Villegas v. Six Flags Entertainment CA2/4

Filed 6/29/21 Villegas v. Six Flags Entertainment CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ANDREW VILLEGAS et al., B295352

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC505344)
v.

SIX FLAGS ENTERTAINMENT
CORPORATION,

Defendant and Respondent.

APPEAL from judgment of the Superior Court of Los
Angeles County, Ann I. Jones, Judge. Affirmed.
Matern Law Group, Matthew J. Matern, Scott A. Brooks,
Tagore O. Subramaniam; Altshuler Berzon, Michael Rubin and
James M. Finberg for Plaintiffs and Appellants.
Sheppard, Mullin, Richter & Hampton, Jason W.
Kearnaghan, Robert E. Mussig and Matthew G. Halgren for
Defendant and Respondent.
 INTRODUCTION

This is an appeal from a judgment dismissing plaintiffs’
putative class action for failure to bring it to trial within five
years, as required by Code of Civil Procedure section 583.310.1
Plaintiffs contend the trial court erred by failing to exclude
certain time periods from the five-year calculation during which,
according to plaintiffs, the case was either stayed and/or it was
impossible or impracticable to bring the case to trial. Plaintiffs
also contend the court erred by denying their motion for class
certification.
We conclude the court properly dismissed the action
pursuant to section 583.310. Because this conclusion is case
dispositive, we need not address whether the court erred by
denying class certification. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs and appellants Andrew Villegas, Jennifer
Gilmore, Dustin Liggett, and Hans Gundelfinger (collectively,
plaintiffs) worked for defendant and respondent Magic Mountain,
LLC, erroneously sued as Six Flags Entertainment Corporation
(Magic Mountain). On April 9, 2013, plaintiffs filed their
complaint, as individuals and on behalf of all others similarly
situated, against Magic Mountain asserting claims for: (1) failure
to provide meal periods; (2) failure to provide rest periods; (3)
failure to pay overtime wages; (4) failure to pay minimum wage;
(5) waiting time penalties; (6) record keeping violations; (7) wage
statement penalties; (8) suitable seating; (9) unfair business
practices; and (10) penalties under the Private Attorneys General
Act (PAGA).

1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
 On June 11, 2013, the court issued its Initial Status
Conference Order. The order required the parties to meet and
confer to discuss the central legal and factual issues in the case,
negotiate a case management plan, and submit a joint initial
status conference class action response statement before the
initial status conference. The order stayed the proceedings in
their entirety, and precluded Magic Mountain defendants from
filing responsive pleadings until the initial status conference,
scheduled for August 23, 2013. The parties were permitted,
however, to informally exchange documents to facilitate their
initial evaluation of the case. The parties attended the initial
status conference on August 23, 2013.
On October 2, 2013, plaintiffs propounded initial written
discovery, initiating a lengthy and extensive discovery process,
including motion practice. Plaintiffs deposed six “persons most
knowledgeable” between 2014 and 2016. Belaire-West2 notices
were sent to maintenance department employees on or about
January 21, 2015, and to a 20 percent sampling of seasonal
employees on or about April 25, 2016. Also, in 2016, Magic
Mountain produced a sampling of time card records and payroll
data.
On November 1, 2016, plaintiffs filed their motion for class
certification on behalf of a proposed class of over 21,000 current
and former seasonal employees and over 167 current and former
maintenance employees.3 The court set a briefing schedule for the
opposition and reply, with a hearing date of April 25, 2017.

2 Belaire-West Landscape, Inc. v. Superior Court (2007) 149
Cal.App.4th 554. In wage and hour class actions, a Belaire-West
notice is sent to putative class members to inform them that their
contact information will be disclosed unless they timely object to
such disclosure in writing. (Id. at pp. 561-562.)

