Opinion
A166795
11-02-2023
TONY FU, Plaintiff and Appellant, v. KAMAN LIU, Defendant and Respondent.
NOT TO BE PUBLISHED
Filed 11/28/23
(San Francisco City & County Super. Ct. Case No. CGC116553702)
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
THE COURT [*]:
It is ordered that the opinion filed herein on November 2, 2023, be modified as follows:
At page 4, at the conclusion of the second paragraph, the following is inserted as footnote 2: "August 12, 2022 was the original hearing date for the first motion for mandatory dismissal filed by Liu, but this discrepancy in dates is immaterial." The remaining footnotes on pages 7 and 12 shall be renumbered accordingly.
At page 13, the first two sentences of the third full paragraph are deleted. In their place, the following sentence is inserted: "On March 15, 2022, Fu appears to have filed a request to enter default against Liu, and on the same day, the court clerk notified him that his request for entry had been rejected due to errors in the filing."
The petition for rehearing filed November 17, 2023, is denied. There is no change in the judgment. Dated: A166795
Petrou, J.
Plaintiff and appellant Tony Fu's complaint against defendant and respondent Kaman Liu was dismissed pursuant to Code of Civil Procedure section 583.310 et seq. for failure to bring the action to trial within five years. On appeal, Fu urges us to overturn the five-year dismissal order, arguing the trial court erroneously failed to toll the five-year clock under section 583.340 based on removal of the case to federal bankruptcy court, two bankruptcy stays, a period in which Liu was in default status, and a discovery dispute. We conclude the trial court erred in not tolling the time the action was removed to federal bankruptcy court, but in all other respects, the trial court did not err. We affirm.
Further unspecified statutory references are to the Code of Civil Procedure.
Factual and Procedural Background
The Underlying Action
Fu, a self-represented litigant, commenced this action on August 15, 2016 with the filing of his original complaint. He filed the operative Second Amended Complaint (SAC) on October 19, 2021. Fu asserted multiple causes of action including fraudulent transfer, conspiracy to defraud, and unfair business practices against several defendants, including Liu, Demas Yan a/k/a/ Dennis Yan, and Thai Ming Chiu. Fu alleged that Yan was a vexatious litigant against whom he had secured over $220,000 in judgments and sanctions which had not been paid. He further alleged that Yan had fraudulently transferred assets to his brothers-in-law Liu and Chiu and others to conceal them from satisfying the outstanding judgments.
On April 26, 2017, Liu filed a cross-complaint, seeking to enforce a money judgment against Fu which Liu alleged had been assigned to him, and asserting additional claims against Fu and others for fraudulent conveyance, conspiracy, and aiding and abetting fraud.
On May 5, 2017, Fu filed for bankruptcy. He prepared a "Notice of Stay of Proceedings," checking the box on the Judicial Council form that the case was stayed "[w]ith regard to all parties" due to his bankruptcy filing; he filed the notice on May 8, 2017. The case was removed to federal bankruptcy court on May 19, 2017 and remanded back to the superior court on August 21, 2017.
One week after remand, Liu's counsel filed a "Notice of Termination or Modification of Stay." Liu represented the stay Fu had earlier noticed had been vacated by the order of another court. Disagreeing that the stay had been terminated, Fu filed a motion in the bankruptcy court requesting it set a termination date for the stay. In a written order captioned "Order Denying Debtor's Motion to Set Stay Termination Date," the bankruptcy court denied Fu's requested relief but clarified that it had only remanded the case without granting relief from the stay to any party or terminating it. From the trial court, Fu obtained an "Order to Enjoin and to Ban Kaman Liu's August 28, 2017 Notice of Termination of Stay," in which the court found Liu's notice was a fraud and enjoined it. In the months that followed, little litigation activity took place in the case.
