Opinion
A166526
05-01-2024
CECILIA A. PORTILLO-CARDOZA et al., Plaintiffs and Appellants, v. FOX TRANSPORTATION, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. RG16843364)
BURNS, J.
Plaintiffs Cecilia A. Portillo-Cardoza and Jorge Santacruz appeal from the trial court's order denying plaintiffs' motion to advance trial and dismissing a certified class action for failure to timely prosecute. Plaintiffs insist that the trial court erred by dismissing the action and that, in the alternative, their non-class claims should not have been dismissed because they could have been tried before the expiration of the five-year deadline (Code Civ. Proc., § 583.310) without unreasonable prejudice to defendants. Finding no abuse of discretion, we affirm.
Undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
A.
On December 21, 2016, Portillo-Cardoza and Santacruz filed a class action complaint, on behalf of themselves and a proposed class of non-exempt drivers, against Fox Transportation, Inc. (Fox), its payroll administrator Peoplease, LLC, and the individual defendants (Michael Fox, Mary Anne Fox, Alexandra Fox, Miguel Cuevas, and Jesus Cuevas) (collectively, defendants).
Plaintiffs alleged, among various wage and hour violations, that Fox's non-exempt drivers were shorted overtime wages and denied meal and rest breaks without paying additional wages. They also alleged Fox deducted time from wages to create the false appearance of having provided such breaks. Plaintiffs further alleged that defendants violated the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) by failing to disclose available sick leave on wage statements, and by failing to provide mandated sick leave to employees.
Plaintiffs sought to prosecute these Labor Code violations both as a class action, under Code of Civil Procedure section 382, and as a representative action for civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Portillo-Cardoza and Santacruz also alleged individual retaliation and wrongful termination claims.
Discovery proceeded slowly. Within six months of filing their action, plaintiffs propounded written discovery to Fox and Peoplease that sought, among other things, information and documents relating to the identification of Fox's non-exempt employees, their hours worked, and pay records. Fox and Peoplease began responding to the written discovery, in 2017, but additional requests were propounded, and Fox did not complete its response until 2021. Plaintiffs never filed a motion to compel. Nor did they notice a deposition until October 2020.
More than four years after plaintiffs filed their complaint, Fox proposed, in a joint case management statement, January 2021 as the deadline for plaintiffs to file their motion to certify a class. However, that date was pushed back several times due to delays in completing Fox's "person most qualified" deposition. The parties ultimately set the deadline for filing a motion for class certification as February 10, 2022 and extended the five-year deadline from December 21, 2021 to December 21, 2022.
B.
More than five years after filing their complaint, on February 10, 2022, plaintiffs moved for class certification.
The trial court itself raised the five-year rule (§ 583.310) and its impact on class certification. The trial court expressed skepticism that a class action, if certified, could get to trial within the five-year period-which plaintiffs had mistakenly identified in their certification motion as expiring on September 16, 2022- while also providing the defendants with an opportunity to move for summary judgment, and invited supplemental briefing on the issue.
Defendants filed supplemental briefing in which they argued that inadequate time remained before September 16, 2022 to afford them a fair opportunity to defend against class claims because they would not have an opportunity to conduct merits discovery given class notice and opt-out periods as well as the statutory deadline for filing a summary judgment motion. They argued that their opportunity to present a defense should not be compromised because the plaintiffs were not diligent in seeking class certification and that the court should consider as much in its certification ruling-specifically with respect to manageability and adequacy of class counsel. Defendants proposed December 14, 2022 as "a more realistic . . . albeit admittedly aggressive" trial date. They asserted that this was "the earliest that this matter could reasonably be ready for trial." (Italics added.)
Plaintiffs' supplemental briefing pointed out that defendants had already agreed, in 2019, to extend the five-year deadline to December 21, 2022. Plaintiffs suggested this alleviated defendants' concerns and that, in any event, the approach of the deadline should not be considered at the certification stage.
The trial court ultimately granted (in part) plaintiffs' class certification motion on June 22, 2022. The trial court granted the certification motion only with respect to the meal/rest period claims and the claims involving failure to disclose sick time on wage statements. With respect to these claims, the court certified a class of all current and former non-exempt, noncommercial drivers who were employed by Fox, and/or during the time Peoplease was allegedly a joint employer with Fox, between December 21, 2012 and April 20, 2022. The court otherwise denied the motion for class certification (with respect to two of the proposed class claims), on the ground that neither named plaintiff was a typical or adequate representative.
