Opinion
D074299
11-28-2018
MOSSY EUROPEAN IMPORTS, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; BEDROSIAN VISTA, LLC et al., Real Parties in Interest.
Klinedinst, Robert M. Shaughnessy and Catherine M. Asuncion for Petitioner. No appearance for Respondent. Palmieri, Tyler, Wiener, Wilhelm & Waldron, Michael H. Leifer and Erin Balsara Naderi for Real Party in Interest Bedrosian Vista, LLC. Richards, Watson & Gershon and Saskia T. Asamura for Real Party in Interest City of Vista.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on November 28, 2018 be modified as follows:
On page 9, footnote 5 is deleted and replaced with a new footnote 5 as follows:
Mossy's writ petition acknowledged that Mossy had filed a cross-complaint in the action. Mossy represented to this Court that if a writ of mandate issued compelling the superior court to grant
Mossy's motion to dismiss and dismissing Bedrosian's claims in their entirety, "Mossy would dismiss its cross-complaint to facilitate resolution of the entire action." The City joined in Mossy's petition.
There is no change in judgment.
Real party in interest's petition for rehearing is denied.
McCONNELL, P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00038941-CU-BC-NC) ORIGINAL PROCEEDING in mandate. Earl H. Maas, III, Judge. Petition granted. Klinedinst, Robert M. Shaughnessy and Catherine M. Asuncion for Petitioner. No appearance for Respondent. Palmieri, Tyler, Wiener, Wilhelm & Waldron, Michael H. Leifer and Erin Balsara Naderi for Real Party in Interest Bedrosian Vista, LLC. Richards, Watson & Gershon and Saskia T. Asamura for Real Party in Interest City of Vista.
Parties have a duty to diligently monitor their case in the superior court, to keep track of relevant dates and—if the clerk has made a docketing error, to notify the court at the first indication of a problem. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1104 (Gaines); Hoffman v. State of California (1985) 171 Cal.App.3d 1100, 1107 (Hoffman).)
In this case, at the parties' request for more time to try to negotiate settlement, the trial court continued the hearing on dispositive motions four times over the course of seven months. When the parties asked for a fifth continuance, the exasperated trial judge instead "stay[ed] all current hearings" and instructed the parties to appear ex parte to schedule a hearing date "if [the] matter does not settle."
Unfortunately, someone in the superior court apparently interpreted that order as a stay of all trial court proceedings and erroneously entered "All Proceedings Stayed" in the online register of actions. Counsel for Bedrosian Vista, LLC (Bedrosian), despite knowing that the court had only stayed then-current hearing dates, claims he relied on the register of actions and, therefore, did nothing to prosecute the case for over a year. As a result, the five-year period for bringing the case to trial under Code of Civil Procedure section 583.310 lapsed.
Undesignated statutory references are to the Code of Civil Procedure.
The trial court denied petitioner's motion to dismiss under the five-year rule, determining that the clerk's erroneous designation—"All Proceedings Stayed"—made it "impracticable" for Bedrosian to prosecute the case and, therefore, the five-year period was tolled.
Although we do not condone clerical errors like the one that happened here, as we explain, Bedrosian had actual knowledge that the "All Proceedings Stayed" designation was inconsistent with the court's actual order. Bedrosian's duty to diligently monitor the case required calling the court's attention to that error, rather than remaining silent while the five-year clock ticked away. In concluding otherwise, the superior court contravened settled law.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
On March 13, 2013, Bedrosian filed a complaint against Mossy European Imports, Inc. (Mossy) and the City of Vista (City). The lawsuit involves a dispute about parking rights in a commercial center located in the City.
B. Injunction and Appeal
In April 2013 the trial court granted Bedrosian's request for a preliminary injunction precluding Mossy from parking vehicles on one of the subject parcels. Mossy appealed from that order. While that appeal was pending, the parties engaged in discovery, Bedrosian filed a first amended and supplemental complaint, the court conducted a case management conference and set a trial date, and the parties engaged in mediation. In sum, there was no stay on trial court proceedings pending the appeal of the preliminary injunction.
