Opinion
C098422
04-19-2024
DENISE LENO, Plaintiff and Respondent, v. MERCY SOTELO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 34-2017-00214812-PR-TR-FRC)
Krause, J.
In this probate action, petitioner Denise Leno prevailed at trial against respondent Mercy Sotelo. On appeal, Sotelo contends: (1) the trial court erred by denying her motion to dismiss the case for failure to bring it to trial within the required time, and (2) the trial court erred by denying her motions to disqualify the trial judge. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The petition in this matter was filed on June 30, 2017. Trial was eventually set for April 21, 2020, but the trial court cancelled the trial due to COVID-19. In September 2021, Leno's attorney emailed the trial court, asking to set trial in February 2022, per the parties' agreement. The court responded that it was setting trials in May 2022 at that time and subsequently set trial for May 24, 2022.
On May 24, 2022, the trial court held a sua sponte hearing continuing the trial to February 14, 2023, "due to unavailability of Trial Courtrooms being assigned out of Department 47 for the rest of this Calendar year due to backlog caused from Covid Closure with Civil and Criminal Trials."
On February 14, 2023, the trial court assigned the trial to a judge. On that same date, Sotelo filed a motion to dismiss the case for failure to set trial before December 30, 2022. Sotelo argued that Leno failed to bring the case to trial within five years (Code Civ. Proc., § 583.310) and six months, as the Judicial Council of California's Emergency Rule 10(a) (Cal. Rules of Court, appen. I, Emergency Rule 10(a)) (emergency rule 10(a)) extended the time to bring an action to trial by six months due to the COVID-19 delays. Leno opposed the motion, arguing it was impossible or impracticable to bring the matter to trial within the five-year and six-month deadline for various reasons, including the trial court's sua sponte continuance due to the suspension of trials.
Statutory references are to the Code of Civil Procedure.
Leno also noted that in August 2020, the trial court reached out to the parties' attorneys and asked whether it was ready to be reset for trial. Leno's counsel responded they were not, as Sotelo had still not been deposed. Leno noticed Sotelo for deposition multiple times, beginning in July 2019, but Sotelo changed counsel several times and declined to cooperate until Leno obtained a court order and ultimately deposed her in April 2021.
The trial court denied the motion in a written ruling. It stated that "[a]s a result of the COVID-19 pandemic, civil trials in the [trial court] were suspended for 293 days from March 17, 2020 until January 4, 2021," and while emergency rule 10(a) provided an extension for the first six months, "at minimum there remains an additional 109 days between September 17, 2020 and January 4, 2021 during which it was impossible, impracticable and or futile for a civil plaintiff to bring an action to trial. This time must be excluded when computing the deadline to commence trial." Taking that time period into consideration, the court found that the deadline to try the case was April 18, 2023, such that the February 14, 2023, trial date was within the allotted time.
On February 21, 2023, Sotelo moved pursuant to section 170.6, subdivision (a)(2) to disqualify the trial judge, which the court denied as untimely. That same day, Sotelo moved to disqualify the trial judge pursuant to section 170.1, which the court ordered stricken because it stated no legal grounds for disqualification. The case proceeded to trial, and thereafter, the trial court granted Leno's petition and entered judgment for Leno.
DISCUSSION
I
Motion to Dismiss
Sotelo first contends the trial court erred by denying the motion to dismiss. Sotelo interprets emergency rule 10(a) to both extend the five-year deadline to bring a civil case to trial by six months, but also to prohibit the court from finding any other basis for tolling the limitations period by overriding section 583.340's tolling provisions. As a result, she argues that emergency rule 10(a) revokes the trial court's discretion to toll the statute of limitations based on impracticability, impossibility, or futility, including the 109 additional days during which the court suspended all trials. Sotelo's interpretation defies both logic and the plain language of the rule, as we explain.
