Filed 11/3/21 Nguyen v. Inter-Coast Internat. Training CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ANTHONY NGUYEN et al., B305944
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.BC461585)
v.
INTER-COAST
INTERNATIONAL TRAINING,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Sotelo, Judge. Affirmed.
Aequitas Legal Group, Ronald H. Bae, Olivia D. Scharrer
for Plaintiffs and Appellants.
Law Offices of Neil C. Evans and Neil C. Evans;
Roxborough, Pomerance, Nye & Adreani and Michael B. Adreani
for Defendant and Respondent.
INTRODUCTION
Plaintiff Anthony Nguyen filed a class-action lawsuit in
May 2011 against employer Inter-Coast International Training,
Inc. for various Labor Code violations. Plaintiff Cheryl
Alexander was added as a named plaintiff in May 2015, and the
court granted class certification in September 2015. The case
was stayed twice while Inter-Coast appealed court rulings
denying petitions to compel arbitration. A trial was set for
January 2020, just inside the five-year deadline under Code of
Civil Procedure, section 583.310.1
The parties discovered at the final status conference two
weeks before trial that the court had granted summary judgment
in favor of Inter-Coast against a majority of class members, but
the court had not served the written ruling on the parties.
Plaintiffs then requested additional time to name a new class
representative. Inter-Coast moved to dismiss under the five-year
rule, asserting that the active time of the case, not including the
two stays during appeals, exceeded five years. Plaintiffs opposed
the motion to dismiss, asserting that an additional 14-day stay
should be subtracted from the five-year period, and that the
court’s failure to serve the parties with a ruling on a discovery
motion prevented them from completing discovery before trial.
The court rejected plaintiffs’ contentions, granted Inter-Coast’s
motion to dismiss, and denied plaintiffs’ request to amend the
complaint. Plaintiffs appealed.
We affirm. The active time in the case exceeded five years,
subtracting the two appeal stays and a 14-day stay in May and
All further statutory references are to the Code of Civil
1
Procedure unless otherwise indicated.
2
June 2012 while Inter-Coast’s first petition to compel arbitration
was pending. Plaintiffs have failed to demonstrate that any
additional periods, including the time in which the court did not
serve the discovery ruling on the parties, should be deemed a
period in which it was “impossible, impracticable, or futile” for
plaintiffs to bring the case to trial. (§ 583.340.) Because we find
no error regarding the court’s ruling on Inter-Coast’s motion to
dismiss, we do not address plaintiffs’ additional contentions that
the court erred in granting Inter-Coast’s motion for summary
judgment and denying plaintiffs’ request for leave to amend the
complaint after summary judgment was granted.
FACTUAL AND PROCEDURAL BACKGROUND
A. Five-year rule
At issue in this case is the five-year rule—the requirement
that “an action shall be brought to trial within five years after the
action is commenced against the defendant.” (§ 583.310.) If the
action is not brought to trial within five years, the “action shall
be dismissed by the court on its own motion or on motion of the
defendant, after notice to the parties. . . . The requirements of
this article are mandatory and are not subject to extension,
excuse, or exception except as expressly provided by statute.”
(§ 583.360, subds. (a), (b).)
In computing the five-year time period, time is excluded
“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.” (§ 583.340.) The applicability of
subdivision (a) is not at issue in this case. “[S]ubdivision (b)
contemplates a bright-line, nondiscretionary rule that excludes . .
3
. only that time during which all the proceedings in an action are
stayed. Subdivision (c) gives the trial court discretion to exclude
additional periods, including periods when partial stays were in
place, when the court concludes that bringing the action to trial
was ‘impossible, impracticable, or futile.’” (Bruns v. E-Commerce
Exchange, Inc. (2011) 51 Cal.4th 717, 726 (Bruns).)
B. Procedural background
The five-year period for this case commenced on May 13,
2011, when Nguyen filed a class-action complaint against Inter-
Coast, alleging six causes of action for various wage-and-hour
violations.2 Nguyen alleged that Inter-Coast, doing business as
Intercoast Colleges, failed to pay employees for all time worked,
failed to pay overtime, failed to provide adequate meal and rest
breaks, and committed other Labor Code violations.