In May 2014 we affirmed the order granting the preliminary injunction, and in that opinion we expressly held that the injunction was prohibitory, not mandatory. (Bedrosian Vista, LLC v. Mossy European Imports, Inc. et al. (May 5, 2014, D063845) [nonpub. opn.].)
C. Continuances of Trial and Dispositive Motions
1. Trial
Initially the court scheduled trial for October 17, 2014. However, in August 2014, based on the parties' request for more time to conduct discovery, prepare for trial, and "fully explore the possibility of settlement," the court continued the trial date to May 8, 2015. In January 2015 the court continued the trial again at the parties' request for more time to consider settlement—this time to September 11, 2015. On June 1, 2015, the parties again stipulated to continue the trial date to allow more time for mediation. However, this time—instead of continuing the trial—the court vacated the September 2015 trial date and ordered the parties to appear ex parte to schedule a trial date after exhausting settlement negotiations.
As will be seen, the trial court ultimately entered a like order after numerous continuances of the hearing date for dispositive motions.
2. Dispositive motions
In May 2015 Mossy filed a motion for summary adjudication and the City filed a motion for summary judgment (collectively, the dispositive motions). The court set the dispositive motions for an August 7, 2015 hearing.
On June 29, 2015, at Bedrosian's request, the court continued the hearing on the dispositive motions to September 25, 2015. Based on the parties' request for more time to negotiate a settlement, the court continued the hearing on the dispositive motions to November 20, 2015, and later to February 19, 2016. On January 4, 2016, on the parties' joint request, the court again continued the hearing on the dispositive motions, now to March 18, 2016.
D. The February 9, 2016 Stay
On February 4, 2016, the parties filed a fifth request to continue the hearing on the dispositive motions, to April 29, 2016. Once again, the parties represented they needed more time "to continue settlement discussions."
However, this time the superior court denied the request for a continuance. On February 9, 2016, the court issued an order stating: "[C]ourt stays all current hearings. Parties may appear ex parte to schedule hearings if matter does not settle." Subsequently, the court explained that it issued this order because the attorneys "kept moving hearings and we'd prep[are] for them and then the night before we'd hear, 'Oh, we want to continue that.' [¶] And I finally threw my hands up and said, 'Enough. Come back and see me when you're ready to try the case.'"
Although this February 9, 2016 order only stayed "current hearings," the "case status" in the register of actions was changed to "All Proceedings Stayed." This was a mistake. The trial judge later stated that he did not recall ordering such a stay, it was not his normal practice to stay cases, and "somebody in our system put it in as a stay."
E. Litigation After the February 2016 Order
About two weeks later, on February 16, 2016, the City responded to requests for admission and interrogatories that had been propounded by Bedrosian. Among other objections, the City asserted that the discovery requests were "unduly burdensome and oppressive" because Bedrosian was seeking discovery in connection with the dispositive motions, and the court had "stayed all current motion hearings."
In late October 2016 Mossy's lawyer notified Bedrosian's counsel that Mossy had ceased doing business at the subject property. Mossy's lawyer invited Bedrosian's attorney to "see if all parties can reach any common ground as to how to resolve the remaining issues in the litigation."
On November 10, 2016, Bedrosian's lawyer wrote to Mossy's attorney that he was working on a revised settlement agreement. Four days later, Mossy's attorney replied, "[W]hen do you anticipate being able to get me a redline of the settlement agreement?" Mossy's attorney heard nothing from Bedrosian's lawyer for more than 15 months.
F. Bedrosian's Ex Parte Motion
On March 12, 2018—one day before the five-year deadline to bring the case to trial would expire—Bedrosian filed an ex parte application for an order "removing the stay of proceedings" and "to confirm the tolling" of the five-year period to start trial. Bedrosian asserted that on February 9, 2016, the court stayed all hearings in the case, as reflected in the register of actions. Citing section 583.340, subdivision (b), Bedrosian argued the five-year period was tolled during this stay.