On January 13, 2020 - approximately two years and nine months after filing for bankruptcy - Fu's bankruptcy proceeding was discharged. Following the discharge, Fu proceeded to prosecute the case. For instance, in August 2020, upon receiving leave to amend his pleading, he filed his First Amended Complaint. In September 2021, he again requested permission to amend and was granted leave to file his SAC, which Fu filed in October 2021. In February 2022, Fu deposed Liu following a successful motion to compel his appearance. Additionally, in March 2022, Fu filed a request to enter default against Liu for his failure to respond to the SAC, though the court eventually set aside Liu's default in June 2022.
On July 13, 2022, in response to an order to show cause, Fu informed the court that "the case [was] ready for trial. Moving forward, the Court is pleased to set a trial date for the case."
On July 21, 2022, Liu filed his first motion for mandatory dismissal of the case for Fu's failure to bring it to trial within five years as required by section 583.310. The motion was taken off calendar for procedural defects.
On August 2, 2022, Fu filed a motion requesting the court set a trial date. On August 10, 2022, Liu's co-defendant Chiu filed for bankruptcy. Fu represents that because of Chiu's bankruptcy, he took his request to set a trial date off calendar.
On September 12, 2022, Liu re-filed his motion for mandatory dismissal. Following further briefing and a hearing, the trial court granted the motion and dismissed the case on October 18, 2022. In explaining dismissal, the court stated Fu had failed to bring his case to trial within five years and that the Bankruptcy Code did not stay actions brought by the bankruptcy debtor.
Fu unsuccessfully moved for reconsideration. The court's one-page order stated that Fu had failed to sustain his burden on reconsideration under section 1008 and that "even if the arguments regarding tolling (arguments that could have been, but were not made previously) were considered, [Fu] failed to show that 5 years would not have run before October 7, 2022, the date of the original hearing."
This appeal followed.
Discussion
I. Applicable Law
A. Appellate Rules
" 'A judgment . . . of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We affirm the judgment if any possible grounds exist for the trial court to have reached its factual conclusions. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630631.) And any ambiguity in the record is resolved in favor of the judgment. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 765-766.)
Self-represented litigants must follow and are held to the same rules of procedure as litigants represented by counsel. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.)
B. The Five-Year Dismissal Rule
Section 583.310 states that "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." (§ 583.310.) If that does not occur, dismissal is required under section 583.360: "(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." (§ 583.360; Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1089-1090 (Gaines).)
The permissible time period under section 583.310 is extended under certain circumstances set forth in section 583.340: "In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time 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 first two factors - suspension of jurisdiction and stay of the action - generally present legal issues that do not involve the exercise of discretion. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 726 (Bruns); Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 358-359 (Spanair); see also Gaines, supra, 62 Cal.4th at p. 1092.)
The third factor - bringing the action to trial was "impossible, impracticable, or futile" - is subject to the trial court's broad discretion. (§ 583.340, subd. (c); Hughes v. Kimble (1992) 5 Cal.App.4th 59, 71 (Hughes); see also Gaines, supra, 62 Cal.4th at p. 1100 [" 'The question of impossibility, impracticability, or futility is best resolved by the trial court, which "is in the most advantageous position to evaluate" '" the numerous factual matters relevant to the delay issues.].) Courts evaluate impossibility, impracticability, or futility based on all the circumstances of a particular case, with a particular focus on whether the plaintiff diligently prosecuted the action. (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 323.)"' "[I]mpracticability and futility" involve a determination of" 'excessive and unreasonable difficulty or expense,'" in light of all the circumstances of the particular case.'" (Id. at pp. 323-324.)
In evaluating tolling arguments, the court must consider the general policy favoring trial on the merits but where the action is pending longer than the mandatory five-year deadline and is not subject to tolling, the mandatory dismissal rule must be followed. (Gaines, supra, 62 Cal.4th at pp. 1090, 1105.) The requirement of diligent prosecution of litigation protects the public by "declogging court calendars" (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1195-1196) and protects defendants from defending against stale and potentially unmeritorious claims for unreasonable periods of time (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447).