3 The court originally set an earlier deadline for plaintiffs to
move for class certification, but plaintiffs requested to continue
that deadline. Magic Mountain agreed to stipulate to the
3
 On December 29, 2016, plaintiffs moved for leave to amend
their class certification motion. At the hearing on the motion, the
court warned plaintiffs about the five-year rule: “I am very
concerned about the clock running on this case. And fairly, it’s
not three and a half years. It’s three years and ten months. And
as it is, we will get this certification hearing in right at about the
four-year birthday. And you will have a single year in which for
you to obtain all the remaining expert discovery.” Plaintiffs’
counsel responded that plaintiffs understood “that concern” and
they “are mindful of the time” it takes to prepare for trial, but
“very frequently, cases that are certified reach a settlement that
is beneficial.” The court denied plaintiffs’ motion to amend their
certification motion because it violated the parties’ earlier
stipulation. It did, however, extend the briefing schedule for the
class certification motion. Based on the court-ordered schedule,
Magic Mountain filed its opposition to the class certification
motion on March 28, 2017.
After Magic Mountain filed its opposition, plaintiffs sought
additional time to take depositions and obtained an extension of
their deadline to file their reply from May 27, 2017 to August 31,
2017. When plaintiffs sought an additional extension at an
August 4, 2017 hearing, the court again warned plaintiffs about
the five-year rule: “[Y]ou’re going to lose your case to the five-year
rule while you try to perfect your class. Do I find it impossible to
go to trial? No, I don’t. [¶] So let’s not borrow [sic] my stepping in
to save you. I’m trying very hard not to have to save you by giving
you a hearing date sometime in this lifetime.” The court granted
plaintiffs the extension they sought and the discovery of
additional electronic records, but denied their request for paper

extension, on the condition that “Plaintiffs’ motion for class
certification will include all causes of action and legal and/or
factual theories upon which Plaintiffs will seek certification in
this action, and Plaintiffs agree they will not seek certification on
any basis that is not set forth in the motion at a later date.”
4
records because producing those records would have caused
further delay.4
On October 4, 2017, the court heard the class certification
motion. The court denied certification on the majority of
plaintiffs’ claims. It gave plaintiffs the opportunity, however, to
submit a trial plan demonstrating manageability as to three of
the proposed subclasses.
On January 24, 2018, the court considered plaintiffs’
proposed trial plan. In response to plaintiffs’ request for more
briefing on class certification, the court responded: “[A]t some
point, my goodness, we need to decide this. We need to call this.
Honestly, this case was filed in April of 2013. . . . So in April
[2018] this case dies. And you want additional briefing on
certification?” On January 25, 2018, the court ultimately denied
plaintiffs’ motion for class certification in its entirety.
On March 23, 2018, plaintiffs filed a notice of appeal from
the order denying class certification, purporting to appeal under
the “death knell” doctrine.5 On May 17, 2018, 55 days after
plaintiffs filed the appeal, a different panel of this court
dismissed the appeal on the ground the appeal was taken from a
non-appealable order (because the death knell doctrine does not

4 The court noted: “These fights should have happened in
2014. They really should have. They didn’t. I [don’t] know why
they didn’t. I wasn’t here. But they’re happening in 2017 and
that’s a huge problem.”