Section 583.340, subdivision (b) provides that in computing the time within which an action must be brought to trial, the time during which "[p]rosecution or trial of the action was stayed or enjoined" is excluded.
Mossy opposed Bedrosian's motion, asserting the case was never stayed—only the hearing dates were vacated—and Bedrosian had done nothing to prosecute the case for two years.
Stating, "This case is a mess," the trial court asked the parties to brief the issues and set a hearing for defendants to bring a motion to dismiss under the five-year statutes.
G. Motion to Dismiss
Mossy filed a motion to dismiss, asserting that dismissal was "mandatory" because the action was filed more than five years previous and neither Mossy's appeal from the preliminary injunction nor the trial court's order in February 2016 staying hearing dates tolled the five-year period. The City joined Mossy's motion.
Bedrosian filed opposition, asserting that the five-year period was tolled by (1) Mossy's appeal from the preliminary injunction; and (2) the February 9, 2016 order, which Bedrosian characterized as a "stay of all proceedings" in light of the "All Proceedings Stayed" designation in the register of actions. In an accompanying declaration, Bedrosian's lawyer stated that "[a]t various times" since the court's February 2016 stay, he reviewed and "relied on the [c]ourt's official record" that all proceedings were stayed. Counsel stated he also relied on a February 18, 2016 e-mail from Mossy's lawyer stating that the court's calendar clerk "asked me to let both of you know that all motions/hearings are stayed pending further order of the court . . . ." Bedrosian's lawyer noted that after the stay, "there was no further litigation activity" until the recent ex parte to "reactivate the case." Counsel conceded, however, that during the stay "the parties engaged in settlement negotiations" through October 2016.
In its reply, Mossy asserted that the February 9, 2016 order did not stay all proceedings, but "merely vacated pending dates." Mossy noted that the parties "continued to negotiate settlement for another nine months after that notice, and Bedrosian was free, at any time, to 'appear ex parte to schedule hearings.'" Citing Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717 (Bruns), Mossy asserted that the five-year period is tolled by a stay only when a stay encompasses all proceedings in the action. Moreover, because the Court of Appeal determined that the preliminary injunction was prohibitory, not mandatory, Mossy asserted there was no stay during the appeal from the preliminary injunction.
At the hearing, the court stated it was unable to find any authority "right on point" in the situation where the court "messes it up" by erroneously stating that all proceedings were stayed. Mossy's lawyer replied, "I think I found something for you," and cited Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280 (Wilshire Bundy). Mossy's lawyer argued that in Wilshire Bundy, a court clerk's docketing error did not toll the five-year period because a plaintiff is required to monitor the progress of the case and bring such errors to the court's attention. Mossy's lawyer asserted, "In this case . . . the plaintiff could have looked at the court docket and said, 'Well, that's strange. Nobody ordered that. That [February 9, 2016 order] doesn't say that, but that error is there on the court's website. I should probably talk to somebody.'"
Mossy did not cite Wilshire Bundy, supra, 228 Cal.App.3d 1280 in its moving or reply papers, but only at the hearing. When the trial court asked counsel, "But you didn't put it in your papers?", Mossy's lawyer replied, "I'm not sure, Your Honor." This was unfortunate. If the trial court had been given the opportunity to consider Wilshire Bundy before ruling, this writ proceeding would likely have been unnecessary.
After oral argument the court denied Mossy's motion to dismiss. The court agreed with Mossy that the preliminary injunction appeal did not stay trial court proceedings. However, because the register of actions stated all proceedings were stayed, the court concluded it was "impracticable" for Bedrosian to prosecute the case and inequitable to dismiss the action:
"[O]n 2/18/16 [sic], the [c]ourt vacated all pending hearings . . . . The [c]ourt's Register of Actions states that as of 2/18/16, all proceedings were stayed. Accordingly, due to such entry, it was 'impracticable' for the case to be prosecuted. It would also be inequitable for the [c]ourt to dismiss the action where [Bedrosian] relied upon the complete stay as reflected in the [c]ourt's official record."
