Opinion
D081591
04-15-2024
ALLEN WISELEY, Plaintiff and Appellant, v. COMBE INCORPORATED et al., Defendants and Appellants.
Finkelstein &Krinsk, Jeffrey R. Krinsk and Mark L. Knutson, for Plaintiff and Appellant. Ellis George Cipollone O'Brien, Dennis S. Ellis, Katherine F. Murray, and Serli Polatoglu, for Defendants and Appellants.
NOT TO BE PUBLISHED
Order Filed On Date 4/29/24
APPEALS from a judgment of the Superior Court of San Diego County No. 37-2016-00039671-CU-BT-CTL, Richard S. Whitney, Judge. Affirmed as modified.
Finkelstein &Krinsk, Jeffrey R. Krinsk and Mark L. Knutson, for Plaintiff and Appellant.
Ellis George Cipollone O'Brien, Dennis S. Ellis, Katherine F. Murray, and Serli Polatoglu, for Defendants and Appellants.
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on April 15, 2024, be modified as follows: Immediately after the last sentence of footnote 4 on page 13, the following language is inserted:
Although Wiseley made a passing reference to this argument in one sentence of his opposition to the motion to dismiss below, he submitted no transcripts to support this assertion and no evidence that the previously assigned Judge Gregory W. Pollack was unwilling to hold a class certification hearing remotely. Wiseley now relies on comments made by Judge Pollack at a June 18, 2021 hearing, but he did not cite this transcript or submit it to the trial court as part of his opposition to the motion to dismiss. Moreover, the transcript merely shows that once in-person proceedings resumed, Judge Pollack preferred inperson appearances. Nothing in the record establishes that Judge Pollack would have been unwilling to hold a class certification hearing remotely if requested to do so and advised of the five-year deadline.
There is no change in judgment.
The petition for rehearing is denied.
BUCHANAN, J.
Allen Wiseley appeals from a judgment entered against him after the trial court dismissed his class action with prejudice under Code of Civil Procedure section 583.310, which requires that an action be brought to trial within five years. Wiseley contends the trial court applied the incorrect burden of proof to determine whether he was entitled to invoke the exception under section 583.340, subdivision (c), which allows for tolling of the five-year deadline based on impossibility, impracticability, or futility. He further contends that his deadline to bring the action to trial was tolled for 15 months due to the COVID-19 pandemic, and the court erred in concluding otherwise. Finally, Wiseley argues that the court's order dismissing the case with prejudice and without notice to class members was an abuse of discretion.
All further undesignated statutory references are to the Code of Civil Procedure.
Wiseley asks us to take judicial notice of certain executive orders issued by Governor Gavin Newsom, general orders issued by the presiding judge of the San Diego County Superior Court, emergency orders issued by the Chief Justice of the Supreme Court, orders issued by the San Diego County Health Officer, and an order issued by the California Department of Public Health. These documents were all referred to in the trial court and are already part of the appellate record, making judicial notice unnecessary. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619, 631-632, fn. 11.) We therefore deny the request for judicial notice.
We find no error in the trial court's grant of dismissal, but we modify the judgment to reflect that the dismissal should be without prejudice. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2016, Wiseley filed a putative class action on behalf of himself and all other similarly situated California citizen-purchasers of Just For Men Mustache &Beard (M&B) hair dye product, asserting statutory violations of the Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA) and a claim for negligent omission against Combe Incorporated, Combe Products, Inc., Combe Manufacturing, Inc., and Combe International Ltd. (collectively, Combe). After the trial court sustained two demurrers filed by Combe, Wiseley filed his second amended complaint in October 2017.
Wiseley's second amended complaint alleged that M&B contains dangerous chemicals known to cause injury when used as directed and that Combe failed to adequately warn consumers of the danger of its products. Wiseley further alleged that he purchased and used M&B for five to seven years before having a negative reaction to the product in April 2016, when he administered a skin allergy patch test as directed, with no reaction. When Wiseley then applied the product to his beard as directed 48 hours later, he felt his skin burning and, after washing the product off, experienced red, irritated, dry, and itchy skin. Three days later, his skin worsened, and there were" 'gooey' and 'damp' pockets on his face." Wiseley alleged that his skin continues to come off in large, thick patches to this day, and his skin has never returned to its previous condition. He again brought claims for UCL and CLRA violations as well as a breach of implied warranty claim under the Song-Beverly Consumer Warranty Act. After another partially successful demurrer to the breach of implied warranty claim, Combe filed an answer in March 2018.