5 Under California law, “an order denying a motion to certify
all class claims leaving only the named plaintiff’s individual
claims in the trial court is an appealable order under the ‘“death
knell”’ doctrine. [Citations.]” (Munoz v. Chipotle Mexican Grill,
Inc. (2015) 238 Cal.App.4th 291, 308 (Munoz).) “The rationale of
permitting appeal of what would otherwise be an intermediate
order is that absent immediate review, the plaintiff would have
no financial incentive to pursue his or her case to final judgment
just to preserve the ability to appeal the denial of the plaintiff’s
class certification motion. [Citation.]” (Ibid.)
5
apply where PAGA claims remain in the trial court), and denied
plaintiffs’ request to treat their appeal as a writ petition. A little
over a month later, on June 26, 2018, plaintiffs requested the
trial court advance the date of the August 13, 2018 status
conference in light of the dismissal of their appeal. The trial court
responded that the parties could confer to find a new date. This
court issued a remittitur on July 19, 2018.
On August 6, 2018, the trial court issued an order
requesting supplemental briefing on the parties’ PAGA discovery
dispute. The trial court continued the August 13, 2018 status
conference to September 26, 2018 so it could consider the
supplemental briefing. The order stated: “The matter is stayed
during the pendency of this supplemental briefing.”
On September 4, 2018, Magic Mountain moved to strike
plaintiffs’ PAGA claims. The parties later stipulated to a
continuance of the September 26, 2018 hearing to October 4,
2018. On September 28, 2018, Judge Lisa Hart Cole (who filled in
for Judge Jones while she sat pro tem at the Court of Appeal
until her return on November 9, 2018), issued a minute order
interpreting Judge Jones’s August 6, 2018 order: “This matter is
stayed until the Plaintiffs Request for Production (Set Four) and
Special Interrogatories (Set Two), AND Defendants’ Motion to
Strike and/or Dismiss Plaintiffs’ Representative allegations have
been heard and ruled upon by the court. The stay is continuous
from 8/6/18 and for all purposes, but for briefing and hearing on
the Plaintiffs’ discovery motions and Defendants’ motion to
strike. This clarifying order is nunc pro tunc to 8/6/18.”
On October 2, 2018, Judge Cole set a hearing on plaintiffs’
PAGA discovery motions and Magic Mountain’s motion to strike
for November 9, 2018. At the November 9, 2018 hearing, the
parties again discussed the five-year issue. Plaintiffs’ counsel
expressed a belief that the five years would run on November 16,
2018, so Judge Jones set trial on the PAGA claims for that date.
But the court remained uncertain regarding the five-year

6
calculation, and thus requested briefing on the issue. Specifically,
the court stated it required further discussion on whether the
case had been stayed during the pendency of the appeal: “And I
have grave concern that when people assert the death knell rule,
with the full intention of proceeding with remaining claims in a
trial court, that it’s an improvident use of the death knell rule.
The notice of appeal is not a notice of appeal. It is, in fact, a writ.
And that period should not be excluded from the five-year rule,
and that needs to be discussed as well.”
On November 13, 2018, plaintiffs filed an ex parte
application for an order determining the date by which the case
must be brought to trial. The same day, Magic Mountain filed a
motion in limine to dismiss the case for failure to bring it to trial
within five years.
On November 14, 2018, the court granted plaintiffs’ ex
parte application. It held that, with the exception of the initial
stay from April 9, 2013 until August 23, 2013, no other time
periods were excludable from the five-year calculation. It
reasoned that the action was not stayed during the pendency of
plaintiffs’ appeal because an appeal from a non-appealable order
does not automatically stay the trial court proceedings, and there
were no other time periods when it was impossible or
impracticable to bring the action to trial. It therefore concluded
the five-year clock expired on August 23, 2018. Because the case
was not brought to trial before that date, “[n]or did plaintiffs
request that a trial be set before that date,” the court entered
judgment in favor of Magic Mountain on November 16, 2018.
Plaintiffs timely appealed.

DISCUSSION

I. The Dismissal Under Section 583.310

Plaintiffs contend the trial court erred by dismissing their
action for failure to bring it to trial within five years. They argue

7
the trial court should have excluded from the five-year period: (i)
the 118 days during which their appeal was pending because the
appeal effected an automatic stay and, alternatively, prosecution
of the case was impossible or impracticable during that period;
and/or (ii) the 176 days from May 17, 2018 to November 9, 2018
when Judge Jones was sitting pro tem at the Court of Appeal,
various stays were purportedly in place, and it was impossible or
impracticable to bring the action to trial. For the reasons
discussed below, we disagree.