H. Writ Proceedings
Mossy filed a petition for a writ of mandate. After considering Bedrosian's preliminary opposition, we issued an alternative writ. After we failed to receive from the superior court a new order in response to the alternative writ, on August 3, 2018 we issued an order to show cause and further ordered that all proceedings in the trial court were stayed pending further order of this court. Subsequently, Bedrosian filed a return and Mossy filed a reply.
The City filed a joinder in Mossy's writ petition.
In the reply, Mossy's lawyer advised us that on July 24, 2018, the superior court's register of actions indicated that in response to the alternative writ, the court vacated its order denying Mossy's motion to dismiss and entered a new order granting the motion to dismiss. However, counsel stated that two days later, that minute order and its accompanying proof of service "had somehow been removed" from the register of actions. Mossy's lawyer filed a motion in the superior court seeking clarification; however, apparently because our August 3, 2018 order stayed proceedings in the trial court, the superior court had not acted on Mossy's motion for clarification.
On September 26, 2018, we vacated the trial court stay for the limited purpose of directing the superior court to hear and rule on Mossy's motion for clarification at its earliest opportunity. After that hearing on October 26, 2018, the superior court issued an amended order indicating that the July 24, 2018 order was entered as a result of clerical error, that it was subsequently ordered stricken, and was "never finalized and never in effect."
DISCUSSION
I. THE FIVE-YEAR PERIOD WAS NOT TOLLED
A. The Basic Five-Year Rule
An action must be brought to trial within five years after it is commenced against the defendant. If not, dismissal is mandatory. (§§ 583.310, 583.360.) The purpose of the five-year requirement is to promote trial "before evidence is lost, destroyed, or the memory of witnesses becomes dimmed. The statutes also protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time." (General Motors Corp. v. Superior Court of Los Angeles County (1966) 65 Cal.2d 88, 91.)
Section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.360 provides: "(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. Tolling of the Five-Year Rule
1. Stay of all proceedings
The five-year period in which an action must be brought to trial is tolled by any period of time during which (1) the court's jurisdiction "to try the action was suspended" (§ 583.340, subd. (a)); (2) prosecution or trial of the action was "stayed or enjoined" (§ 583.340, subd. (b)); or (3) bringing the action to trial, "for any other reason, was impossible, impracticable, or futile." (§ 583.340, subd. (c).) The tolling statute is to be "liberally construed, consistent with the policy favoring trial on the merits." (Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502.)
A trial court stay may be either complete or partial. Only a complete stay of all proceedings tolls the running of the five-year period under section 583.340, subdivision (b). (Bruns, supra, 51 Cal.4th at p. 726; Gaines, supra, 62 Cal.4th at p. 1094.)
2. Partial stay
Partial stays (e.g., a stay on discovery only, while other aspects of the case move forward) are governed by section 583.340, subdivision (c), which "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, supra, 51 Cal.4th at p. 726.) Because this statute is designed to prevent avoidable delay, "'for the tolling provision of section 583.040 [subdivision] (c) to apply, there must be "a period of impossibility, impracticability or futility, over which plaintiff had no control."'" (Gaines, supra, 62 Cal.4th at p. 1102, italics omitted.)
"'The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.'" (Bruns, supra, 51 Cal.4th at p. 730.) "[T]he level of diligence required increases as the five-year deadline approaches." (Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336.)