Throughout 2018 and 2019, the parties engaged in extensive discovery and litigated various discovery disputes. In March 2020, Governor Newsom declared a State of Emergency in California due to the threat of COVID-19. Governor Newsom also issued an executive order directing all California residents to follow the State public health directive to stay at their place of residence, with certain exceptions, and directing all non-essential businesses to cease operating to prevent further spread of COVID-19. (SVAP III Poway Crossings, LLC v. Fitness Internat., LLC (2023) 87 Cal.App.5th 882, 886.) Shortly thereafter, the Judicial Council of California adopted emergency rule 10, which extended the deadline to bring a civil action to trial under section 583.310 by six months. (State ex rel. Sills v. Gharib-Danesh (2023) 88 Cal.App.5th 824, 840 (Sills), citing Cal. Rules of Court, appen. I, emergency rule 10(a).) Effective April 6, 2020, emergency rule 10 provides that "[n]otwithstanding 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); see also Sills, at p. 840.)
In May 2020, the trial court vacated the hearing date on Wiseley's motion for class certification that had been set for October 2020. At a June 2021 hearing, the court re-set the class certification hearing for September 2021 at Combe's request. Wiseley filed his motion for class certification in August 2021. Combe filed its opposition in October 2021.
In September 2021, the trial court judge sua sponte convened the parties for an ex parte hearing to disclose his personal use of another hair dye product made by Combe. The judge ultimately recused himself in October 2021 at Wiseley's request. The case was reassigned to a new judge the following day, and the court set a status conference for December 2021.
The parties stipulated to a March 2022 class certification hearing date, which was twice continued due to the court's schedule. Wiseley filed his reply in support of his motion for class certification that same month. In April 2022, the trial court issued its tentative decision granting Wiseley's class certification motion. The class certification hearing took place on May 6, 2022.
On May 16, 2022, after the class certification motion had been taken under submission and a final ruling was pending, Combe filed a motion to dismiss for failure to prosecute under section 583.310. Combe argued that Wiseley's five years and six months to bring his case to trial had expired as of May 10, 2022, and it was therefore mandatory that the court dismiss the class action. Wiseley opposed, arguing that the closure of San Diego Superior Court for in-person civil jury trials for 15 months due to COVID-19 frustrated his ability to earlier move for and obtain class certification (and thus, a trial date); he acted with reasonable diligence in prosecuting his case; and the doctrine of judicial estoppel precluded dismissal.
In June 2022, the trial court granted Wiseley's motion for class certification, certifying a class of "[a]ll citizens of California who purchased a Just for Men Mustache &Beard product for personal use within the applicable statute of limitations." On July 26, 2022, Wiseley filed an ex parte application to request approval of a proposed form and plan for the dissemination of class notice and to request that the court specially set a trial date.
The court held a on hearing on Combe's motion to dismiss on September 1, 2022. On September 7, 2022, before class notice had been approved or disseminated, the court granted the motion to dismiss, finding that Wiseley had "not met his burden to provide clear and convincing proof that the COVID pandemic caused case-specific disruptions beyond the six months accounted for within Emergency rule 10 nor that Plaintiff exercised reasonable diligence throughout the litigation." The court stated that it had "no doubt that the COVID pandemic qualified as a condition contemplated by
CCP section 583.340(c), but Emergency rule 10 already explicitly accounts for the general disruptions caused by the COVID pandemic." Therefore, for Wiseley to demonstrate that a greater length of tolling was appropriate, he needed to provide case-specific evidence showing it would have been impossible, impracticable, or futile to bring the case to trial, even if he had acted with reasonable diligence. The trial court found that he had not done so.
On September 28, 2022, the court entered judgment in favor of Combe. Over Wiseley's objections, the court dismissed the class action with prejudice and without notice to class members. Wiseley timely appealed.
Combe cross-appealed the trial court's grant of class certification. Because we affirm dismissal of Wiseley's action, we need not address Combe's appeal.