A. Legal Principles and Standard of Review

Section 583.310 requires that “[a]n action shall be brought
to trial within five years after the action is commenced against
the defendant.” “This requirement is mandatory and not subject
to extension, excuse or exception except as expressly provided by
statute. [Citation.]” (Rel v. Pacific Bell Mobile Services (2019) 33
Cal.App.5th 882, 889 (Rel); see also § 583.360, subd. (b).) “‘Thus,
unless some specified exception applies, a trial court has a
mandatory duty to dismiss an action and a defendant has an
absolute right to obtain an order of dismissal, once five years has
elapsed from the date the action was commenced.’ [Citation.]”
(Cole v. Hammond (2019) 37 Cal.App.5th 912, 921.) The three
statutory exceptions that toll the five-year limit are periods
when: “(a) [t]he jurisdiction of the court to try the action was
suspended[;] [¶] (b) [p]rosecution or trial of the action was stayed
or enjoined[;][and] [¶] (c) [b]ringing the action to trial, for any
other reason, was impossible, impracticable, or futile.” (§ 583.340,
subds. (a)-(c).)
“‘The purpose of the five-year dismissal statute is to
prevent the prosecution of stale claims where defendants could be
prejudiced by loss of evidence and diminished memories of
witnesses. [Citation.] The statute also protects defendants from
the annoyance of having unmeritorious claims against them

8
unresolved for unreasonable periods of time.’ [Citation.]” (Rel,
supra, 33 Cal.App.5th at pp. 888-889.)
We review the legal question of whether plaintiffs’ appeal
automatically stayed proceedings in the trial court de novo. (See,
e.g., Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th
1081, 1092 (Gaines).) The trial court’s determination not to
exclude periods during which plaintiffs contend it was impossible,
impracticable or futile to bring the action to trial within the
meaning of section 583.340, subdivision (c), however, is reviewed
for an abuse of discretion. (Martinez v. Landry’s Restaurants, Inc.
(2018) 26 Cal.App.5th 783, 794.)

B. Plaintiffs’ Defective Appeal Did Not Automatically
Stay the Action

As discussed above, on March 23, 2018, plaintiffs filed a
notice of appeal of the trial court’s order denying class
certification, purportedly relying on the “death knell” doctrine. A
different panel of this court dismissed plaintiffs’ appeal on May
17, 2018 (55 days later), concluding the death knell doctrine did
not apply where, as here, plaintiffs’ representative PAGA claims
remained in the trial court. This court issued a remittitur on July
19, 2018 (118 days after plaintiffs’ notice of appeal). Plaintiffs
contend during that 118-day period, all trial court proceedings
were stayed as a matter of law. We disagree.
Section 916, subdivision (a) provides that “the perfecting of
an appeal stays proceedings in the trial court upon the judgment
or order appealed from or upon the matters embraced therein or
affected thereby, including enforcement of the judgment or order,
but the trial court may proceed upon any other matter embraced
in the action not affected by the judgment or order.” The
automatic stay, however, arises only “upon a ‘duly perfected’
appeal. [Citations.]” (Hearn Pacific Corp. v. Second Generation
Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 (Hearn Pacific).) It

9
therefore follows that an “invalid” appeal does “not affect the trial
court’s jurisdiction to proceed. [Citations.]” (Id. at pp. 146-147;
see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62
Cal.App.4th 658, 666 (Pazderka) [If an “order is nonappealable,
the appeal was never perfected and the trial court retained
jurisdiction . . . .”].)
Here, plaintiffs’ appeal was invalid because the death knell
doctrine does not apply when, as here, representative claims
under PAGA are being pursued in the trial court. (Munoz, supra,
238 Cal.App.4th at p. 311 [“Given the potential for recovery of
significant civil penalties if the PAGA claims are successful, as
well as attorney fees and costs, plaintiffs have ample financial
incentive to pursue the remaining representative claims under
the PAGA and, thereafter, pursue their appeal from the trial
court's order denying class certification. Denial of class
certification where the PAGA claims remain in the trial court
would not have the ‘legal effect’ of a final judgment . . . .”].)
Plaintiffs’ appeal, therefore, was from an interlocutory,
nonappealable order.
Plaintiffs’ attempt to distinguish Hearn Pacific and
Pazderka is unavailing. In their reply brief, plaintiffs argue their
appeal was not invalid on its face like the appeals in Hearn
Pacific (untimely appeal) and Pazderka (judgment pursuant to
section 998 nonappealable), but rather was dependent on
resolution of disputed facts. It follows, according to plaintiffs,
that the appeal was “duly perfected.” For this point, plaintiffs
rely solely on Hopkins & Carley v. Gens (2011) 200 Cal.App.4th
1401 (Hopkins). In Hopkins, the Court of Appeal recognized a
“sizable body of precedent holds that an appeal from a
nonappealable order will not divest the trial court of jurisdiction.
[Citations.]” (Hopkins, supra, 200 Cal.App.4th at p. 1409, fn.4.) It
went on to state: “We question whether the same rule [that an
appeal from a nonappealable order will not divest the trial court
of jurisdiction] can or should apply where, as here, the lateness of

