to a plaintiff's lack of reasonable diligence in preparing for trial that is

unrelated to the ground on which the plaintiff seeks tolling, 47 we may not affirm on this

47 In other words, we assume that it would have been legally permissible for the trial
court to have concluded that it was impossible for the Fistolera Plaintiffs to have brought
the case to trial during the 135 days when the coordination petition was pending, but
nevertheless to refuse to toll the five-year time period for these 135 days on the ground
that Fistolera Plaintiffs did not exercise reasonable diligence in preparing for trial.

48
basis for two reasons. First, it appears that the trial court dismissed the Fistolera Action

primarily because the court believed that Gordon's Cabinet required rejection of the

Fistolera Plaintiffs' argument that the five-year period was tolled while the petition for

coordination was pending.48 We have concluded that the trial court erred in this regard,

and it appears unlikely that the court would have dismissed this case, but for this error.

This reason, alone, supports reversal.

Second, in any event, none of the reasons that the trial court referenced in its order

on this issue, whether considered individually or cumulatively, provides an adequate

basis for concluding that the Fistolera Plaintiffs failed to exercise reasonable diligence

such that the trial court could refuse to toll the five-year period for the 135 days that the

coordination petition was pending under section 583.340, subdivision (c).

To begin with, the trial court stated, "Plaintiffs failed to request a stay at any time

pursuant to California Rules of Court, rule 3.515(a)." Failing to obtain a stay while the

coordination motion was pending does not amount to a lack of reasonable diligence in

prosecuting the action. On the contrary, by continuing to litigate the action while the

coordination motion was pending, the Fistolera Plaintiffs exhibited diligence, attempting

48 As noted in part III.B.1.c, ante, the trial court's order states in relevant part, "The
court disagrees with the Fistolera [Plaintiffs'] arguments that an additional [135] days
must be added due to the coordination proceedings because plaintiffs would not have
been able to proceed to trial on this matter. This argument was specifically rejected
by . . . [the court in Gordon's Cabinet] . . . ."

49
to advance the litigation, even though, pursuant to Rule 3.515(i), "no trial [could] be

commenced" while the coordination was pending.

The trial court also stated:

"Plaintiffs' sixth amended complaint had been stabilized and the
ruling denying the motion to consolidate was finalized since April 2,
2016. And yet, currently plaintiffs have a motion to amend to
substitute in new plaintiffs set for January 2018 . . . ."

In making these statements, the trial court conflated the Kaplan Action and the

Fistolera Action, since a sixth amended complaint had been filed in the Kaplan Action,

and the motion for leave to amend to substitute a new plaintiff was filed in the Fistolera

Action. Further, with respect to the motion for leave to amend to substitute a new

plaintiff, the trial court did not indicate that the Fistolera Plaintiffs had failed to act

diligently in filing their motion upon learning of the Fistolera Plaintiffs' desire to

withdraw from the case.

The court also stated:

"[N]o pleadings have been filed on the class certification motion,
and there is no current representative plaintiff."

These statements were factually incorrect, since plaintiffs had filed class

certification motions in both the Fistolera Action and the Kaplan Action prior to the trial

court granting the motion to dismiss.49 In addition, at the time the court dismissed the

49 In the Kaplan Action, the motion was to certify additional claims; a class had
already been certified. Although plaintiffs filed class certification motions prior to the
court's granting of the motion to dismiss, the hearing on the motions was scheduled for
April 2018, a date after the expiration of the five-year period. (See pt. II.H, ante.)

50
Fistolera Action, representative plaintiffs of the putative class remained in the Fistolera

Action,50 since the court had not yet ruled on their motion for leave to amend the

complaint to substitute a new representative plaintiff.

The trial court also stated:

"Plaintiffs blame the lack of discovery result are due [sic] to
[Fidelity's] actions. However, plaintiffs did not pursue motions to
compel."

Contrary to the trial court's statement, the record indicates that the Fistolera

Plaintiffs did file two motions to compel, and that those motions were granted.

Finally, the trial court stated:

"Plaintiffs assert they had to wait for the court's ruling on the appeal,
but they had the ability to request a stay if they actually believed the
issues were intertwined."