On May 30, 2012, Inter-Coast filed a petition to compel
arbitration and stay proceedings. The following day, Inter-Coast
filed an ex parte application seeking extension of a court-ordered
discovery deadline on the basis that the petition to compel
arbitration “stays this action for all purposes” until the court
ruled on the petition. In its May 31, 2012 ruling granting Inter-
Coast’s ex parte application, the court set a shortened briefing
schedule for the petition to compel arbitration, and stated, “Court
2 The appellants’ appendix in this case consists of 11
volumes. The briefing from both parties includes citations only to
the relevant page numbers, without any volume designations.
We remind counsel that “[e]ach brief” must “[s]upport any
reference to a matter in the record by a citation to the volume and
page number of the record where the matter appears.” (Cal.
Rules of Court, rule 8.204(a)(1)(C) (emphasis added).)
4
finds case is stayed, pending ruling on petition.” On June 14,
2012, the court denied the petition.
On June 15, 2012, Inter-Coast filed a notice of appeal
challenging the court’s denial of its petition to compel arbitration.
This court affirmed the trial court’s ruling in an unpublished
decision. (Nguyen v. Inter-Coast Internat. Training, Inc. (Aug. 21,
2013, No. B241938) [nonpub. opn.].) The remittitur was issued
on October 23, 2013. The superior court case was therefore
stayed for 495 days from June 15, 2012 to October 23, 2013.
The first amended complaint, filed on May 22, 2015, added
Alexander as a plaintiff and putative class representative for
certain claims. On September 21, 2015, the court granted class
certification.
On October 23, 2015, Inter-Coast filed a petition to compel
arbitration of all claims by class members who had signed
arbitration agreements. Again, Inter-Coast requested that the
court stay the action until the petition was decided. The court
did not order a stay before the hearing. The petition was heard
on January 12, 2016, and the court took the matter under
submission. On February 1, 2016, the court denied the petition.
On February 16, 2016, Inter-Coast filed a notice of appeal
from the court’s ruling on the petition to compel arbitration. This
court affirmed the trial court’s ruling in an unpublished decision.
(Nguyen v. Inter-Coast Internat. Training, Inc. (Apr. 20, 2018, No.
B270305) [nonpub. opn.].) The remittitur was issued on June 20,
2018. The superior court case was therefore stayed for 854 days
from February 16, 2016 to June 20, 2018.
5
C. Motion for summary judgment and motion to dismiss based
on the five-year rule
On April 18, 2019, the court scheduled a final status
conference for December 5, 2019 (it was later continued to
December 19, then January 8, 2020), and set the trial for
January 21, 2020. Plaintiffs’ counsel noted at a later hearing
that “the trial date of January 21st was set with the five-year
clock in mind.”
On July 19, 2019, Inter-Coast filed a motion for summary
judgment. It asserted that the two class representatives and 247
of the 418 class members signed releases or settlement
agreements “acknowledging the receipt of any and all monies
owed to them, and releasing, waiving and discharging any
potential claims against Intercoast that they may have, including
all those covered by this lawsuit.” Inter-Coast also asserted that
it paid all wages due and did not engage in any rest or meal
break violations.
Plaintiffs opposed the motion. They argued the releases
the named plaintiffs and other class members signed were
unenforceable because employees were required to sign the
releases in order to receive their final paychecks in violation of
Labor Code section 206.5, subdivision (a). Plaintiffs also asserted
that the releases constituted improper communications between
Inter-Coast and class members. Further, plaintiffs contended
there were triable issues of fact regarding whether Inter-Coast
provided required rest and meal breaks. Plaintiffs also requested
a continuance because they were waiting for Inter-Coast “to
produce the class members’ time and payroll records in response
to Plaintiffs’ merits discovery requests.” Inter-Coast filed a reply
in support of its motion.
6
The parties argued their positions at the hearing on the
motion for summary judgment on October 3, 2019, and the court
took the matter under submission.