10
the appeal depends on facts that are at least theoretically
disputable, such as recitals in a declaration of service. Arguably
the appellate court acquires exclusive jurisdiction in such a case
to determine whether the appeal is in fact untimely, and until it
has made that determination the trial court is without power in
the matter.” (Ibid.)
Hopkins questioned, but did not answer, whether the Court
of Appeal acquires exclusive jurisdiction over an action when the
validity of the appeal depends on disputed facts. Even assuming
the answer should be “yes,” however, the facts here are not
disputable. It is undisputed that a representative PAGA action
remained in the trial court on behalf of thousands of employees.
It is also undisputed that “[g]enerally speaking, the civil
penalties available under the PAGA are $100 ‘for each aggrieved
employee per pay period for the initial violation and [$200] for
each aggrieved employee per pay period for each
subsequent violation.’ (Lab. Code, § 2699, subd. (f)(2).)” (Munoz,
supra, 238 Cal.App.4th at pp. 310-311.) Thus, based on the
undisputed facts, plaintiffs’ recovery “could be quite substantial,”
precluding application of the death knell doctrine. (Id. at p. 311.)
Alternatively, plaintiffs contend even if the action was not
automatically stayed under section 916, subdivision (a), it was
impossible or impracticable (§ 583.340, subd. (c)) for them to
move their case toward trial while their appeal was pending. The
crux of their argument is because the trial court supposedly
“believed and acted as if a stay were in effect,” it was impossible
to move their case toward trial during this period. Again, we
disagree.
“The burden is on plaintiff to first establish in the trial
court, by clear and convincing proof, the existence of either
impossibility, impracticability, or futility of bringing the matter
to trial within five years.” (Hoffman v. Cal. (1985) 171 Cal.App.3d
1100, 1108.) “To avoid dismissal under the section 583.340,
subdivision (c) exception, a plaintiff must prove (1) a

11
circumstance establishing impossibility, impracticability, or
futility, (2) a causal connection between the circumstance and the
failure to move the case to trial within the five-year period, and
(3) that she was reasonably diligent in prosecuting her case at all
stages in the proceedings. [Citations.]” (Tanguilig v. Neiman
Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 323 (Tanguilig).)
The trial court admittedly was uncertain whether it had
jurisdiction while plaintiffs’ appeal was pending. At the April 6,
2018 status conference, the court stated: “I think I’m deprived of
jurisdiction. I mean, it’s weird. Because by filing a notice of
appeal, even though they’re going to now re-denominate it as a
writ and I wouldn’t have lost jurisdiction – by denominating it an
appeal, I think I’ve lost jurisdiction. I could be wrong about that.”
Plaintiffs’ counsel responded that it was his “understanding [ ]
that it actually doesn’t deprive the trial court of jurisdiction
because there’s not an automatic stay. So the trial court would
have to impose a stay, which I believe it has the discretion to do.”
Plaintiffs’ counsel then asked that the court impose a stay on all
the proceedings out of “an abundance of caution.” The court
responded: “I don’t have jurisdiction. I can’t do nothing [sic].
That’s [the] funny thing. I’ve got no power. That’s the weird land
I’m in. If I don’t have any jurisdiction, I can’t do anything. You
could ask the Court of Appeal, who has all the jurisdiction in the
world right now, because [a] Notice of Appeal has been filed, to,
in an abundance of caution, stay the proceeding in the trial
court.”
Contrary to plaintiffs’ contentions, however, the court never
made an express finding of impossibility or impracticability.
Instead, the court concluded: “There’s an outstanding question in
my mind as to whether the clock is running as we speak . . . So
what I propose we do is we continue the status conference until
August the 13th. And while I’m not entirely clear, if I need to, on
August the 13th, if we still haven’t heard from the Court of
Appeal, I will make a find[ing] that it is impossible or