This statement refers to the Fistolera Plaintiffs' contention that the Fistolera Action

was tolled during the pendency of the appeal in the Kaplan Action.51 However, even

assuming that the Fistolera Action was not tolled during the pendency of the Kaplan

50 Indeed, they remain in this case as parties on appeal.

51 Specifically, the Fistolera Plaintiffs argued at the hearing on the motion to dismiss
that the five-year period for bringing the Fistolera Action to trial was extended 592 days
to account for the period during which the Kaplan Action was pending on appeal. The
Fistolera Plaintiffs contended that the appeal in the Kaplan Action made it "impracticable
to bring [the Fistolera Action] to trial."
The Fistolera Plaintiffs raise this contention as an alternative argument on appeal.
In light of our conclusion that the court erred in dismissing the Fistolera Action for the
reasons stated in the text, we need not consider this argument.

51
appeal, the Fistolera Plaintiffs still obtained a trial date prior to the expiration of the five-

year period, when properly calculated as indicated above.

Accordingly, we conclude that we may not affirm the trial court's order on the

ground that the Fistolera Plaintiffs did not "exercise[ ] reasonable diligence in preparing

for trial."

Finally, Fidelity argues that "[e]ven if the motion to add a new plaintiff had been

granted,[52] the new named plaintiff plainly could not have taken the putative Fistolera

class action from amended complaint to trial in the 21 days leading up to the February 16,

2018 trial . . . (See Massey v. Bank of America (1976) 56 Cal.App.3d 29, 33 [(Massey)]

[affirming dismissal of putative class-action[53] 34 days prior to five-year deadline

[because] 'it is undisputed that the 34 days remaining of that [statutory] period was

grossly inadequate for the giving of [class] notice . . . and to allow even a reasonable

period for exercise by the class members of their options'].)"54 While we have carefully

52 To be precise, the motion at issue was styled as a motion for leave to amend the
second amended complaint to dismiss Aliabadi, Fistolera, and Palacios as named
plaintiffs and to add Richard Eidson as a named plaintiff.

53 While Fidelity's parenthetical suggests that the Massey court dismissed the entire
action, in fact, as discussed in the text, the Massey court dismissed only the "class aspect
of the action" (Massey, supra, 56 Cal.App.3d at p. 33) pursuant to the mandatory
dismissal statutes.

54 (See also Warner Bros. Entertainment Inc. v. Superior Court (2018) 29
Cal.App.5th 243, 263 [citing Massey for the proposition that "a class action must be
dismissed under the five-year statute if the class issues are not decided with enough time
for notice to the class and a minimally reasonable period for class members to exercise
their options before trial begins"].)

52
considered whether we may apply Massey to affirm the trial court's order dismissing the

Fistolera Action and the subsequent judgment, we conclude that we may not do so in this

case, for the following reasons.

First, we have serious questions about whether Massey correctly concluded that a

court may dismiss the "class aspect of the action," (Massey, supra, 56 Cal.App.3d at p.

33, italics added) pursuant to the mandatory dismissal statutory scheme (§§ 583.310,

583.360).55 While Massey was decided under former section 583, subdivision (b), that

statute, like current section 583.310, provides that an "action" shall be brought to trial

within five years. (Italics added.) In addition, former section 583, subdivision (b) and

current section 583.360 provide for the dismissal of an "action" for failure to timely

prosecute. (See § 583.360, subd. (a) ["An action shall be dismissed by the court on its

own motion or on motion of the defendant, after notice to the parties, if the action is not

brought to trial within the time prescribed in this article" (italics added)].)

The meaning of the term "action" in the context of the mandatory dismissal

statutes was explained in Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298:

"An action is not limited to the complaint but refers to the entire judicial proceeding . . .

and is generally considered synonymous with 'suit.' [Citation.] Action is not the same as

cause of action. . . . [¶] The Courts have generally used the word 'action' to refer to the

55 The Massey court affirmed a separate order "grant[ing] . . . summary judgment on
plaintiff's individual cause of action," for reasons entirely unrelated to the five-year
failure to prosecute statute. (See Massey, supra, 56 Cal.App.3d at pp. 33–34, italics
added.)

53
proceeding or suit and not to the cause of action." (Accord, Lu v. Hawaiian Gardens

Casino, Inc. (2010) 50 Cal.4th 592, 597 ["the term 'action' is not interchangeable with

'cause of action' "].)