Our review of the trial court's determination of whether section 583.310 was tolled for impossibility, impracticability, or futility is limited to a review for abuse of discretion. (Bruns, supra, 51 Cal.4th at p. 723; see also Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271 [reversal appropriate only if there was no reasonable basis for the trial court's determination].)
C. COVID Emergency Rule
In or around April 2020, in light of the COVID pandemic, the Judicial Council adopted Emergency Rule 10(a), which states: "Notwithstanding any other law, including Code of Civil Procedure 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).)
II. Analysis
Fu commenced this action on August 15, 2016. Normally, that would mean he had until August 15, 2021 to bring his case to trial. That period was extended by six months, to February 15, 2022, due to the Judicial Council Emergency Rule, discussed ante.
We recognize that the Judicial Council Emergency Rule 10(a) gave Fu five years and six months to bring his case to trial, but for ease of reference, we will continue to refer to the statutory requirement in terms of five years. The additional six months will be clearly accounted for in our final calculation, infra.
Fu argues that less than five years had elapsed before Liu moved for dismissal (July 21, 2022) and less than five years had elapsed before codefendant Chiu filed for bankruptcy (August 10, 2022). We conclude the trial court erred in not tolling the time period the action was removed to federal bankruptcy court. In all other respects, we find the trial court did not err in finding no tolling and affirm the judgment of dismissal.
A. Removal Period Is Excluded
As Fu contends and Liu does not dispute, the 102 days the case was removed to federal bankruptcy court - May 19, 2017 through August 29, 2017 - should be excluded from the five-year calculation. (§ 583.340, subd. (a); see also Spanair, supra, 172 Cal.App.4th at p. 356 [excluding from statutory period to bring case to trial period of removal of case to federal district court]; cf. In re Princess Louis Corp. (1987) 77 B.R. 766, 772 ["From the time of removal to the time of any remand, the state court lacks jurisdiction to try the state court action. Thus, this Court's retention of the entire removed action for a period of time will not prejudice the parties' rights under the five-year rule."].)
B. Bankruptcy Proceedings Periods Are Not Excluded
Fu erroneously contends that two separate bankruptcy proceedings stayed the statutory clock to trial: (1) Fu's bankruptcy filing on May 5, 2017 which was ultimately discharged on January 30, 2020; and (2) the bankruptcy filed by Liu's co-defendant Chiu on August 10, 2022 that remained pending through the time Fu's complaint was dismissed.
1. Fu's Bankruptcy
A plaintiff cannot stay an action he brought against others by filing for bankruptcy. "The Bankruptcy Act provides that the commencement or continuation of any legal proceeding against the debtor is automatically stayed by the filing of a petition in bankruptcy, until adjudication or dismissal of the petition." (Danielson v. ITT Industrial Credit Co. (1988) 199 Cal.App.3d 645, 652 (Danielson) (emphasis added)); 11 U.S.C. § 362(a)(1).) "The automatic stay is applicable only to proceedings against the debtor." (In re Miller (9th Cir. 2005) 397 F.3d 726, 729.)" '[A] debtor's cause of action is not tolled by the filing of a bankruptcy petition.'" (Shorr v. Kind (1991) 1 Cal.App.4th 249, 254.) Subject to certain exceptions inapplicable here, "nothing in the Bankruptcy Act tolls a debtor's cause of action." (Danielson, at p. 652.) Simply put, since this case was filed by rather than against Fu, the five-year statute was not tolled by his bankruptcy.
Fu states that he "reasonably believed that the case was stayed" based on his notice of stay and subsequent court orders, specifically the bankruptcy court's "Order Denying Debtor's Motion to Set Stay Termination Date" and the trial court's "Order to Enjoin and Ban Kaman Liu's August 28, 2017 Notice of Termination of Stay," which "strongly suggested" a stay was in place during the entirety of his bankruptcy proceedings. Fu was mistaken.