12
impracticable to bring the case to trial within the five-year
period, pending a determination by the Court of Appeal that this
is in fact a class action.”6
In any event, even if plaintiffs could establish impossibility
during the pendency of their appeal, they failed to demonstrate
they were reasonably diligent in prosecuting the case at all stages
of the proceedings. (Tanguilig, supra, 22 Cal.App.5th at p. 323.)
Plaintiffs claim “there is no dispute about plaintiffs’ diligence”
and therefore, failed to address this “critical factor” in their
opening brief. (Gaines, supra, 62 Cal.4th at p. 1100.) But the trial
court expressly found plaintiffs did not meet their burden to
demonstrate reasonable diligence: “There were a variety of
avenues that the plaintiffs could have pursued to efficiently
complete this case within the statutory period, including
investigating and developing an efficient litigation strategy in
light of the real world constraints presented by the employer’s
business records. Further, over the course of this litigation,
months have elapsed without any significant activity by

6 Even if we agreed with plaintiffs that it was impossible or
impracticable to move their case to trial while the court believed
it lacked jurisdiction, the trial court certainly knew it had
jurisdiction when the appeal was dismissed – only 55 days after
the notice of appeal was filed. In their ex parte papers submitted
in the trial court, plaintiffs apparently acknowledge this point by
urging the trial court to exclude the 55 days from March 23, 2018
(date of their notice of appeal) through May 17, 2018 (date their
appeal was dismissed). Although remittitur was not issued until
118 days after the notice of appeal, that fact has no bearing on
the trial court’s belief regarding whether it had jurisdiction
during the pendency of the appeal. The trial court was never, in
fact, divested of jurisdiction. (Pazderka, supra, 62 Cal.App.4th at
p. 666 [If an “order is nonappealable, the appeal was never
perfected and the trial court retained jurisdiction . . . .”].)
Plaintiffs concede, however, that exclusion of an additional 55
days from the five-year calculation is insufficient to satisfy the
five-year rule.
13
[p]laintiffs. Despite receiving proposed class member contact
information over two years ago, deposing the PMKs and receiving
an agreed-upon sampling of employee pay and time records,
plaintiffs fail to explain why they were unable to bring their
PAGA and individual labor law claims to trial by now. These
facts demonstrate plaintiffs’ lack of reasonable diligence in
prosecuting their case.” We discern no abuse of discretion. (See,
e.g., Warner Bros. Entertainment Inc. v. Superior Court (2018) 29
Cal.App.5th 243, 268 [“[W]e cannot imply a trial court finding of
reasonable diligence when the trial court expressly found to the
contrary[ ]”]; see also Bruns v. E-Commerce Exchange, Inc. (2011)
51 Cal.4th 717, 731 (Bruns) [noting the question of impossibility
and impracticability is “best resolved by the trial court, which ‘is
in the most advantageous position to evaluate these diverse
factual matters in the first instance.’ [Citation.]”].)
Accordingly, we conclude the trial court did not err by
refusing to exclude the time period during which plaintiffs’
appeal from a nonappealable order was pending.

C. The Trial Court Did Not Abuse Its Discretion By
Declining to Exclude Various Time Periods
Following the Conclusion of Plaintiffs’ Defective
Appeal

Alternatively, plaintiffs contend the five-year period was
tolled for several overlapping date ranges from the date of the
dismissal of their appeal (May 17, 2018) to the date of the
dismissal of their case (November 16, 2018). We frankly find it
difficult to ascertain from plaintiffs’ briefs each precise time
period for which plaintiffs seek tolling, and their purported
justification for excluding each time period. At oral argument,
however, plaintiffs’ counsel clarified that plaintiffs contend the
following two time periods should have been excluded from the
five-year calculation: (1) the 122 days between the April 6, 2018