Nothing in the text of the mandatory dismissal statutes supports the conclusion

that courts may dismiss individual causes of action or "aspect[s]" (Massey, supra, 56

Cal.App.3d at p. 33) of causes of action. Massey does not provide any analysis of this

issue and we are reluctant to conclude that a court may dismiss the "class aspect of the

action," (ibid.) given the statutory text.56

However, even assuming that a court may dismiss the "class aspect" of an action

pursuant to sections 583.310, 583.360, Massey does not support affirmance in this case,

for two reasons. First, as noted in part II.B, ante, the operative second amended

complaint contains an individual (nonclass) breach of contract cause of action as well as

several causes of action brought on behalf of both the individual named plaintiffs and the

class. Fidelity has not demonstrated that the individual breach of contract cause of action

and the individual aspects of the other causes of action could not have been tried before

56 We acknowledge that in Brumley v. FDCC California, Inc. (2007) 156
Cal.App.4th 312 (Brumley), the Court of Appeal concluded that the dismissal statutes
may be applied to individual causes of action rather than to an entire action under certain
limited circumstances. (Id. at pp. 322, 325 [concluding that causes of action alleged in an
amended complaint that did not relate back to original claims were not subject to
dismissal upon the running of the five-year period for the original claims notwithstanding
that "the plain language of section 583.310 . . . refers to dismissal of an entire 'action,'
rather than separate causes of action within an action"].)

54
the expiration of the five-year period in February 2018, and Massey is inapposite to this

question.

In addition, even with respect to the class claims, it is undisputed that in light of

the trial court's dismissal of the case in December 2017, the court did not rule on the

Fistolera plaintiffs' motion for leave to amend to dismiss Aliabadi, Fistolera, and Palacios

as named plaintiffs and to add Eidson as a named plaintiff, which was scheduled for a

hearing in January 2018. If the trial court had granted this motion, then any subsequent

dismissal for failure to prosecute upon the expiration of the five-year period in February

2018 would have be entered against Eidson rather than against Aliabadi, Fistolera, and

Palacios. Accordingly, we may not affirm the judgment against Aliabadi, Fistolera, and

Palacios57 under Fidelity's theory that the trial court would have entered an identical

dismissal order in February 2018, since Aliabadi, Fistolera, and Palacios may well not

have been in the case at that point.

Accordingly, we conclude that we must reverse the dismissal of the Fistolera

Action.

5. The trial court properly dismissed the Kaplan Action

The Kaplan Plaintiffs claim that the trial court erred in dismissing the Kaplan

Action due to their failure to bring the action to trial within three years of the issuance of

the remittitur in the prior appeal (§ 583.320, subd. (a)(3)).

57 The record indicates that the judgment against Aliabadi, Fistolera, and Palacios
includes an award of $30,624.65 in costs in favor of Fidelity.

55
 The trial court determined that the three-year period for the Kaplan Plaintiffs to

bring the action to trial on remand (§ 583.320, subd. (a)(3)) ended on May 30, 2017.58

The Kaplan Plaintiffs contend that the trial court erred in failing to determine that the

three-year period (§ 583.320, subd. (a)(3)) had been extended for several additional

periods of time. First, the Kaplan Plaintiffs argue that the time to bring the Kaplan

Action to trial was extended from May 28, 2017 for an additional 135 days for the period

after the assignment of the coordination motion judge and prior to the granting of the

coordination motion. Thus, the Kaplan Plaintiffs contend that the three-year deadline

was extended to at least October 10, 2017.59 For the reasons stated in part III.B.4 in

connection with the Fistolera Action, ante, we agree.

However, since the trial court dismissed the Kaplan Action on December 15,

2017, in order for the Kaplan Plaintiffs to be entitled to reversal, they must establish that

they are entitled to additional tolling that would have extended the tolling deadline

58 Three-years after the April 15, 2014 remittitur was April 15, 2017. As explained
in part III.B.1.c, ante, the trial court determined that the Kaplan Plaintiffs were entitled to
45 days of tolling or until May 30, 2017. The 45-day tolling period consisted of 6 days
for a peremptory challenge and 39 days for the period after the coordination motion judge
granted the coordination petition until the assignment of a coordination judge. On
appeal, the Kaplan Plaintiffs acknowledge that the proper tolling periods for these events
are 5 days for the peremptory challenge and 38 days for the assignment of the
coordination trial judge. These two periods extended the time to bring the Kaplan Action
to trial for 43 days, or from April until May 28, 2017.

59 135 days after May 28, 2017 is October 9, 2017, which was a holiday. Thus,
according to the Kaplan Plaintiffs, "the three-year deadline was extended until October
10, 2017."