Though not raised by the parties, we note the caselaw indicating that a writ of mandate to compel dismissal or a writ of prohibition to restrain the trial may be the proper vehicles, or at least the preferred vehicles, to challenge the denial of a motion to dismiss, rather than a direct appeal. (See Hunot v. Superior Court (1976) 55 Cal.App.3d 660, 663 ["Since no direct appeal lies from the denial of a motion to dismiss, an appeal from the judgment after trial is an inadequate remedy when the motion is meritorious. 'Either a writ of mandate to compel dismissal or a writ of prohibition to restrain the trial is a proper remedy to enforce the trial court's duty to dismiss [an action] pursuant to section 583, subdivision (b)' "]; see also Perry v. Magneson (1929) 207 Cal. 617, 619621; Tomales Bay Oyster Corp. v. Superior Court of San Francisco (1950) 35 Cal.2d 389, 392.) Nonetheless, at least one published case has considered the denial of a motion to dismiss on direct appeal. (See, e.g., Monzon v. Schaefer Ambulance Serv. (1990) 224 Cal.App.3d 16, 26.) As this issue is not raised by the parties, we will address the merits.
A. Section 583.310 et seq. and Emergency Rule 10
Under section 583.310, "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." A case not brought to trial within five years is subject to dismissal, either upon a noticed motion by the defendant or on the court's own motion. (§ 583.360, subd. (a).) Dismissal is "mandatory and . . . not subject to extension, excuse, or exception except as expressly provided by statute." (§ 583.360, subd. (b).)
Section 583.340 provides certain exceptions that "shall be excluded" from the period of time in which an action must be brought to trial. As relevant here, section 583.340, subdivision (c), provides that the time during which "[b]ringing the action to trial . . . was impossible, impracticable, or futile" shall be excluded "[i]n computing the time within which an action must be brought to trial."
Additionally, "[f]ollowing the outbreak of COVID-19 in March 2020, the Judicial Council of California adopted an emergency rule that extended the deadline to bring a civil action to trial under section 583.310." (State ex rel. Sills v. Gharib-Danesh (2023) 88 Cal.App.5th 824, 840.) Emergency rule 10(a) provides: "Notwithstanding any other law, including . . . section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months." (Emergency rule 10(a); see Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 825.)
A trial court's ruling on a motion to dismiss for failure to prosecute under section 583.310 is typically reviewed for abuse of discretion. (Barron v. Santa Clara County Valley Transportation Authority (2023) 97 Cal.App.5th 1115, 1123 (Barron).) "However, proper interpretation of statutes and court rules are issues of law, and in such instances we review the trial court's decision de novo." (Id. at pp. 1123-1124.)
B. Analysis
Sotelo argues that because emergency rule 10(a) extends the five-year statute by six months "[n]otwithstanding any other law," the rule overrides section 583.340, subdivision (c), and thus precludes any additional tolling based on impossibility, impracticability, or futility.
Leno initially contends the matter is forfeited, because while Sotelo moved to dismiss the action pursuant to section 583.310, she failed to raise this specific argument at the time. We disagree. Appellate courts have the discretion to determine that the forfeiture rule does not apply when the appellant's new theory involves a legal question based on uncontroverted facts in the record. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167; see also Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335 [reviewing court may "consider a newly raised issue 'when [it] involves a purely legal question'" based on an uncontroverted record].) As Sotelo's argument on appeal raises a legal question based on undisputed facts, we will, in our discretion, consider the merits. (See Barron, supra, 97 Cal.App.5th at pp. 1123-1124.)
Turning, then, to Sotelo's argument, we conclude that Sotelo's proposed interpretation of emergency rule 10(a) is untenable. The Judicial Council is empowered to "adopt rules for court administration, practice and procedure, . . . not . . . inconsistent with statute." (Cal. Const., art. VI, § 6, subd. (d).) Here, the Judicial Council issued emergency rule 10(a) in response to the Chief Justice's statewide order, "pursuant to her authority under the California Constitution, article VI, section 6, and Government Code section 68115, authorizing superior courts to adopt proposed rules or rule amendments to address the impact of the COVID-19 pandemic to take effect immediately ...." (Barron, supra, 97 Cal.App.5th at p. 1123.) Government Code section 68115, subdivision (6) permits the presiding judge to request, and the Chairperson of the Judicial Council to, "extend the time periods provided in Sections 583.310 . . . of the Code of Civil Procedure to bring an action to trial" for "the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council." Acting under this authority, and consistent with its intent to ensure the pandemic did not deprive litigants of their day in court, the Judicial Council extended the section 583.310 deadline by six months. The rule purports to do nothing further.