14
status conference and the August 6, 2018 status conference; and
(2) the 95 days between the August 6, 2018 status conference and
November 9, 2018. Plaintiffs claim the case was either stayed
during portions of these periods and/or it was impossible or
impracticable for plaintiffs to prosecute the case. We conclude
plaintiffs forfeited their argument with respect to tolling either of
these specific time periods by failing to identify them in the trial
court, and even assuming their argument has not been forfeited,
the trial court did not err by declining to exclude any time period
after plaintiffs’ appeal was dismissed.
We first address forfeiture. Plaintiffs argued below that the
entire period between the January 24, 2018 class certification
hearing (when the court purportedly stated that discovery had
been exceptionally difficult, and that fact “was sufficient to
support a finding of impracticability/impossibility”)7 to March
2019 (the next available trial date at the time of the January 24,
2018 hearing) should be excluded from the five-year calculation.
Plaintiffs did not, however, identify either of the specific time
periods listed above for which they now seek tolling on appeal.
We therefore conclude plaintiffs’ claim to these additional tolling
periods has been forfeited. (See, e.g., Baugh v. Garl (2006) 137
Cal.App.4th 737, 746 [“Points not raised in the trial court may
not be raised for the first time on appeal.”]; see also Tanguilig,

7 The record indicates the court did not make an express
finding of impossibility or impracticability at the January 24,
2018 class certification hearing. The trial court initially stated:
“. . . I’ll set this for a hearing on whether or not it was impossible
or impractical to bring this case to trial and try to come up with
some plan if the defendants won’t stipulate to have some further
plan.” The court went on to state, after noting “[i]t was an
incredibly difficult case for the basic fundamental practices to
actually be able to be discovered,” that “[i]f I had to make a
finding [of impossibility or impracticability], it probably wouldn’t
be too hard for me to make one. . . . [¶] So that’s what we need to
discuss.” The court then set a status conference for April 6, 2018.
15
supra, 22 Cal.App.5th at p. 330 [holding a plaintiff challenging
dismissal under the five-year rule cannot raise a new tolling
period on appeal].)
Nonetheless, we reject plaintiffs’ argument on the merits.
First, plaintiffs failed to demonstrate a complete stay of
proceedings during either of the purported tolling periods listed
above. (See Bruns, supra, 51 Cal.4th at p. 730 [“. . . subdivision
(b) of section 583.340 governs only complete stays that are ‘used
to stop the prosecution of the action altogether.’
[Citation.]”].) Contrary to plaintiffs’ contention, the trial court did
not order a complete stay on August 6, 2018. Rather, the court
entered a partial stay to allow the parties to provide
supplemental briefing on plaintiffs’ discovery motions. The
court’s August 6, 2018 order provided dates for supplemental
briefing (plaintiffs’ brief due on August 21, 2018 and Magic
Mountain’s brief due on September 4, 2018). The order further
stated: “The matter is stayed during the pendency of this
supplemental briefing.” Partial stays that permit proceedings
related to discovery to continue do not “stop the prosecution of
the action altogether,” and thus do not constitute a stay for
purposes of section 583.340, subdivision (b). (Gaines, supra, 62
Cal.4th at p. 1094.) As the trial court stated, “plaintiffs were free
during this period to conduct any other aspect of their case,
including working with expert witnesses on a trial plan necessary
to establish the manageability of their PAGA representative
action.”
In support of their argument that Judge Jones’s August 6,
2018 order constituted a complete stay of the proceedings,
plaintiffs rely on an order issued by Judge Cole on September 28,
2018. As noted above, in response to plaintiffs’ request for
clarification of the stay issued on August 6, 2018, Judge Cole
issued a minute order nunc pro tunc stating in part: “The stay is
continuous from [August 6, 2018] and for all purposes, but for
briefing and hearing on the [p]laintiffs’ discovery motions and