56
beyond October 10, 2017. The Kaplan Plaintiffs offer several arguments in support of

their claim for "further tolling." First, the Kaplan Plaintiffs contend that they are entitled

to tolling to February 16, 2018 because the trial court's budgetary constraints made it

impracticable to bring the action to trial earlier. The Kaplan Plaintiffs also argue that

they are entitled to tolling because they acted diligently at all times, and that Fidelity

frustrated and delayed the litigation and engaged in a misuse of the discovery process. In

addition, the Kaplan Plaintiffs contend that several "new causes of action," that were

added to the action after Kaplan I, are subject to the five-year period set forth in section

583.310 because these causes of action purportedly "do not relate back to the original

complaint." Finally, the Kaplan Plaintiffs maintain that Fidelity did not demonstrate that

it would suffer any prejudice if the action were allowed to proceed, and contend that if

this court were to affirm the dismissal, we would be "put[ting] form over substance,"

since another class member "would be entitled to re-file an identical class action . . . ."

We consider these arguments below, and conclude that none of them has merit.

Accordingly, we affirm the trial court's dismissal of the Kaplan Action because the

Kaplan Plaintiffs did not bring their action to trial by October 10, 2017.

a. The trial court did not abuse its discretion in implicitly determining that
the Kaplan Plaintiffs were not entitled to tolling of the three-year period
based on the trial court's budgetary constraints

The Kaplan Plaintiffs' primary argument for additional tolling beyond October 10,

2017 is that the "trial court's budgetary constraints made it impracticable to bring the

action to trial." (Boldface & capitalization omitted.)

57
 In considering this argument, we begin with the well-established principle that

" '[t]ime consumed by the delay caused by ordinary incidents of proceedings, like

disposition of demurrer, amendment of pleadings, and the normal time of waiting for a

place on the court's calendar are not within the contemplation of these exceptions [to the

mandatory period to bring an action to trial].' " (Bruns v. E-Commerce Exchange, Inc.

(2011) 51 Cal.4th 717, 731 (Bruns).) Thus, we must consider whether the Kaplan

Plaintiffs have established that they are entitled to reversal because the reasons for the

delay that they encountered in bringing the matter to trial were something other than the

" 'ordinary incidents of proceedings.' " (Ibid.) In their brief, the Kaplan Plaintiffs' make

two distinct arguments in support of their contention that they are entitled to tolling

because the court's budgetary constraints made it impracticable for them to bring the

matter to trial.

First, the Kaplan Plaintiffs argue that they are entitled to tolling for the period

after their August 15, 2017 request for a trial date. Specifically, they argue in relevant

part:

"Notably, Plaintiffs' request on August 15, 2017 came before the
respective five‐ and three‐year periods to bring the actions to trial
had expired. That the trial court could not set the actions for trial
until February 16, 2018 due to budget concerns is ample grounds for
the Court to find impracticability and to extend the applicable period
to bring the actions to trial." (Boldface & second italics omitted.)

We conclude that the trial court did not abuse it discretion in implicitly

determining that the Kaplan Plaintiffs were not entitled to tolling during this period. To

begin with, case law establishes that " ' "[w]here a plaintiff possesses the means to bring a

58
matter to trial before the expiration of the [mandatory dismissal] period by filing a motion

to specially set the matter for trial, plaintiff's failure to bring such motion will preclude a

later claim of impossibility or impracticability." [Citations.]' " (Sanchez v. City of Los

Angeles (2003) 109 Cal.App.4th 1262, 1273–1274 (Sanchez), italics added [concluding

that plaintiffs' acquiescence to trial court's selection of trial date and failure to bring a

motion to advance the date pursuant to former California Rule of Court, rule 375 (current

Cal. Rule of Court, rule 3.1335)60 precluded claim of impracticability]; see, e.g., Jordan,

supra, 182 Cal.App.4th at p. 1422 [rejecting claim that time to bring matter to trial was

tolled due to courtroom unavailability because plaintiffs failed to request "that the matter

be tried before . . . impending expiration of the [mandatory dismissal] period," and

plaintiffs "did not file a motion for a priority trial setting"]; De Santiago v. D & G

Plumbing, Inc. (2007) 155 Cal.App.4th 365, 374 [rejecting argument that time to bring

matter to trial was tolled based on court congestion and stating "[appellant] also had a

duty to take whatever other measures were available to attempt to accelerate trial of the

60 California Rules of Court, rule 3.1335 provides:
"(a) Noticed motion or application required
"A party seeking to advance, specially set, or reset a case for trial
must make this request by noticed motion or ex parte application
under the rules in chapter 4 of this division.
"(b) Grounds for motion or application
"The request may be granted only upon an affirmative showing by
the moving party of good cause based on a declaration served and
filed with the motion or application."