In its class certification order, the trial court stated it would not have certified any class if it was not possible to timely proceed to trial, because that would be an "idle act." It repeatedly said that the case must proceed to trial by the agreed expiration of the five-year period, which was December 21, 2022. The court said trial within that time frame was "plausible" but cautioned that "[t]he case must move quickly." The court also reminded the plaintiffs that "delay in filing a motion for class certification arguably cannot have the effect of depriving the defendant of the opportunity to file a motion for summary judgment directed at the certified class," that it "might not grant trial preference," and that it "will not be inclined to meet the five-year deadline by starting the trial with a ceremonial start." Plaintiffs provided notice to the class in July 2022. The opt-out period expired on August 31, 2022.
C.
Meanwhile, around the same time that notice was provided to the class, the trial court held a case management conference at which it requested further briefing from the parties regarding trial feasibility. In response, defendants argued that a class action trial before the end of the year would unfairly prejudice them in defending the class or representative PAGA claims because they would not be able to conduct sufficient depositions or move for summary judgment after expiration of the opt-out period.
Plaintiffs, on the other hand, suggested that defendants had unreasonably failed to conduct PAGA discovery previously, as there had been no order bifurcating class and merits discovery, and because PAGA claims brought on the state's behalf are not subject to class certification requirements. Plaintiffs also insisted that defendants' discovery plan was not feasible and suggested surveys in lieu of depositions. After holding a hearing, the trial court determined, on July 27, 2022, it was not feasible to try the case by December 21, 2022 and, over defendants' objections, set a trial date of April 7, 2023. The trial court made clear that its ruling was "without prejudice to the plaintiff[s] bringing a motion asking that the PAGA case start [sooner]."
In response, on August 9, 2022, plaintiffs filed a motion to advance trial (§ 36, subd. (e)) and to bifurcate (§ 1048, subd. (b)), arguing that trial of the PAGA claim alone should commence before the expiration of the statutory deadline and that trial of the class claims could then follow on a more relaxed timeline. Plaintiffs argued that defendants' prejudice position-that they would not have a fair opportunity to defend the class claims if they were tried before April 2023-did not apply to the representative PAGA claims because defendants had no excuse for failing to conduct discovery (before certification) as class certification requirements do not apply.
Defendants, in turn, filed motions to dismiss the action in its entirety for failure to bring the case to trial within five years (§§ 583.310, 583.360). Plaintiffs submitted opposition briefing in which they argued that COVID-19 courtroom closures made bringing the case to trial impossible, impracticable, or futile, within the meaning of section 583.340, subdivision (c), and that any dismissal should be of the class claims only.
In a detailed order, the trial court denied plaintiffs' motion to advance trial. In doing so, the court explicitly found that plaintiffs had not been diligent in filing their motion for class certification and that defendants' opportunity to present a defense would be prejudiced-because defendants would have insufficient time between class certification and a December 2022 trial to file summary adjudication motions and to conduct depositions of a statistically significant number of randomly selected class members. The court further concluded that defendants had acted reasonably in waiting for class certification before taking merits discovery on the "largely overlapping" PAGA and class claims. The trial court also rejected plaintiffs' argument that the five-year period should be tolled pursuant to section 583.340, subdivision (c), and granted defendants' motions to dismiss, under both mandatory and discretionary dismissal provisions.
DISCUSSION
Plaintiffs contend that, for numerous reasons, the trial court abused its discretion by refusing to advance the trial date and by granting defendants' motions to dismiss. They fail to show an abuse of discretion. (See Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 (Gaines) [standard of review]; Salas v. Sears, Roebuck &Co. (1986) 42 Cal.3d 342, 344 (Salas) [same].)
A.
An "action" must be brought to trial within five years (§ 583.310) or it "shall be dismissed" (§ 583.360, subd. (a).) A trial court also has discretion to dismiss, on its own motion, an action for delay in prosecution if it has not been brought to trial within three years after it was commenced. (§§ 583.410, 583.420, subd. (a)(2)(A).)
In computing the time in which the action must be brought to trial, the court must exclude any time during which "[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile." (§ 583.340, subd. (c).) "Absent a qualifying stipulation . . . or tolling of the allowed five-year period, dismissal of an action that has not reached trial at the end of five years is mandatory under section 583.360." (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 322.) Accordingly, "anyone pursuing an 'action' in the California courts has an affirmative obligation to do what is necessary to move the action forward to trial in timely fashion." (Ibid.)