The notice of stay Fu relies on is a Judicial Council Form entitled "Notice of Stay of Proceedings" intended for use where there is an "[a]utomatic stay caused by a filing in . . . a federal bankruptcy court." (Cal. Rules of Court, rule 3.650(b)(4).) Fu prepared the notice, checking the box that the case was stayed "[w]ith regard to all parties" due to his bankruptcy filing, and filed it on May 8, 2017. This notice, however, is not a court order staying the entire action; at best, the form reflects Fu's mistaken belief that the automatic stay in his bankruptcy also extended to him in his own action. (See Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 981 (Higgins).)
The court orders Fu relies upon also do nothing to extend the automatic bankruptcy stay to Fu's own prosecution of his case against Liu or his co-defendants. First, the bankruptcy court order was in response to a motion Fu had filed to "set a stay termination date" after Liu had filed a "Notice of Termination or Modification of Stay" in the underlying action in San Francisco Superior Court in which he represented that the stay in the case had been vacated by another court. The bankruptcy court order clarified that it had only remanded the case but "did not grant relief from the stay to any party, nor did it enter an order terminating the stay." Noting that Bankruptcy Code governed the stay, the bankruptcy court denied Fu's motion to "set a stay termination date." Second, the trial court order relied upon by Fu was in response to an ex parte application Fu filed. The order states in full: "Good cause appearing. [¶] The Court found that the Notice of Termination of Stay filed on August 28, 2017 . . . is a fraud and it is fraud on the Court. [¶] The Court, therefore, orders to enjoin and ban the Notice of Termination of Stay." These orders clearly established that Liu's notice that the stay in the underlying action had been terminated was improper, but they did not address or extend any stay to Fu's prosecution of his case, nor did they purport to circumvent the scope of the automatic stay in contravention of existing law.
Fu also argues the doctrine of equitable estoppel protects his reasonable reliance on the trial court's "Order to Enjoin and Ban Kaman Liu's August 28, 2017 Notice of Termination of Stay." The doctrine of equitable estoppel "affirms that 'a person may not lull another into a false sense of security by conduct causing the latter to forebear to do something which he otherwise would have done and then take advantage of the inaction caused by his own conduct.'" (Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d 431, 437-438; see also Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1341 (Tejada) ["If a trial court finds statements or conduct by a defendant which lulls the plaintiff into a false sense of security resulting in inaction, and there is reasonable reliance, estoppel must be available to prevent defendant from profiting from his deception."].)
Even if the estoppel doctrine extends to acts by a trial court, we are not persuaded. Again, nothing in the trial court order relied upon by Fu, quoted in full ante, extended the bankruptcy stay to Fu's prosecution of his case against Liu or his co-defendants, or reasonably lulled Fu into mistakenly believing so.
2. Chiu's Bankruptcy
We also conclude that the bankruptcy filing by Chiu - Liu's codefendant - did not stay the entire case, let alone proceedings against Liu, as the automatic stay of judicial proceedings against a debtor in bankruptcy does not generally apply to co-defendants not in bankruptcy proceedings. (Cross v. Cooper (2011) 197 Cal.App.4th 357, 365, fn. 2 (Cross); see also Higgins, supra, 15 Cal.App.5th at pp. 976, 981 [concluding as a matter of law that the automatic stay that applied to claims against the debtor did not apply to claims against co-defendant nondebtor]; Danko v. O'Reilly (2014) 232 Cal.App.4th 732, 748 [automatic stay does not apply to nondebtor entities, including co-defendants].) Since Liu was a non-debtor co-defendant, the automatic stay triggered by debtor Chiu's bankruptcy filing was inapplicable to him.
Invoking a recognized exception to the general rule that the automatic stay does not apply to claims against a nondebtor co-defendant, Fu suggests Chiu was an indispensable party, or that Liu and Chiu were each indispensable parties, to the fraudulent transfer causes of action and conspiracy claims. (See Cross, supra, 197 Cal.App.4th at p. 365, fn. 2 [there exist "some narrow exceptions in unique circumstances" to the general rule that the automatic stay of judicial proceedings against a debtor in bankruptcy does not apply to nondebtor co[-]defendants, including when the bankrupt defendant is an indispensable party or when the identity between the debtor and nondebtor co[-]defendant is such that judgment against the latter would automatically operate as a judgment against the debtor].) He suggests the automatic stay as to debtor co-defendant Chiu extends to Liu, as well.