59
case before expiration of the [mandatory dismissal] period, including bringing a motion

to advance the trial . . . . pursuant to California Rules of Court, rule 3.1335"]; Wale v.

Rodriguez (1988) 206 Cal.App.3d 129, 133 ["[a]ppellant was not entitled to assume that a

motion to specially set would have been futile," and stating that "failure to so move was

fatal"].)

As noted in part III.B.1.b, ante, Fidelity moved to dismiss the Kaplan Action on

August 11, 2017, and three days later, the Kaplan Plaintiffs filed an ex parte application

to set the case for trial and to consolidate it with the Fistolera Action. However, despite

Fidelity's motion to dismiss, in their ex parte application, the Kaplan Plaintiffs expressed

little urgency about setting the matter for trial, stating only, "Plaintiffs request that the

Court set both cases for trial. Plaintiffs will be prepared to discuss scheduling issues and

a convenient trial date based on the Court's calendar with the Court at the ex parte

hearing." At the hearing, the trial court stated that it would set the matter for trial on

February 16, 2018, which is a date well beyond the three-year period. The Kaplan

Plaintiffs did not object to that date or request an earlier trial date. Nor did the Kaplan

Plaintiffs file a motion to advance the trial after the August 15 hearing. Under these

circumstances, we conclude that the mere fact that the Kaplan Plaintiffs requested a trial

date at a time before the three-year period expired does not establish that it was

impracticable for them to bring the matter to trial within the three-year period within the

meaning of section 583.340, subdivision (c). (See, e.g., Sanchez, supra, 109 Cal.App.4th

at pp. 1273–1274 [" ' "plaintiff's failure to [file a motion to advance the trial date] will

preclude a later claim of impossibility or impracticability" ' "].)

60
 In addition to contending that they were entitled to tolling for the period after their

August 14, 2017 ex parte application to set the cases for trial, the Kaplan Plaintiffs argue

that they were entitled to tolling for unspecified periods of time prior to this date.

Specifically, the Kaplan Plaintiffs contend that it "was impracticable, if not impossible,

for Plaintiffs to bring the Kaplan [A]ction to trial due to Fidelity's conduct in consistently

delaying the action and the trial court's refusal to rule on the motion for consolidation or

to set the trial date until after the pleadings had been set." (Italics omitted.) This

contention fails for two reasons. First, the trial court could reasonably have determined

that the " 'delay[s]' " to which the Kaplan Plaintiffs refer were delays caused by the

" 'ordinary incidents' " of litigation. (Bruns, supra, 51 Cal.4th at p. 731.) This is

particularly true since, on remand, the trial court sustained two of Fidelity's three

demurrers with leave to amend, and the trial court denied all of the Kaplan Plaintiffs'

requests for consolidation on remand. 61 The trial court could have reasonably

determined that meritorious filings cannot be considered to be improper litigation delay

tactics that served to toll the time within which to bring the matter to trial. In fact, to

conclude otherwise would constitute an abuse of discretion.

Second, the trial court's refusal to rule on the Kaplan Plaintiffs' requests to

consolidate the actions and to set a trial date until the pleadings were set does not

constitute evidence that budgetary constraints made it impracticable to bring the matter

61 Fidelity opposed the consolidation requests.

61
to trial. Rather, such rulings, when considered in light of the trial court's sustaining of

Fidelity's demurrers, constitute evidence that the Kaplan Plaintiffs' pleading deficiencies

delayed resolution of the case. The trial court did not abuse its discretion in determining

that the Kaplan Plaintiffs were not entitled to tolling for the time it took them to

sufficiently establish the operative complaint in the case.