On October 23, 2019, plaintiffs filed an ex parte application
seeking sanctions against Inter-Coast and asking the court to
issue a written order reflecting rulings made at a September 20,
2019 discovery conference. Plaintiffs asserted that Inter-Coast
was not complying with discovery obligations regarding
document production or scheduling depositions. According to the
court’s October 24, 2019 minute order, the court denied the ex
parte application. However, on October 25, 2019 the court signed
a proposed order submitted by plaintiffs requiring Inter-Coast to
make documents available for copying and setting certain
deposition dates. The court apparently did not serve this written
order on the parties.
At the final status conference on January 8, 2020, the
parties noted that the court had not ruled on the motion for
summary judgment. The court stated that it had ruled on the
motion for summary judgment, but then realized the ruling had
never been served on the parties. The court gave the parties its
written ruling, dated October 25, 2019, granting Inter-Coast’s
motion for summary judgment. In its ruling, the court held that
the named plaintiffs and 247 of the 418 class members signed
releases and/or settlement agreements releasing their claims
against Inter-Coast and acknowledging receipt of all wages due.
The court also found that by signing these releases, the named
7
plaintiffs and 247 class members released all other claims
regarding rest and meal breaks.3
After reviewing the order granting the motion for summary
judgment, plaintiffs’ counsel asked for a continuance to amend
the complaint to substitute as class representative a plaintiff who
did not sign a release. The court and parties acknowledged that
trial was set for January 21. Inter-Coast discussed its intent to
bring a motion to dismiss the case based on the five-year rule;
plaintiffs’ counsel acknowledged that the five-year period would
expire “sometime at the end of January.” The court asked the
parties to confer, vacated the trial date, and set a further status
conference for the former trial date, January 21.
The status conference took place on January 21, and
extended to the following day, January 22. Plaintiffs’ counsel
stated that 171 class members remained following summary
judgment, and requested leave to replace the class
representative. Plaintiffs’ counsel said he would be willing to
make an oral motion immediately, or set a briefing schedule for a
written motion, but “given the five-year clock, . . . we would have
to do that fairly quickly.” Plaintiffs’ counsel also stated that “the
trial date has to be February 6, which is the five-year deadline,
unless . . . defense counsel on the record here today stipulates to
waiving the five-year trial date.” Defense counsel did not agree
that February 6 was the five-year deadline; he believed the
deadline expired on January 21. Defense counsel did not
stipulate to waive the five-year restriction.
3 The court’s ruling did not address the status of claims of
the class members who did not sign releases or settlement
agreements.
8
Plaintiffs’ counsel also said plaintiffs were “waiting for an
order from the court as to the taking of several deponents [sic],”
presumably referring to the October 23 ex parte request
regarding discovery. Plaintiffs’ counsel said, “We have not been
able to take any depositions because defendants would not
cooperate and produce those deponents without a signed court
order.” Inter-Coast’s counsel disagreed that any discovery had
been limited, stating, “We didn’t hear anything from [plaintiffs’
counsel] from October 23rd until we were in court yesterday,
bringing up the issue of discovery.” Defense counsel also said,
“[F]rom October 23rd to January 20 he said nothing about
discovery. Didn’t use that time frame to try to complete discovery.
. . .” Plaintiffs’ counsel asserted that they only received the order
on the discovery motion sometime during the January 21-22
hearing.
The court set a briefing schedule for Inter-Coast’s motion to
dismiss and plaintiffs’ motion for leave to amend the complaint,
and set a hearing for February 3. Plaintiffs’ counsel asked the
court to stay the case in the meantime; the court denied the
request.
In its written motion to dismiss, Inter-Coast asserted that
the five-year period expired on January 21, 2020, based on the
date the complaint was filed minus the stays for the two appeals.
Inter-Coast argued there were no other “complete” stays of the
case relevant to the five-year calculation. Inter-Coast noted that
the court stated in its May 31, 2012 minute order that the “case
is stayed, pending ruling on [Inter-Coast’s] petition” to compel
arbitration, but Inter-Coast asserted this was only a discovery
stay that did not affect the five-year rule.