Fu never explains what constitutes an indispensable party and does not offer any authority on this point. He instead makes conclusory arguments such as "the automatic stay prevented [him] from bringing the case to trial, because the trial against Liu would necessar[il]y have involved Chiu as indispensable party" and that "[t]here was no doubt that [Fu's] fraudulent transfer claim involved both Chiu and Liu's fraudulently transferred assets and that they are both indispensable parties." Elsewhere, he states that
Chiu's bankruptcy stay "should be deemed to apply to the whole case because the same operative facts would establish both Liu's and Chiu's liability as co-fraudulent-transferees and co-conspirators." He also posits that "[b]oth defendants . . . were involved equally in a conspiracy to transfer assets for their brother-in-law." But he fails to identify the operative facts or allegations that make each party indispensable or address why it was not possible to pursue his case against the two men separately. Accordingly, Fu's contention that Chiu was an indispensable party to the action and that his bankruptcy therefore tolled the action is waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see also City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1099 [courts" 'are not bound to develop appellants' arguments for them' "].)
Even if this indispensable party argument had been properly presented and meritorious, we would not overturn the trial court's dismissal order. As explained in further detail below, extending the deadline an additional 102 days due to the removal period coupled with the extra six months from Emergency Rule 10(a) would extend the five-year period to May 23, 2022. Fu's other tolling arguments related to the Liu's default period and deposition dispute period, both unsuccessful (see infra), do not extend the five-year period further. By the time of Chiu's August 10, 2022 bankruptcy filing, the five-year clock had already lapsed.
Fu also appears to invoke two additional grounds under Bankruptcy Code sections 362, subdivisions (a)(1) and (a)(3), for extending the bankruptcy stay (related to Chiu's bankruptcy proceedings) to his case against Liu. These, too, are not sufficiently developed with any reasoned argument so we shall not consider them.
C. Default Period Is Not Excluded
We disagree with Fu's argument that the 92-day period from entry of default to the order to set aside default - March 7, 2022 through June 7, 2022 - must be tolled.
The entry of default judgment indisputably renders an action impossible, impracticable, or futile to try. (Howard v. Thrifty Drug &Discount Stores (1995) 10 Cal.4th 424, 438 (Howard).) However, entry of default does not have the same result. "An exercise of reasonable diligence in prosecuting the case when the defendant is in default consists of reasonable efforts to proceed to a hearing on damages and obtain a default judgment. Where such efforts by a plaintiff do not appear within a reasonable time, no principle of fairness forbids dismissal of the action." (Hughes, supra, 5 Cal.App.4th at pp. 69, 70-71 [concluding the time between entry of default and entry of default judgment should be excluded from the time to bring a case to trial if and only if the court finds the plaintiff used due diligence to obtain entry of the judgment, and that in spite of such due diligence, it was impossible, impracticable, or futile to obtain a judgment].)
On March 7, 2022, Fu filed a request for entry of default against Liu. One week later, on March 15, Fu was notified by the court clerk that his request for entry had been rejected due to errors in the filing. Two weeks later, on April 6, Liu filed a motion to set aside entry of default. The motion was heard and granted on June 7. Since no default judgment was ever entered in favor of Fu, this was not a situation which made prosecution impossible or which brought the litigation to a standstill, leaving the trial court with no discretion whether to exclude the default period. (See Howard, supra, 10 Cal.4th at p. 438.)