Accordingly, we conclude that the trial court did not abuse its discretion in

implicitly determining that the Kaplan Plaintiffs were not entitled to tolling of the three-

year period until February 16, 2018 based on their contention that the trial court's

budgetary constraints made it impracticable to bring the action to trial earlier.

b. The trial court did not abuse its discretion in implicitly determining that
the Kaplan Plaintiffs were not entitled to tolling of the three-year period
due to their diligence in prosecuting the action and Fidelity's purported
attempts to delay the case

The Kaplan Plaintiffs contend that they "acted diligently at all times." (Boldface

& capitalization omitted.) However, we concluded in part III.B.1, ante, that the trial

court did not abuse its discretion in implicitly determining that the Kaplan Plaintiffs had

not acted diligently in failing to request that the case be specially set for trial before the

expiration of the three-year period. In any event, even assuming that the Kaplan

Plaintiffs had acted diligently throughout the litigation, "[a] plaintiff's reasonable

diligence alone does not preclude involuntary dismissal; it is simply one factor for

assessing the existing exceptions of impossibility, impracticability, or futility." (Bruns,

supra, 51 Cal.4th at p. 731.)

62
 Further, while the Kaplan Plaintiffs assert that Fidelity "attempted to frustrate and

delay" their efforts to "coordinate and consolidate the two actions and bring them jointly

to trial," the record supports the trial court's implicit determination that Fidelity's filings

did not unreasonably delay the Kaplan Plaintiffs' efforts to litigate the case. In addition,

although the Kaplan Plaintiffs argue that Fidelity's "strategy of delay paid off when, on

the eve of trial, all three named Plaintiffs in the Fistolera [A]ction were required to

withdraw," (italics omitted) the Kaplan Plaintiffs fail to establish that any of the

withdrawal requests were attributable to Fidelity's litigation practices. 62 Even more

fundamentally, the fact that the named plaintiffs in the Fistolera Action no longer wished

to remain in the case does not demonstrate that the Kaplan Action was timely prosecuted,

even assuming that the withdrawals might have had some impact on the progress of the

Kaplan Action.

The Kaplan Plaintiffs also argue that they were entitled to tolling of the three-year

period for some unspecified period due to Fidelity's "[r]epeated [m]isuse," (boldface

omitted) of the discovery process.63 In support of this contention, the Kaplan Plaintiffs

62 The Kaplan Plaintiffs acknowledge in their brief that the reasons given for the
withdrawal requests appear to be largely personal in nature (Aliabadi became "busy,"
Fistolera had health problems, and Palacios "was no longer interested in serving as a class
representative").

63 The Kaplan Plaintiffs do not articulate a specific number of days that they contend
the three-year period should have been tolled due to Fidelity's discovery abuses. Instead,
they argue that the abuses are "sufficient to find that it was impracticable for the Kaplan
Plaintiffs to bring the action to trial by October 10, 2017." (Italics omitted.)

63
note that discovery in the two actions was coordinated and that the trial court granted two

motions to compel filed by the Fistolera Plaintiffs.

"Generally, delays encountered in discovery are part of the 'normal delays

involved in prosecuting lawsuits' and do not excuse failure to bring a case to trial . . . ."

(Bank of America, supra, 200 Cal.App.3d at p. 1016; see also Martinez v. Landry's

Restaurants, Inc. (2018) 26 Cal.App.5th 783, 796 [concluding that trial court did not

abuse its discretion in rejecting argument that it was "impracticable for [plaintiffs] to

move for class certification and bring their action to trial for the nine months between

September 28, 2015, when the court granted in part their motion to compel, and the end

of June 2016 when production of the electronically stored information was completed"];

Gentry v. Nielsen (1981) 123 Cal.App.3d 27, 35 [rejecting plaintiffs' "claim that failure to

bring the case to trial within the statutory period was impracticable as a result of

[defendant's] failure to appear at numerous times scheduled for the taking of his

deposition" because plaintiffs "made no showing that the delays . . . created a futility in

proceeding to trial within the five-year period"].) The Kaplan Plaintiffs have not

demonstrated that the trial court abused its broad discretion in this context in implicitly

concluding that the time to bring the Kaplan Action to trial was not tolled due to

Fidelity's discovery practices.

c. The Kaplan Plaintiffs have not established that any of their causes of
action are subject to the five-year statute, and not the three-year statute

The Kaplan plaintiffs contend that the five-year statute (§ 583.310) within which

an action must be brought to trial applies to several causes of action brought for the first

64
time in their corrected fourth amended complaint, rather than the three-year statute that

(§ 583.320, subd. (a)(3)) the trial court applied, which applies after a new trial has been

ordered.64 Citing Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 149 and

Brumley, supra, 156 Cal.App.4th 312, the Kaplan Plaintiffs argue that they "could have

asserted th[e]se [new] claims in a new action," and maintain that had "they . . . done that,

these claims would have been subject to the five-year period set forth in [s]ection

583.310, [and] not the three-year period set forth in [section] 583.320." (Italics omitted.)