9
Plaintiffs opposed the motion. They agreed the two appeals
constituted complete stays of the case. They asserted that the
court’s May 31, 2012 order imposed a complete stay, not just a
discovery stay, and therefore the 14-day period between May 31
and June 14, 2012 should be subtracted from the five-year period.
Plaintiffs asserted that the five-year period therefore ended on
February 6, 2020.
Plaintiffs also noted that section 583.340, subdivision (c),
excludes time from a five-year calculation in which “[b]ringing
the action to trial . . . was impossible, impracticable, or futile.”
Plaintiffs asserted that “the parties did not receive the Court’s
signed Order on the rulings at the hearings on July 22, 2019,
September 20, 2019 and October 24, 2019 until January 21,
2020,” and during this time, they were “prevented from taking
critical depositions to prepare for trial and conduct other merits
discovery.” Plaintiffs argued that this period must be excluded
from the five-year calculation. Plaintiffs submitted several
motions to compel and other communication with defense counsel
regarding attempts to complete discovery; all of the evidence pre-
dated the end of October 2019.
In addition, plaintiffs cited section 583.350, which states
that a party may have an additional six months to bring a case to
trial if “at the end of the period of tolling or extension less than
six months remains” before the case must be brought to trial.4
4 Section 583.350 states in full, “If the time within which an
action must be brought to trial pursuant to this article is tolled or
otherwise extended pursuant to statute with the result that at
the end of the period of tolling or extension less than six months
remains within which the action must be brought to trial, the
action shall not be dismissed pursuant to this article if the action
10
Plaintiffs asserted, “Based on Plaintiffs’ calculations, the five-
year period expires on February 6, 2020. If Defendant’s motion is
denied on February 3, 2020, that only provides 3 days to bring
the case to trial. Thus, under Section 583.350, Plaintiffs are
entitled to bring the case to trial within six months, i.e., by
August 6, 2020.”
Inter-Coast filed a reply in support of its motion. It
reiterated the contentions in its motion, and asserted that the
October 25 discovery order had been available on the court’s
online docket since it was signed. Inter-Coast asserted that
plaintiffs’ failure to review the online docket for the ruling on its
discovery motion did not constitute a tolling event. It also
asserted that the six-month add-on in section 583.350 did not
apply, because there had been no stay of the case in the preceding
six months.
Meanwhile, plaintiffs filed their motion for leave to file a
second amended complaint and to name a new class
representative. They argued that because the court granted
summary judgment for part of the class, including the class
representatives, the court should grant leave to allow a different
plaintiff to represent the remaining 171 class members.
Plaintiffs acknowledged that Inter-Coast may need to “test the
adequacy of the proposed class representative via deposition or
other means.” They argued that Inter-Coast would not be
prejudiced by the amendment, and any delay was “one of
Defendant’s own making because Defendant waited some 8
years” to bring the motion for summary judgment.
is brought to trial within six months after the end of the period of
tolling or extension.”
11
Inter-Coast opposed plaintiffs’ motion, asserting there was
no good cause for the delay in adding a new class representative
because plaintiffs had known for years about the signed releases
that were the basis of the motion for summary judgment. Inter-
Coast also stated that the new proposed class representative had
signed a binding arbitration agreement, and her employment
with Inter-Coast started more than five years after the lawsuit
began. Inter-Coast also asserted that beginning discovery with a
new class representative nine years into the case would be
prejudicial.
In their reply, plaintiffs argued that the arbitration
agreement the proposed class representative signed was
unenforceable. They also asserted that there was no basis for
replacing the class representatives before the court granted the
motion for summary judgment.
At the hearing on both motions on February 3, 2020, the
court took both motions under submission. On February 13, the
court issued a written ruling stating, “Defendant’s motion to
dismiss under [the] 5 year rule is granted. [¶] Plaintiff[s’] motion
for leave is denied.” The court entered judgment for Inter-Coast
on March 16, 2020. Plaintiffs timely appealed.
DISCUSSION
Plaintiffs argue that the five-year deadline had not yet
expired when the court granted Inter-Coast’s motion to dismiss.