Class action plaintiffs owe a duty of diligence just like any other plaintiffs. (See Warner Bros. Entertainment Inc. v. Superior Court (2018) 29 Cal.App.5th 243, 263, 266-270 (Warner Bros.); Standard Oil Co. v. Superior Court (1976) 61 Cal.App.3d 852, 857; Massey v. Bank of America (1976) 56 Cal.App.3d 29, 3233 (Massey).) In fact, it is essential for plaintiffs to establish the class early in the proceedings because, until the class is determined, defendants cannot tell what the action involves, and members of the class will not receive notice of the action or be bound by any judgment. (Home Sav. &Loan Assn. v. Superior Court (1974) 42 Cal.App.3d 1006, 1010.)
Reasonable diligence in prosecution is the critical factor to be considered when a plaintiff seeks to avoid discretionary dismissal (Howard v. Thrifty Drug &Discount Stores (1995) 10 Cal.4th 424, 443-444 (Howard)), as well as when a trial court decides whether to toll the five-year statute under section 583.340, subdivision (c) (Gaines, supra, 62 Cal.4th at p. 1100; Warner Bros., supra, 29 Cal.App.5th at pp. 243, 266) and whether to grant a motion for trial preference. (Salas, supra, 42 Cal.3d at p. 347; Warner Bros. at p. 266.) Under the abuse of discretion standard applicable to all these decisions, we review the trial court's findings of fact for substantial evidence, its conclusions of law de novo, and we uphold its application of the law to the facts unless it is arbitrary and capricious. (Gaines, at p. 1100.)
B.
First, we address the plaintiffs' assertion that defendants were judicially estopped from arguing, in their motions to dismiss and in opposition to the motion to advance, that they could not be prepared for trial by December 2022. Plaintiffs also make a related argument that defendants "waived" their right to seek dismissal under the five-year deadline by purportedly asking for, in July 2022, an April 2023 trial date. Neither argument has merit.
In response to the COVID-19 pandemic, the Judicial Council of California enacted emergency rule 10, which provides (in relevant part): "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." (Cal. Rules of Court, appen. I, emergency rule 10(a), italics added.) Presumably because the parties had already stipulated to extend the deadline to December 21, 2022-a total of six years after the action was filed-plaintiffs do not argue that emergency rule 10(a) automatically extends the time to bring their action to trial to June 21, 2023. Any such argument is forfeited. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 597.)
Judicial estoppel prevents a party from taking two "totally inconsistent" positions when"' "such positional changes have an adverse impact on the judicial process." '" (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181, 183.) "Waiver is the intentional relinquishment or abandonment of a known right." (Warner Bros., supra, 29 Cal.App.5th at p. 260, italics added.)
Here, defendants' two positions are not totally inconsistent. (See Jackson, supra, 60 Cal.App.4th at p. 182 ["for the [judicial estoppel] doctrine to apply, the seemingly conflicting positions 'must be clearly inconsistent so that one necessarily excludes the other' "].) In their supplemental briefing in opposition to class certification, defendants said December 14, 2022 was "a more realistic . . . albeit admittedly aggressive" trial date. And they asserted that this was "the earliest that this matter could reasonably be ready for trial." (Italics added.) This position was clearly premised on an assumption that a class would be certified in April 2022. However, when plaintiffs' class certification motion was not granted until June 2022, and class notice and opt-out periods were pushed back accordingly, defendants were justified in revising their position.
Nor did defendants waive their rights to enforce the five-year rule. Section 583.330 allows parties to extend the statutory deadline (Nunn v. JPMorgan Chase Bank, N.A. (2021) 64 Cal.App.5th 346, 354) by written stipulation or "[b]y oral agreement made in open court, if entered in the minutes of the court or a transcript is made." (§ 583.330, subd. (b).) In July 2022, defendants did not agree to a 2023 trial date or even propose a trial date. Instead, they argued that they could not reasonably defend themselves at trial in 2022, expressly objected to continuing trial beyond the five-year deadline, and asked the trial court to dismiss the action. The trial court set the trial for April 2023 over both plaintiffs' and defendants' objections.
C.
Turning to the heart of the matter, plaintiffs argue that, in denying their motion to advance trial, the trial court abused its discretion because defendants would suffer no undue prejudice by proceeding to trial before the December 21, 2022 deadline. Plaintiffs fail to persuasively challenge the trial court's findings on reasonable diligence and instead attempt to shift the burden to defendants-arguing that defendants have no excuse for failing to obtain the discovery needed to defend the PAGA or individual claims. Their argument lacks merit.