We are not persuaded.

"It has . . . been held that the filing of an amended complaint does not prolong the

time within which the action may be brought to trial," rather than being subject to

dismissal. (Anderson v. San Diego (1953) 118 Cal.App.2d 726, 731.) In Brumley, the

Court of Appeal recognized an exception to this rule when the new claims do not relate

back to the original claims. (Brumley, supra, 156 Cal.App.4th at p. 325.) In that

circumstance, the new causes of action need not be prosecuted within the time to bring

the original causes of action to trial. (Ibid.)

64 The Kaplan Plaintiffs did not raise this claim in the trial court in opposing
Fidelity's motion to dismiss, but instead, affirmatively argued that the three-year statute
applied to all of its claims. In their reply brief in this court, the Kaplan Plaintiffs contend
that we may consider their claim even though they did not raise it in the trial court
because the claim presents "a legal question premised on undisputed facts." We assume
for purposes of this decision that we may consider this claim notwithstanding any
potential forfeiture or preclusion based on principles of estoppel.

65
 In this case, the Kaplan Plaintiffs assert that the "newly-added claims do not relate

back to the original complaint." However, the Kaplan Plaintiffs fail to discuss the law

governing relation back or to apply this law to the complaints at issue. 65 Under these

circumstances, we conclude that the Kaplan Plaintiffs clearly have not demonstrated that

the causes of action alleged for the first time in the corrected fourth amended complaint

do not relate back to the original complaint. (See e.g., Multani v. Witkin & Neal (2013)

215 Cal.App.4th 1428, 1457 ["To demonstrate error, appellant must present meaningful

legal analysis supported by citations to authority and citations to facts in the record that

support the claim of error"].) Accordingly, we further conclude that the Kaplan Plaintiffs

have not established that any of their causes of action are subject to the five-year statute

(§ 583.310).

d. The Kaplan Plaintiffs' arguments pertaining to the lack of prejudice
to Fidelity and the possibility of another class member filing a new
action do not support reversal

The Kaplan Plaintiffs argue that "[t]here has not been any showing of prejudice to

Fidelity" if the Kaplan Action were to proceed. However, the Kaplan Plaintiffs cite no

cases, and we are aware of none, that support the notion a defendant must make a

showing of prejudice to obtain a mandatory dismissal for failure to timely prosecute an

65 The Brumley court explained that "[a] new cause of action in an amended
complaint is held to relate back to the earlier pleaded claims if the later cause of action
'(1) rest[s] on the same general set of facts, (2) involve[s] the same injury, and (3) refer[s]
to the same instrumentality, as the original one.' " (Brumley, supra, 156 Cal.App.4th at p.
323, italics altered.) The Kaplan Plaintiffs offer no analysis as to how these factors apply
in this case.

66
action. No such requirement exists in the text of the statute, which expressly prohibits

the creation of exceptions thereto. (See also § 583.360, subd. (b) ["The requirements of

this article are mandatory and are not subject to extension, excuse, or exception except as

expressly provided by statute"].) Indeed, even as to discretionary dismissal, "[a]

defendant is not required to support a motion to dismiss under the statute with an

affirmative showing of prejudice. Prejudice from unreasonable delay is presumed."

(Knight v. Pacific Gas & Electric Co. (1960) 178 Cal.App.2d 923, 929–930.) It would

seem to necessarily follow that the same would hold true for mandatory dismissal.

Finally, the Kaplan Plaintiffs argue that this court should not affirm the dismissal

of the Kaplan Action because "[i]f the dismissals are affirmed on appeal, any absent class

member would be entitled to re-file an identical class action against Fidelity by taking

advantage of the tolling of the statute of limitations during the pendency of the class

action." We reject this argument because the prospect of the filing of a hypothetical

action in the future has no relevance in determining whether the present action was timely

prosecuted.66

Accordingly, we conclude that the trial court properly dismissed the Kaplan

Action.

66 We express no opinion with respect to the effect, if any, the present litigation
might have on the application of the statute of limitations on a hypothetical future
"identical class action."
67
 IV.

DISPOSITION

The March 7, 2018 judgment in the Fistolera Action is reversed. The April 2,

2018 judgment in the Kaplan Action is affirmed. Each party is to bear its own costs on

appeal.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

68