Accordingly, it was not an abuse of discretion for the trial court to conclude the 92-day default period should not be excluded from the five-year calculation." '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 these exceptions.'" (Bruns, supra, 51 Cal.4th at p. 731.) "This rule reflects the Legislature's understanding that a reasonably diligent plaintiff should be able to bring the case to trial within the relatively lengthy period of five years notwithstanding such ordinary delays. [Citation.] To hold otherwise would allow plaintiffs to litigate piecemeal every period, no matter how short, in which it was literally impracticable to try the case, thus rendering the statute 'utterly indeterminate, subjective, and unadministerable.'" (Gaines, 62 Cal.4th at p. 1101.) In addition, delays associated with "ordinary incidents of proceedings leading up to the trial . . . must deprive the plaintiff of a' "substantial portion"' of the five-year period" to be excluded. (Id. at p. 1102 ["ordinary delays, even ones beyond the plaintiff's control, are already accounted for in the five-year period"].) The default and the subsequent motion to set it aside were in the nature of an ordinary incident of pretrial litigation which took approximately three months to resolve, not a substantial portion of the five-year period Fu had to prosecute his lawsuit.
D. Deposition Dispute Period Is Not Excluded
We disagree with Fu's contention that the 100-day period in which Liu willfully and intentionally "concealed himself from deposition" - from November 26, 2021 through February 23, 2022 - should be excluded from the five-year calculation.
To the extent Liu's argument for excluding this "concealment period" is based on the doctrine of equitable estoppel, we are not persuaded as Fu has identified no representations Liu made to Fu concerning his deposition. (Tejada, supra, 196 Cal.App.3d at p. 1341.) Based on Fu's own rendition of the discovery dispute, Liu failed to appear to his properly noticed November 2021 deposition and ignored Fu's efforts to meet and confer multiple times. It was only after Fu prevailed on a motion to compel that Liu sat for his deposition three months later in February 2022. Although Liu appears to have been uncooperative, we see no false assurances in statements or in his conduct that would serve as the basis for an estoppel claim.
To the extent Liu's argument is based on impossibility, impracticality, or futility, we also reject it." 'Generally, delays encountered in discovery are part of the 'normal delays involved in prosecuting lawsuits' and do not excuse failure to bring a case to trial.'" (Fidelity National Home Warranty Company Cases (2020) 46 Cal.App.5th 812, 856; see also Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1016.) It was not an abuse of discretion for the trial court to conclude that the 100-day period needed to pin down an adverse witness to sit for deposition was an ordinary delay that did not deprive Liu of a substantial part of his five years. (See Gaines, supra, 62 Cal.4th at pp. 1101-1102.)
III. Reasonable Diligence
Fu repeatedly asserts the trial court erred in considering whether he exercised "reasonable diligence" throughout the case. Recounting the work he put into the case, he states: "It is fair to say throughout the entire litigation of the case, [he] has exercised reasonable diligence in prosecuting his case." But Fu has not shown reasonable diligence during the entire proceeding. During the substantial, approximately two-year, nine-month period he mistakenly believed the automatic bankruptcy stay extended to the prosecution of his own case, he made little to no efforts to advance the case. (Santa Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 1034 ["Tolling under the 'impossible or impracticable' rule requires evaluation of plaintiff's reasonable diligence at all stages of the litigation."].) While the mistake may have been sincere, it does not excuse the failure to move his case forward for well over two-and-one-half years.
IV. Conclusion
A five-year period totals at least 1,825 days. (See State ex rel. Sills v. Gharib-Danesh (2023) 88 Cal.App.5th 824, 847.) Adding to that period the 102 days during which Fu's case was removed results in a total of 1,927 days. The date 1,927 days from the date Fu filed his complaint (August 15, 2016) is November 23, 2021. Adding six months due to the COVID-19 emergency extends the period to May 23, 2022. As of that date, no trial date had been set nor even requested by Fu. The trial court did not err in dismissing Fu's action.
Disposition
The dismissal order is affirmed. The parties shall bear their costs on appeal.
WE CONCUR: Tucher, P.J., Rodriguez, J.
[*] Tucher, P.J., Petrou, J., and Rodriguez, J. participated in the decision.