16
[d]efendants’ motion to strike.” Thus, like the August 6 order, the
September 28 order still allowed for the case to progress. (See
Gaines, supra, 62 Cal.4th at p. 1094 [“the label used in the trial
court’s order is not dispositive. [Citation.]”].) We conclude the
August 6 order did not constitute a stay of the prosecution of the
action within the meaning of section 583.340, subdivision (b).
Second, plaintiffs contend that even if a complete stay was
not in effect, the court “found” it was “impossible and
impracticable” to move the case forward from May 17, 2018 to “a
couple weeks” after November 9, 2018. Based on those purported
findings, plaintiffs argue it was “an abuse of discretion for the
trial court not to have excluded those prior time periods[.]” We
are unpersuaded.
Plaintiffs rely on the following excerpt from the transcript
of the November 9, 2018 hearing: “So from May 17th, 2018 – until
– and I’m going to make it – we’ll agree on a date about a couple
of weeks from now – I will find that during this period of time, it
would have been impossible and impracticable. And, therefore,
I’m staying it.” But the following sentence states: “This is what I
want you to brief, and this is what I want a hearing on.” As the
court further discussed the five-year rule issue with counsel, the
court stated: “I’m not going to start a trial that can’t be tried. It’s
going to be – but I have to conclude that it was impossible or
impracticable. [¶] And, as I sit here today, I’m not persuaded of
that. That’s what I’m sharing with you.” Ultimately, the court
ruled it was not making any findings because it needed briefing:
“As of today, at a minimum – let me make this really clear – the
case is active. We’re having motions. [¶] Both parties are free to
argue whatever they’d like to argue, with regard to anything I
might have said previously that might affect this computation,
but I do not want there to be any confusion. [¶] And I have no
intention today of doing anything with regards to impossibility or
impracticability. As far as I’m concerned, at this point, we are full
steam ahead. [¶] And I want to set a briefing schedule, and I also

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want to give you a prophylactic trial [date], because I don’t want
this to be lost.” On this record, we conclude plaintiffs’ cherry
picked statements from the November 9 hearing regarding
impossibility and impracticability do not constitute irreversible
“findings,” as plaintiffs suggest. The trial court properly
requested briefing on the subject, and issued a ten-page written
ruling after reviewing both parties’ arguments.
Moreover, as discussed above, the trial court did not abuse
its discretion by concluding plaintiffs were not reasonably
diligent. In their reply brief, plaintiffs detail the “substantial
record” of this “heavily litigated” case, including the names and
dates of the depositions of 137 witnesses. The trial court
acknowledged that the “discovery in this case has been extensive
and thorough.” That fact alone, however, is insufficient to
demonstrate reasonable diligence. (See Wilcox v. Ford (1988) 206
Cal.App.3d 1170, 1175 [“The exercise of reasonable diligence
requires a plaintiff to ‘keep track of the pertinent dates which are
crucial to maintenance of his lawsuit, and to see that the action is
brought to trial within the five-year period.’ [Citations.] The
failure to monitor these dates does not constitute a cause beyond
the plaintiff’s control so as to trigger application of the
impossible, impracticable or futile exceptions. [Citations.]”].)8

II. The Denial of Plaintiffs’ Class Certification Motion

In addition to their attack on the five-year dismissal,
plaintiffs appeal from Judge Jones’s order denying their motion
for class certification. To obtain reversal, however, “an appellant

8 Because we conclude the trial court did not err by
dismissing plaintiffs’ action for failure to bring it to trial within
five years, we need not address Magic Mountain’s alternative
argument that the trial court should not have excluded the initial
case management stay from April 9, 2013 to August 23, 2013 in
the five-year calculation.
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has the burden to show not only that the trial court erred but also
that the error was prejudicial. [Citations.]” (Red Mountain, LLC
v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 347-
348.) Here, even if we were to agree the motion for class
certification was erroneously denied, plaintiffs’ action would have
been properly dismissed under section 583.310 for the reasons
discussed above. Accordingly, we need not address the merits of
this aspect of plaintiffs’ appeal. (See Tanguilig, supra, 22
Cal.App.5th 313, 334 [where the trial court properly dismissed
the action under section 583.310, the Court of Appeal declined to
address the trial court’s ruling on demurrer because “[i]f a suit
would have failed or been dismissed even in the absence of an
asserted error, the error is plainly not prejudicial to the appellant
and thus reversal is not warranted. [Citations.]”].)

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 DISPOSITION

The judgment is affirmed. Magic Mountain is awarded its
costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

WILLHITE, J.

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