DISCUSSION
A. Burden of Proof
Section 583.310 provides that "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." If the action is not brought to trial within the required time, it "shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties." (§ 583.360, subd. (a).) "Under the press of this statutory requirement, 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." (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 322 (Tanguilig) [affirming dismissal under section 583.310].) If the party does not meet this obligation, dismissal is mandatory and "not subject to extension, excuse, or exception except as expressly provided by statute." (§ 583.360, subd. (b); Tanguilig, at p. 322.)
One statutory exception to the five-year rule is where circumstances make it "impossible, impracticable, or futile" to bring the action to trial within the required timeframe. (§ 583.340, subd. (c); Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 (Gaines).) To determine whether a party has made a sufficient showing under section 583.340, subdivision (c) and can avoid dismissal, "the court must consider all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. 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." (Gaines, at p. 1100, internal quotation marks and citations omitted.)
Wiseley invokes this provision, arguing that dismissal was in error because he made the requisite showing that bringing his case to trial in the allotted time was impossible, impracticable, or futile. The parties agree that the burden was on Wiseley to establish the impossibility, impracticability, or futility of bringing his case to trial (see Gaines, supra, 62 Cal.4th at p. 1100), but they disagree as to which burden of proof standard he was required to meet. Wiseley contends the trial court erred in requiring him to demonstrate by clear and convincing evidence that bringing his case to trial was impossible, impracticable, or futile under section 583.340, subdivision (c), and that the correct burden of proof is preponderance of the evidence. Combe responds that the trial court correctly ruled that Wiseley was required to prove he met the statutory exception with clear and convincing proof.
We conclude that Combe has the better argument. The Legislature revised the set of statutes governing dismissal for delay in bringing an action to trial in 1984, repealing former section 583 and enacting sections 583.310 through 583.360. (Gaines, supra, 62 Cal.4th at p. 1090, citing Stats. 1984, ch. 1705, §§ 4, 5, pp. 6176-6180.) The Law Revision Commission drafted the new provisions, and the Legislature enacted the commission's draft without change. (Gaines, at pp. 1090, 1095-1096, fn. 6.) After reviewing the legislative history of the 1984 statutory revisions, the Supreme Court concluded it is clear the Legislature and commission "intended largely to codify, not supplant, the quasi-common law developments in this area that had evolved over the preceding decades." (Id. at p. 1090 [citing Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1366 (1983-1984 Reg. Sess.) as amended July 3, 1984, p. 3; Revised Recommendation Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com. Rep. (1984) p. 916].) Indeed, the commission explicitly stated that section 583.340, subdivision (c) "codifies the case law 'impossible, impractical, or futile' standard." (17 Cal. Law Revision Com. Rep., supra, at p. 936.)
Although section 583.340 is silent as to the evidentiary burden of proof on a motion to dismiss for failure to prosecute, appellate courts addressing the issue before and after the 1984 revisions have consistently found that a party invoking an exception to the five-year rule must make their showing with clear and convincing evidence. (See, e.g., Cent. Mut. Ins. Co. v. Exec. Motor Home Sales (1983) 143 Cal.App.3d 791, 796 ["The burden is on plaintiffs to first establish in the trial court, by clear and convincing proof, the existence of either impossibility, impracticability or futility of bringing the matter to trial within five years."]; Hoffman v. Cal. (1985) 171 Cal.App.3d 1100, 1108 (Hoffman) [same]; Lane v. Newport Bldg. Corp. (1986) 176 Cal.App.3d 870, 873 [same]; Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1533 ["We conclude that . . . real parties have not met the burden of establishing in the trial court, by clear and convincing proof, the existence of either impossibility, impracticability or futility of bringing the matter to trial within five years."].)
Wiseley urges us to reject this authority, relying on Bank of America v. Superior Court (Ulrich) (1988) 200 Cal.App.3d 1000 (Ulrich) to argue that the Legislature intended to do away with the clear and convincing burden of proof when it revised the delay of prosecution statutory scheme in 1984. The Ulrich court observed in a footnote: "Section 583.340, subdivision (c) does not address burden of proof. The Law Revision Commission comment states that the statute codifies the case law 'impossible, impractical, or futile' standard. However, the commission comment further provides that the provisions of subdivision (c) 'must be interpreted liberally, consistent with the policy favoring trial on the merits,' citing section 583.130. In light of this policy, we question the applicability of the former cases placing on the plaintiff the heavy burden of proving impossibility, impracticability or futility of bringing the action to trial by clear and convincing proof. Proof by a preponderance of the evidence should suffice." (Ulrich, at p. 1013, fn. 8.) But the court did not actually apply the preponderance of the evidence standard in concluding that the record did not support the plaintiff's claim of impracticability. It also cited Hoffman, supra, 171 Cal.App.3d at p. 1108, which applied the clear and convincing evidence standard. (Ulrich, at pp. 1013-1016.)