They assert that in addition to the two appeal stays, the court
should have subtracted time while the two arbitration petitions
were pending, and the periods in which the court failed to serve
the rulings on the motion for summary judgment and the October
2019 discovery motion. Inter-Coast asserts that other than the
two appeal stays, no other time should be subtracted from the
12
five-year period. We find that the court imposed a 14-day stay in
May and June 2012 while Inter-Coast’s first petition to compel
arbitration was pending, and no other time periods are exempted
from the five-year period. Thus, the five-year period had expired
when the court ruled on Inter-Coast’s motion to dismiss on
February 13, 2020, and the motion was appropriately granted.
Because we find no error regarding the court’s dismissal, we do
not address plaintiffs’ additional contention that the court erred
in granting Inter-Coast’s motion for summary judgment.
A. Stays under section 583.340, subdivision (b)
Under Government Code section 6803, a year is a period of
365 days, even in leap years, in which February 28 and 29 are
counted as a single day.5 Thus, a five-year period is 1,825 days.
In addition, “[t]he time in which any act provided by law is to be
done is computed by excluding the first day, and including the
last.” (Gov. Code, § 6800.) The complaint was filed on May 13,
2011, and the court’s order dismissing the case was entered on
February 13, 2020—a period of 3,196 days, excluding the two
leap year days within that period.
Section 583.340, subdivision (b), provides that time in
which “[p]rosecution or trial of the action was stayed or enjoined”
shall be excluded from the five-year period. The case was stayed
for 495 days for the first appeal and 854 days for the second
appeal, for a total of 1,349 days. Subtracting these two stays from
the 3,196 days between filing and dismissal, the case was active
5“‘Year’ means a period of 365 days. . . . The added day of a
leap year, and the day immediately preceding, if they occur in
any such period, shall be reckoned together as one day.” (Gov.
Code, § 6803.)
13
for 1,847 days—longer than five years (1,825 days). Defendant
asserts that these two appeal stays were the only periods that
warranted legitimate exclusions from the five-year period, and
therefore the motion was properly granted.
Plaintiffs assert that two additional stays should be
excluded from the five-year period. They note that Inter-Coast
filed its first petition to compel arbitration on May 30, 2012 and
requested that the case be stayed. In the ex parte application
filed May 31 seeking to extend previously ordered discovery
deadlines, Inter-Coast argued that the petition to compel
arbitration stayed the entire case. In its ruling granting Inter-
Coast’s ex parte application, the court stated, “Court finds case is
stayed, pending ruling on petition.” On June 14, the court denied
Inter-Coast’s petition to compel arbitration. Plaintiffs therefore
assert the case was stayed during the 14-day period between May
31 and June 14, 2012. They rely on section 1281.4, which states
in part, “If an application has been made . . . for an order to
arbitrate a controversy which is an issue involved in an action or
proceeding pending before a court of this State and such
application is undetermined, the court in which such action or
proceeding is pending shall, upon motion of a party to such action
or proceeding, stay the action or proceeding until the application
for an order to arbitrate is determined. . . .”
Inter-Coast argues that the court’s May 31 ruling “merely
stayed discovery,” and did not stay the entire case. This position
is not supported by the record. In its ex parte application, Inter-
Coast argued that the petition to compel arbitration “stays the
action for all purposes.” The court granted the ex parte
application, presumably based on the arguments Inter-Coast
asserted, and stated that the “case is stayed”—not that discovery
14
was stayed. It therefore appears the case was stayed for 14 days
between May 31 and June 14, and such a stay meets the
requirements of Section 583.340, subdivision (b).
Plaintiffs also argue for the first time on appeal that the
case was stayed for an additional 102 days between the time
Inter-Coast filed its second petition to compel arbitration on
October 23, 2015 and the date the court denied that petition,
February 1, 2016. Plaintiffs acknowledge that during this period,
the court set a status conference without mentioning any stay,
and “the trial court did not expressly rule on the motion for [a]
stay.”
Plaintiffs forfeited this contention by not raising it below.