3. The duty to monitor and correct clerical mistakes
"'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, scheduling or calendaring errors have occurred.'" (Gaines, supra, 62 Cal.4th at p. 1104.) "Because the correction of court calendaring errors are matters easily discoverable by the diligent plaintiff, the courts have refused to recognize such a circumstance as a basis for concluding that it was either 'impossible' or 'impracticable' to bring a case to trial." (Wilshire Bundy, supra, 228 Cal.App.3d at p. 1288.)
For example, in Wilshire Bundy, supra, 228 Cal.App.3d 1280, the plaintiffs appealed the dismissal of their action, contending that 315 days should have been excluded from the five-year period because the case had been removed from the civil active list by the clerk's mistake for that length of time. (Id. at p. 1286.) Although the docketing mistake was entirely the fault of court personnel (id. at p. 1284, fn. 6), the Court of Appeal affirmed the order of dismissal. The court held that exercising reasonable diligence to ensure that a case is brought to trial within the five-year deadline "includes the obligation to monitor the case in the trial court to ascertain whether any filing, scheduling or calendaring errors have occurred." (Id. at p. 1287.) The court noted, "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." (Ibid.) Indeed, the "greatest diligence is required" as the case approaches the five-year deadline. (Ibid.) Wilshire Bundy holds that a court clerk's docketing error is not "impossibility, impracticability, or futility" under section 583.340, subdivision (c) because a reasonably diligent plaintiff will discover and take action to correct such errors. (Id. at p. 1288.) The consequences of such clerical errors "are always avoidable by the exercise of diligence, and it is the duty of a plaintiff to oversee and monitor the progress of the case." (Id. at p. 1291.)
Karubian v. Security Pac. Nat. Bank (1984) 152 Cal.App.3d 134 stands for this same rule. There, plaintiffs claimed that a mistake by a Los Angeles county superior court clerk made it impossible for them to bring the case to trial within the five-year period. Specifically, plaintiffs filed a complaint in September 1975. In February 1977 another law firm substituted in as counsel, and in March 1977 a second substitution occurred. (Id. at p. 136.) Under the procedures for setting a case for trial in Los Angeles at that time, if after a "notice of eligibility" was issued by the clerk in each of two months, and no certificate or readiness was filed, the case would be removed from the civil active list. (Id. at p. 137.) In Karubian, the clerk mistakenly sent both notices of eligibility to the initial attorney of record, who failed to forward them to plaintiffs or their substituted counsel. (Id. at pp. 136-137.) As a result, plaintiff's lawyer did not file a certificate of readiness, and the clerk therefore removed the case from the civil active list. (Id. at p. 137.) When only 40 days of the five-year period remained, plaintiff moved to specially set the matter for trial, which the trial court denied. (Id. at p. 136.) The Court of Appeal affirmed, even though the clerk "had obviously 'goofed'" by sending the notice of eligibility to plaintiff's former counsel. (Id. at p. 139.) The court noted that counsel "by a single phone call, letter or visit to the clerk's office" could have discovered the status of the case in ample time to remedy the situation." (Id. at p. 140.) Plaintiff's ignorance of the status of the case, even though resulting from a misdirected notice by the clerk, did not render it impracticable to bring the matter to trial in time.
Central Mutual Ins. Co. v. Executive Motor Home Sales, Inc. (1983) 143 Cal.App.3d 791 is another case involving these same principles. There, the court clerk improperly set trial for a date after expiration of the five-year period. The Court of Appeal held that plaintiff's reliance on the clerk's mistake was no excuse because the critical question is whether a plaintiff used reasonable diligence in prosecuting the case. (Id. at p. 796.)
C. Analysis
The five-year period may be stayed in only three circumstances: (a) the court's jurisdiction to try the action is suspended; (b) prosecution or trial of the action is stayed; or (c) bringing the action to trial, for any other reason, is impossible, impracticable, or futile. (§ 583.340.)
Here, the five-year period cannot be tolled under section 583.340, subdivision (a) because Mossy's appeal from the preliminary injunction did not deprive the trial court of jurisdiction. (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884 [an appeal from a prohibitory injunction does not automatically stay trial court proceedings].)