1.
The trial court's decision on a motion for preferential trial setting "rests at all times in the sound discretion of the trial court in light of the totality of the circumstances." (Salas, supra, 42 Cal.3d at p. 344.) Even when the five-year deadline is looming, the trial court is not required to set a preferential trial date. (Id. at pp. 346, 349.) The trial court should consider four factors: "(1) the plaintiff's diligence or lack thereof; (2) prejudice to the defendant of an accelerated trial date; (3) the condition of the court's calendar; and (4) the likelihood of eventual mandatory dismissal if the early trial date is denied." (Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1164-1165; accord, Salas at p. 349.) The interests of justice "weigh heavily against disposing of litigation on procedural grounds" if the plaintiff presents a persuasive excuse for their delay. (Salas at p. 347.)
2.
Here, the trial court expressly found that plaintiffs had not diligently prosecuted the action and lacked any reasonable excuse for their delay. Plaintiffs do not explicitly argue that this finding is unsupported by substantial evidence. Instead they blame the defendants, who plaintiffs claim unreasonably delayed responding to discovery that plaintiffs needed to certify the class.
Plaintiffs' assertion squarely conflicts with the trial court's diligence finding, which is amply supported by the undisputed fact that, despite defendants' purported obstruction of class discovery for over three years, plaintiffs never filed a motion to compel. (See Warner Bros., supra, 29 Cal.App.5th at p. 268; San Bernadino City Unified School Dist. v. Superior Court (1987) 190 Cal.App.3d 233, 239 [burden of efficiently moving case to trial is plaintiff's alone]).) In complex cases, discovery delays are par for the course and do not excuse a plaintiff from diligently prosecuting the case. (Warner Bros. at p. 268.)
To avoid the conclusive nature of the trial court's finding- and its cascading effect on all the other arguments raised on appeal-plaintiffs try a different tack. They argue that the trial court abused its discretion because, if it was not inclined to advance the trial date for the entirety of the action, it could instead have advanced the trial for their individual and PAGA claims and dismissed only the class claims under the five-year statute. The court was compelled to do this, they reason, because the resulting smaller, simpler action could have been tried before the five-year deadline without prejudice to the defendants, who purportedly have no excuse for not conducting discovery on those claims earlier. Essentially, they are arguing that section 583.310 required the trial court to assess the plaintiffs' diligence and the defendants' prejudice for each claim rather than for the entire action, to dismiss only those claims that have not been diligently prosecuted, and to advance trial on the others.
Although we need not reach the issue, plaintiffs fail to persuade us that it was unreasonable for defendants to delay all merits discovery on plaintiffs' overlapping claims until after class certification. Plaintiffs also forfeited the argument they belatedly raised at oral argument-that due process concerns necessitate application of a claim-by-claim analysis when a PAGA claim is at stake-by failing to raise the argument in the trial court or in their opening brief on appeal. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)
Plaintiffs mistakenly rely on Massey, supra, 56 Cal.App.3d 29. Massey involved a putative class action that had been pending for more than four years and 10 months when the trial court ordered dismissal of "the class aspect of the case." (Id. at p. 32.) One week later, the trial court granted the defendant's motion for summary judgment on the plaintiff's remaining (individual) cause of action. (Ibid.) The court of appeal affirmed both orders. (Id. at pp. 33-34.) Although the case involved a dismissal of just the "class aspect" rather than the entire action, Massey does not help plaintiffs because it did not consider, much less endorse, a claim-by-claim approach to diligence, nor did it involve a dismissal of class claims so that trial could be advanced on individual claims. (See id. at pp. 32-34.) Cases are not authority for propositions not considered or issues not presented by their facts. (McConnell v. Advantest America, Inc. (2023) 92 Cal.App.5th 596, 611.)
In any case, we agree with Fidelity National Home Warranty Co. Cases (2020) 46 Cal.App.5th 812, 850 (Fidelity), that there is "[n]othing in the text of the mandatory dismissal statutes [that] supports the conclusion that courts may dismiss individual causes of action or 'aspect[s].'" The statute requires dismissal of an "action"-which refers to the entire judicial proceeding-as opposed to a cause of action. (Id. at pp. 849-850; § 583.310; see also, id. at pp. 849-850 [raising "serious questions" about whether Massey correctly concluded that a court may dismiss the" 'class aspect of the action' ", italics omitted].)