(See Perez v. Grajales (2008) 169 Cal.App.4th 580, 591 (Perez)
[“‘[I]t is fundamental that a reviewing court will ordinarily not
consider claims made for the first time on appeal which could
have been but were not presented to the trial court’”].) Even if
this argument had been preserved, however, the record does not
support it. Plaintiffs’ argument suggests that a stay was imposed
by Inter-Coast’s motion alone and no action by the court, but
“[t]he filing of a petition to compel arbitration does not
automatically stay ongoing proceedings.” (OTO, L.L.C. v. Kho
(2019) 8 Cal.5th 111, 140; see also section 1281.4 [when a petition
to compel arbitration is filed, “the court . . . shall, upon motion of
a party to such action or proceeding, stay the action or
proceeding” (emphasis added)].) Moreover, the case summary
submitted with the record on appeal indicates that proceedings
were not stayed. During this time period, the court ordered
notice to be served regarding the class certification, the parties
filed documents relating to Inter-Coast’s motion for
reconsideration of the class certification ruling, and plaintiffs
15
moved for sanctions against Inter-Coast. The record therefore
does not support plaintiffs’ contention that the case was stayed
from October 23, 2015 to February 1, 2016.
In total, the case was stayed for 1,363 days (495 + 854 +
14). Subtracting these stays from the total time of the case (3,196
days), the case was active for 1,833 days on the date the court
granted the motion to dismiss—longer than a five-year, 1,825-day
period.
B. The “impossible, impracticable, or futile” exception under
section 583.340, subdivision (c)
Plaintiffs contend that additional time should be excluded
from the five-year period under section 583.340, subdivision (c),
which states that time may be excluded when “[b]ringing the
action to trial . . . was impossible, impracticable, or futile.”
Plaintiffs assert that the five-year period should not include the
days between September 24, 2019 and January 22, 2020, while
plaintiffs “were seeking to enforce a court order requiring Inter-
Coast to substantively respond to merits discovery requests.”6
Plaintiffs assert that they therefore had an additional six months
to bring the case to trial under section 583.350.
6 Plaintiffs also assert for the first time on appeal that it
was impossible, impracticable, or futile to bring the case to trial
while waiting for the ruling on the motion for summary
judgment. As noted above, we do not consider contentions made
for the first time on appeal that could have been but were not
presented to the trial court. (Perez, supra, 169 Cal.App.4th at p.
591.) This contention has been forfeited. In addition, as
discussed in this section, the record does not support plaintiffs’
contentions.
16
“To avoid dismissal under the section 583.340, subdivision
(c) exception, [plaintiffs] must prove (1) a 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
[they were] reasonably diligent in prosecuting [the] case at all
stages in the proceedings.” (Tanguilig v. Neiman Marcus Group,
Inc. (2018) 22 Cal.App.5th 313, 323.) “‘Time 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 [the] exceptions’” to the five-year rule under
section 583.340, subdivision (c). (Bruns, supra, 51 Cal.4th at p.
731.)
“Determining whether the subdivision (c) exception applies
. . . depends ‘on the obstacles faced by the plaintiff in prosecuting
the action and the plaintiff’s exercise of reasonable diligence in
overcoming those obstacles.’” (Bruns, supra, 51 Cal.4th at p.
731.) “The exercise of such diligence includes the obligation to
monitor the case in the trial court to ascertain whether any filing,
scheduling or calendaring errors have occurred. [Citation.] This
is particularly true where the circumstances are such that a
party should reasonably conclude that the court has in fact made
some calendaring error. . . . Indeed, the diligence required of a
litigant increases as the five-year deadline approaches. It is then
that the greatest diligence is required.” (Wilshire Bundy Corp. v.
Auerbach (1991) 228 Cal.App.3d 1280, 1287.)
“The question of impossibility, impracticability, or futility is
best resolved by the trial court, which ‘is in the most
advantageous position to evaluate these diverse factual matters
17
in the first instance.’ [Citation.] The plaintiff bears the burden
of proving that the circumstances warrant application of the
section 583.340(c) exception.” (Bruns, supra, 51 Cal.4th at p.