The five-year period also cannot be tolled under section 583.340, subdivision (b). Under Bruns, supra, 62 Cal.4th 1094, this tolling provision only applies to a complete stay. The February 9, 2016 order stayed only "all current hearings." By stating, "Parties may appear ex parte to schedule hearings if the matter does not settle," that order contemplated that the lawyers would continue to prosecute the case towards settlement or trial. The order left it within the parties' power to reschedule the dispositive motions (and anything else) if the case did not settle. Accordingly, the February 9, 2016 order was not a complete stay and section 583.340, subdivision (b), therefore, does not apply.
The only potential basis for tolling the five-year period in this case is under subdivision (c) of section 583.340—that bringing the action to trial was "impossible, impracticable, or futile." Invoking these grounds, the trial court determined that because the register of actions erroneously stated that all proceedings were stayed, it was "impracticable" for Bedrosian to prosecute the case.
In reviewing this determination, "'[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.'" (Gaines, supra, 62 Cal.4th at p. 1100.)
Bedrosian contends an abuse-of-discretion standard applies. However, as explained in the text above, the standard of review is more nuanced.
Applying de novo review to the trial court's legal conclusion from undisputed facts, we determine that the court clerk's erroneous notation on the register of actions that all proceedings were stayed did not make it "impracticable" to bring the action to trial within the five-year rule. The "critical factor" in assessing impracticability is whether Bedrosian exercised reasonable diligence to get its action to trial within five years. (Bruns, supra, 51 Cal.4th at p. 730.) To exercise reasonable diligence, Bedrosian had "'an obligation to monitor the case in the trial court, to keep track of relevant dates, and to determine whether any filing, scheduling or calendaring errors have occurred.'" (Gaines, supra, 62 Cal.4th at p. 1104.) If such an error occurred, Bedrosian was required to act "with special diligence to ensure that the case is set for trial in a timely manner." (Wilshire Bundy, supra, 228 Cal.App.3d at p. 1287.)
Bedrosian had actual knowledge that on February 9, 2016, the court issued only a partial stay of "all current hearings." Accordingly, Bedrosian knew or should have known that the register of actions incorrectly stated that all proceedings were stayed. Despite that knowledge, and although settlement efforts broke down in November 2016, Bedrosian waited until March 12, 2018—just one day before the five-year period was set to expire—to call the court's attention to the mistake. As Mossy's counsel asserted below, at any point between February 9, 2016 and March 12, 2018, Bedrosian should have noted the discrepancy between the partial stay ordered February 9, 2016, and the complete stay noted on the register of actions, and contacted the court about it. Indeed, Bedrosian's counsel admits he reviewed the register of actions "at various times" since the February 9, 2016 order.
On these undisputed facts, the court erred in determining that it was impracticable to bring the case to trial within the mandatory five-year period. "Because the correction of court calendaring errors are matters easily discoverable by the diligent plaintiff, the courts have refused to recognize such a circumstance as a basis for concluding that it was either 'impossible' or 'impracticable' to bring a case to trial." (Wilshire Bundy, supra, 228 Cal.App.3d at p. 1288; see Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 994 ["errors which are readily ascertainable by the exercise of due diligence by the litigants will not serve to excuse the litigants from sufficiently monitoring their case in the trial court"].)
Asserting otherwise, Bedrosian contends he reasonably relied "on the [c]ourt's official record," i.e., the register of actions. However, that argument is untenable because the court's "official record" includes the February 9, 2016 order—which did not order a complete stay. Given the obvious conflict between the court's partial stay order of February 9, 2016, and the register of actions notation that all proceedings were stayed, the exercise of reasonable diligence compelled counsel to determine if a mistake had been made. (Gaines, supra, 62 Cal.4th at p. 1104.) Due diligence required Bedrosian to "check with the court at the first indication of a problem." (Hoffman, supra, 171 Cal.App.3d at p. 1107, italics omitted.) Because identifying the error in the register of actions and correcting it would have been easily accomplished by a diligent plaintiff, Bedrosian's failure to do so cannot be a basis for concluding it was "impracticable" to bring the case to trial within the five-year period. (Wilshire Bundy, supra, 228 Cal.App.3d at p. 1288.)