The Judicial Council also was acting in response to Governor Newsom's March 27, 2020 executive order acknowledging that"' "the Judicial Branch retains extensive authority, statutory and otherwise, to manage its own operations as it deems appropriate to mitigate the impacts of COVID-19 ...." (Exec. Order No. N-38-20.) "The order suspended any limitations in Government Code section 68115 or any other provision of law that limited the Judicial Council's ability to issue emergency orders or rules, and suspended statutes that may be inconsistent with rules the Judicial Council may adopt." '" (Barron, supra, 97 Cal.App.5th at p. 1123.)
Indeed, the plain language of the rule reflects the Judicial Council's intent to simply extend the time in which to bring the action to trial by six months, "for a total time of five years and six months." The rule applies "[n]otwithstanding any other law, including . . . section 583.310," because it increases the five-year deadline set forth in section 583.310. And, just as section 583.310's five-year deadline is read in harmony with, and subject to, any periods of impossibility, impracticability, or futility as set forth in section 583.340, so too is emergency rule 10(a)'s extended five-year, six-month deadline. There is nothing in the rule indicating it was meant to conflict with or prevail over section 583.340's tolling provisions, even if it could. Certainly, the generic phrase "[n]otwithstanding any other law" does not suggest the rule supplants section 583.340's tolling provisions with its six-month extension, thereby revoking the discretion granted to the judiciary by the Legislature to make findings of impracticability, impossibility, or futility. The rule's language merely extends the five-year statute by six months, subject to all other applicable, nonconflicting laws, which would include section 583.340. Thus, the trial court was permitted to find a further basis for tolling under section 583.340. (See, e.g., State ex rel. Sills v. Gharib-Danesh, supra, 88 Cal.App.5th at pp. 840-842 [trial court erred by not tolling the five-year statute under section 583.340 due to the stay, which would have extended the five-year, six-month deadline].)
Moreover, the trial court did not abuse its discretion by finding that it was impossible, impracticable, or futile for Leno to bring the matter to trial for the 109 days in which the trial court suspended all civil trials beyond emergency rule 10(a)'s six-month extension. Sotelo does not dispute the fact of, necessity for, or length of the court's unilateral suspension. Nor does she dispute that the parties requested, and initially obtained, a trial date within the statutory time period. She also does not dispute that the trial court forced a continuance on its own authority due to its blanket trial suspensions.
Under these circumstances, courts have frequently held that tolling is appropriate. The five-year statute "has been customarily tolled if the trial was timely set but continued beyond the five-year period because of court congestion. [Collecting Cases]." (Chin v. Meier (1991) 235 Cal.App.3d 1473, 1476.) "[F]or purposes of the five-year limitation period, a court-ordered continuance when both sides announce 'ready' and no courtroom is available is to be treated as a discrete tolling event.... [¶] [T]he trial court must merely subtract the aggregate periods of time attributable to each court-ordered continuance because of courtroom unavailability." (Id. at p. 1478; see also Coe v. City of Los Angeles (1994) 24 Cal.App.4th 88, 92-93 ["five-year statute must be tolled by the aggregate period of court-ordered continuances based upon courtroom unavailability"]; Monzon v. Schaefer Ambulance Serv., supra, 224 Cal.App.3d at pp. 28-29 [affirming the denial of a motion to dismiss where the trial was set within five years but court congestion forced continuance beyond the deadline].) The trial court's decision to toll the statute for an additional 109 days due to courtroom unavailability, and thus deny the motion to dismiss, was therefore not an abuse of discretion.
II
Motions to Disqualify
Sotelo's challenges to the trial court's rulings denying her motions to disqualify are not cognizable on appeal. "An order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate." (Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39, citing § 170.3, subd. (d) ["The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal"].) The writ must be filed within ten days of notice to the parties of the decision. (§ 170.3, subd. (d); People v. Webb (1993) 6 Cal.4th 494, 522-523 &fn. 21.) Sotelo did not timely file a mandate petition challenging the disqualification orders. We are not authorized to now address this challenge on appeal.
DISPOSITION
The judgment is affirmed. Leno shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &(2).)
We concur: Duarte, Acting P. J. Ashworth J. [*]
[*] Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.