731.) “The trial court has discretion to determine whether the
impossibility exception applies, and that decision will be
disturbed on appeal only if an abuse of that discretion is shown.”
(Perez, supra, 169 Cal.App.4th at pp. 590-591.)
Plaintiffs assert, “It would have been impracticable,
impossible, or futile to bring the case to trial for 119 days when
[plaintiffs] were waiting for the court to sign a discovery order
compelling Inter-Coast to comply with merits discovery requests.”
Plaintiffs assert that due to the complexity of the case and Inter-
Coast’s “tactics,” plaintiffs’ efforts to complete discovery were
thwarted throughout the case. They argue, “Because of Inter-
Coast’s refusal to comply with its discovery obligations in the
absence of a court order, [plaintiffs] were not able to conduct
discovery while waiting for the order to be signed.” Inter-Coast’s
respondent’s brief does not acknowledge these arguments.
By granting the motion to dismiss, the trial court impliedly
rejected plaintiffs’ contentions, and plaintiffs have not
demonstrated that this conclusion constituted an abuse of
discretion. Nothing in the record suggests that plaintiffs
unsuccessfully sought to complete discovery between October
2019 and January 2020. The hearing on January 8 was supposed
to be the final status conference,7 trial was set for January 21,
and plaintiffs were aware that the five-year deadline was
7The final status conference was originally set for
December 5, 2019. It was continued to December 19, 2019, then
continued again to January 8, 2020.
18
approaching. Yet there is no indication in the record that
plaintiffs attempted to complete discovery, filed motions in
limine, exchanged witness lists, or completed other trial
preparation tasks prior to the final status conference.8 Plaintiffs
argue that Inter-Coast was frustrating plaintiffs’ discovery
efforts, but plaintiffs did not show any communications
discussing discovery with defense counsel or attempts to complete
discovery after October 2019. Indeed, plaintiffs represented to
the trial court in their opposition to Inter-Coast’s motion to
dismiss that the parties largely agreed on the discovery deadlines
but could not agree on the exact language for the court’s proposed
discovery order.
Although the court was remiss in failing to serve the
written orders once signed, Inter-Coast stated that the order had
been available on the court website since October 2019, and
plaintiffs’ counsel did not contact the court to ask about the order
between the end of October and the final status conference.9
8 See, e.g., Super. Ct. L.A. County, Local Rules, rule
3.25(f)(1) (“At least five days prior to the final status conference,
counsel must serve and file lists of pre-marked exhibits to be
used at trial [citation], jury instruction requests, trial witness
lists, and a proposed short statement of the case to be read to the
jury panel explaining the case”) and rule 3.25(f)(2) (“the parties
must file and serve any trial preparation motions and dispositive
motions, other than summary judgment motions, including
motions in limine or bifurcation motion, with timely statutory
notice so as to be heard on the day of the final status
conference”).
9 In their briefs, plaintiffs state that they “contacted the
court clerk several times to inquire if the order had been signed.”
They cite a declaration by plaintiffs’ counsel signed October 23
19
Plaintiffs did not even raise the issue of the discovery ruling on
January 8, 2020; they only requested the ruling at the later
hearing, January 21, 2020, the day trial was scheduled to begin.
These facts do not suggest that plaintiffs were reasonably
diligent in seeking to bring the case to trial, and that lack of the
discovery order rendered such efforts impossible, impracticable,
or futile. Plaintiffs have not demonstrated that the trial court
abused its discretion in finding that that the exception under
section 583.340, subdivision (c) did not apply.
Plaintiffs therefore have not demonstrated error in the
court’s ruling granting Inter-Coast’s motion to dismiss under the
five-year rule. The case was appropriately dismissed on this
basis. As such, we do not reach plaintiffs’ alternate contentions
that Inter-Coast’s motion for summary judgment should have
been denied, or that the court should have granted plaintiffs’
request for leave to amend the complaint.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J. CURREY, J.
and filed with the ex parte motion. There is no indication in the
record that plaintiffs contacted the court for an order after the
October 23 ex parte.
20