The parties dispute whether the online register of actions is the "official" record of the trial court. To resolve this case, we need not address that issue and express no opinion on that question. --------
Disagreeing with this conclusion, Bedrosian contends the writ petition should be denied because the five-year period was tolled under section 583.340, subdivision (b)—i.e., there was a complete stay. He asserts that the trial court made a factual determination that a "complete stay of the proceeding commenc[ed] in February 2016." Bedrosian contends there is "no evidence" that the "All Proceedings Stayed" notation was even a mistake. As proof, Bedrosian points to an e-mail from Mossy's attorney, which Bedrosian contends "confirms the parties' understanding of the complete stay of proceedings."
We reject Bedrosian's argument that there was a complete stay. The plain language of the February 9, 2016 order did not stay all proceedings, but only "all current hearings." Moreover, even assuming, for the sake of argument, that the February 9, 2016 order was ambiguous in this respect, the context in which the court entered that order shows the court did not intend to stay all proceedings. At the hearing on March 12, 2018, the court explained that it issued the February 9, 2016 order to prevent counsel from continuing to waste the court's time in preparing for hearings that the lawyers kept asking to be continued at the last minute. The court's clear intent was to vacate then-existing hearing dates while the parties continued prosecuting the case to either settlement or trial.
Indeed, at the March 12, 2018 hearing, the court stated that he did not recall issuing a complete stay and it is "not my normal practice . . . to stay cases." The court explained that "somebody in our system put it in as a stay" and the court acknowledged that the register of actions "says something and it's different than what . . . something else says . . . ." Later, at the hearing on May 18, 2018, referring to the "All Proceedings Stayed" entry in the register of actions, the court lamented that it had not found any case involving a situation where "the [c]ourt messes it up."
Furthermore, the court denied Mossy's motion to dismiss under section 583.340, subdivision (c)—stating it was "impracticable" for Bedrosian to prosecute the case within the five-year period. Necessarily, therefore, the court determined that only a partial stay was in effect. (Bruns, supra, 51 Cal.4th at p. 726.) If, as Bedrosian contends, the court had found a total stay was in effect, it would have denied the motion to dismiss under subdivision (b) of section 583.040, which applies to complete stays and does not require a finding of impracticability.
Finally, contrary to Bedrosian's assertions, Mossy's lawyer did not "confirm[]" that a total stay was in effect. The e-mail that Bedrosian relies upon is dated February 18, 2016—nine days after the court entered the partial stay order. It states, "I just spoke with . . . the calendar clerk for Judge Maas. She asked me to let both of you know that all motions/hearings are stayed pending further order of the court . . . . I just looked at the court website, and it now indicates that tomorrow's hearing is vacated." The e-mail recites that only "motions/hearings" are stayed—not that the entire case was stayed. Moreover, in the e-mail, Mossy's lawyer does not state he saw the "All Proceedings Stayed" notation in the register of actions. Rather, he "reviewed the [t]rial [c]ourt's website . . . ." This is consistent with the entries in the register of actions on the website, which show that on February 18, 2016 (the date of the e-mail), the hearing on the dispositive motions (set for February 19, 2016) was vacated.
Bedrosian also contends that the court correctly determined it was "impracticable" to prosecute the case because of "various delays and obstruction caused by Mossy and the City before the February 2016 stay, as well as delays and promises by Mossy relating to informal settlement after the February 2016 stay." Bedrosian asserts that prosecuting the case was delayed because settlement was complex, complicated, and would have required governmental approvals. However, impracticality requires a factual determination of "'"excessive and unreasonable difficulty or expense"' in light of all the circumstances in [the case]." (Bruns, supra, 51 Cal.4th at p. 731.) The record here contains no such findings.