As Fidelity notes, the court in Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 322, 325, made an exception, but the facts were entirely different: it held that a court may decline to dismiss individual causes of action, added long after the original complaint was filed, when the new claims do not relate back to the original claims. (Fidelity, supra, 46 Cal.App.5th at p. 850, fn. 56.)
This interpretation certainly makes sense here. The plaintiffs chose to bring a large, complicated action that joins together class claims, PAGA claims, and individual claims, then failed to prosecute it diligently for years. They did not dismiss the class claims to speed up the case. We don't see why the trial court, at the eleventh hour, was required to do so. This case is an ordinary application of the five-year statute, where the plaintiffs are the authors of their own misfortune.
Because the trial court's diligence finding is supported by substantial evidence, and "some showing of excusable delay" is necessary to support a motion for trial preference (Salas, supra, 42 Cal.3d at pp. 347, 349), the trial court did not abuse its discretion in denying plaintiffs' motion to advance trial. (See Warner Bros., supra, 29 Cal.App.5th at pp. 266-270 &fn. 15 [writ of mandate issued to vacate order granting trial preference and to compel dismissal of class action where plaintiffs failed to demonstrate diligence]; Parlen v. Golden State Sanwa Bank (1987) 194 Cal.App.3d 906, 912 ["the policy favoring trial on the merits does not prevail" when the plaintiff makes no showing of reasonable diligence or excusable delay].)
Nor did the trial court abuse its discretion in rejecting a ceremonial start on this record. (See Warner Bros., supra, 29 Cal.App.5th at p. 265 ["this 'safety valve[] against unjust dismissals' . . . [does not] apply to circumstances where the plaintiffs were never ready for trial, and where the court found the plaintiffs did not exercise reasonable diligence in bringing the case to the point of class certification"].)
D.
By failing to challenge the trial court's ruling on discretionary dismissal in their opening brief, plaintiffs have forfeited any argument that the trial court abused its discretion. (Champir, LLC v. Fairbanks Ranch Assn., supra, 66 Cal.App.5th at p. 597; Howard, supra, 10 Cal.4th at p. 443 ["burden is on the party challenging the trial court's decision to show that the court abused its discretion"].)
In any event, a motion for a preferential setting and a discretionary motion to dismiss for failure to prosecute raise the same issues. (Salas, supra, 42 Cal.3d at p. 346; accord, Cal. Rules of Court, rule 3.1342(e); Dick v. Superior Court, supra, 185 Cal.App.3d at p. 1164.) Having concluded that the trial court's diligence findings are supported by substantial evidence, we need not separately consider the court's decision to grant discretionary dismissal under section 583.410. (See Howard, supra, 10 Cal.4th at pp. 443-444 ["the fact that defendant made no showing of prejudice is not determinative: when a plaintiff fails to make a showing of excusable delay, the trial court remains within its discretion in dismissing the case despite the lack of actual prejudice"]; Warner Bros., supra, 29 Cal.App.5th at p. 269.)
We need not reach any of the parties' additional arguments.
Plaintiffs argue that the trial court abused its discretion-in ruling the action was subject to mandatory dismissal-by refusing to toll, pursuant to section 583.340, subdivision (c), 184 days that courtrooms were purportedly closed because of COVID-19. We need not address this argument because the amount of time at issue is sufficient only to affect the court's alternative mandatory dismissal analysis. (See Fidelity National Home Warranty Co. Cases, supra, 46 Cal.App.5th at pp. 817, 851-852 [reversal of dismissal order not required because even if trial court had excluded 135 days in which it was impractical to bring class action to trial, three-year period had expired]; compare § 583.310 with §§ 583.410, 583.420, subd. (a)(2)(A).) In any event, because plaintiffs were not ready for trial at the time of the purported court closures, they cannot establish an abuse of discretion. (See Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240, 247-248, 250; Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1421 [five-year period in which to bring case to trial not tolled under section 583.340, subdivision (c), by "moratoriums" on civil trials because "these moratoriums did not prevent or interfere with plaintiffs' prosecuting their case" and "[i]t is apparent from the record that plaintiffs were not ready for trial at the time of the moratoriums"].)
DISPOSITION
The order granting defendants' motion to dismiss and denying plaintiffs' motion to advance trial is affirmed. The parties shall bear their own costs on appeal. (Lab. Code, § 218.5, subd. (a); Cal. Rules of Court, rules 8.278(a)(1).)
WE CONCUR: JACKSON, P. J., CHOU, J.