After ruling that the erroneous "All Proceedings Stayed" entry in the register of actions made it "impracticable" to prosecute the case, the court added, "It would also be inequitable for the [c]ourt to dismiss the action where [Bedrosian] relied upon the complete stay as reflected in the [c]ourt's official record."
Based on that sentence, Bedrosian asserts the court "correctly applied equity and estoppel in denying the motion to dismiss." We disagree. The court's statement reflects the view that a party should be able to reasonably rely on the case status as reflected in the register of actions. In general, that may well be true. We need not and do not decide that point. But the critical and distinguishing fact here is that Bedrosian had actual knowledge of the February 9, 2016 partial stay order. As explained ante, under these circumstances the duty to exercise reasonable diligence required Bedrosian to notice the discrepancy and contact the court about it. (Wilshire Bundy, supra, 228 Cal.App.3d at p. 1286; Gaines, supra, 62 Cal.4th at p. 1104.) Bedrosian's failure to exercise reasonable diligence precludes an equitable basis for tolling the five-year period under section 583.040, subdivision (c).
Bedrosian further contends "it was impracticable to bring the case to trial during Mossy's and the City's prior appeal." However, the trial made no such finding and, as a reviewing court, we will not make such findings for the first time here. (Gaines, supra, 62 Cal.4th at p. 1100 [question of 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"'"].) Moreover, to the extent the trial court considered the effect of the prior appeal, the court rejected Bedrosian's argument and determined the appeal did not result in any tolling of the five-year period.
In a related argument, Bedrosian contends that the parties "stipulated and agreed" that the prior appeal made it impracticable to bring the case to trial. However, this argument misstates the record. The referenced stipulation, dated August 11, 2014, was to continue the trial date for five months. In the recitals, the parties stated that because of the time required to resolve the appeal, a five-month continuance was needed to afford sufficient time for discovery, trial preparation, and to explore settlement. Contrary to Bedrosian's assertion, this was not a stipulation to toll the five-year period under section 583.040, subdivision (c). When the delay involves the time necessary for the parties to conduct "ordinary incidents of proceedings leading up to the trial, the interference must deprive the plaintiff of a '"substantial portion" of the five-year period for prosecuting the lawsuit' in order to qualify as a circumstance of impracticability." (Gaines, supra, 62 Cal.4th at p. 1102.) This is because ordinary delays are already accounted for in the five-year period. (Ibid.) The parties stipulated that more time was needed for ordinary steps in litigating the case. The stipulation—entered into in 2014—was not any admission or agreement that getting the case to trial in March 2018 was impracticable.
D. The City's Joinder
Bedrosian contends the City's joinder in Mossy's petition is improper and "[n]o relief should be afforded to the City." Bedrosian asserts the City should have filed its own writ petition or alternatively should have been expressly made a copetitioner in Mossy's petition.
Generally, "[a]ny coparty who wants to join in the writ petition should expressly be made a copetitioner (or file a separate writ petition)." (Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018), § 15:141, p. 15-88, italics omitted.) However, nothing of substance would have been gained by requiring the City to have copied and pasted Mossy's petition into a separate filing under its own name. Accordingly, we treat the City's joinder as, in effect, a supplemental petition for writ of mandate. (See Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300, fn. 5 [treating joinder in writ of mandate petition as a supplemental petition for writ of mandate and affording affirmative relief].)
DISPOSITION
Let a writ of mandate issue commanding the superior court to vacate its May 18, 2018 order denying Mossy European Imports, Inc.'s motion to dismiss and enter a new order granting that motion. The previously ordered stay is dissolved. In the interests of justice (see fn. 4, ante), each side is to bear its own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
NARES, J. WE CONCUR: McCONNELL, P. J. AARON, J.