According to Wiseley, the Ulrich court's placement of footnote eight after its citation of Hoffman was intended to emphasize the significance of the commission's commentary and ensure the two would "be read together should the issue of the appropriate evidentiary burden of proof standard for tolling under section 583.340(c) arise again in future litigation proceedings." (Ulrich, supra, 200 Cal.App.3d at p. 1013, fn. 8.) We are not persuaded. One court's "questioning" of the applicable burden of proof does not constitute authority on the issue, and the trial court here properly followed binding precedent in applying the clear and convincing evidence standard.
In our view, interpreting section 583.340, subdivision (c) liberally and consistent with the policy favoring trial on the merits does not require the application of a lower burden of proof. The Legislature and commission did not include words in the statute expressly changing the existing burden of proof. If they wanted to change it, they knew how to do so. Although the revised statutory scheme on the five-year dismissal rule largely codified existing case law, the commission noted one intended change in its comments: "Under Section 583.340 the time within which an action must be brought to trial is tolled for the period of the excuse, regardless whether a reasonable time remained at the end of the period of the excuse to bring the action to trial. This overrules cases such as State of California v. Superior Court, 98 Cal.App.3d 643, 159 Cal.Rptr. 650 (1979), and Brown v. Superior Court, 62 Cal.App.3d 197, 132 Cal.Rptr. 916 (1976)." (17 Cal. Law Revision Com. Rep., supra, at p. 936.) There is no similar comment from the commission expressing any intent to overrule existing case law regarding the evidentiary burden of proof. We will "not use the maxim of liberal construction" to" 'accomplish an end outside the terms of the statute.'" (Little v. Commission on Teacher Credentialing (2022) 84 Cal.App.5th 322, 338.)
Nor are we persuaded by Wiseley's contention that the Ulrich footnote should be followed because it demonstrates a thorough analysis of the commission's efforts to reconcile sections 583.130 and 583.340, subdivision (c) with the policy favoring trial on the merits. Although the Ulrich court pointed to the commission's citation of section 583.130 in questioning the continued applicability of prior case law after the 1984 revisions, the commission's comment to section 583.130 stated: "Section 583.130 is new. It is consistent with statements in the cases of the preference for trial on the merits." (17 Cal. Law Revision Com. Rep., supra, at p. 929.) The commission cited several pre-1984 cases in support of its comment. (Ibid.) Thus, the commission did not create a new policy favoring trial on the merits but rather codified the preference that already existed in case law-which applied the clear and convincing evidence standard. (Ibid.; see also Gaines, supra, 62 Cal.4th at p. 1090 ["The Legislature and commission intended largely to codify, not supplant, the quasi-common law developments in this area that had evolved over the preceding decades."].)
For all of these reasons, we conclude that the trial court correctly required Wiseley to establish the existence of impossibility, impracticability, or futility of bringing the matter to trial within the required time by clear and convincing evidence.
B. Standard of Review
The parties also disagree on which standard of review applies on appeal. Wiseley contends that if we determine, as we have, that the trial court correctly applied the clear and convincing burden of proof, then we should review the court's ruling under the substantial evidence standard on appeal. Combe contends that the trial court's ruling should be reviewed for abuse of discretion.
We again agree with Combe. The Supreme Court recently affirmed application of an abuse of discretion review in this context and found that the appellant arguing otherwise provided "no persuasive justification to revisit this settled rule." (Gaines, supra, 62 Cal.4th at p. 1100, fn. 8.) The court explained that "[t]he question of impossibility, impracticability, or futility is best resolved by the trial court, which is in the most advantageous position to evaluate these diverse factual matters in the first instance. The plaintiff bears the burden of proving that the circumstances warrant application of the . . . exception....The trial court has discretion to determine whether that exception applies, and its decision will be upheld unless the plaintiff has proved that the trial court abused its discretion." (Id. at p. 1100, internal quotation marks and citations omitted; see also Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240, 247 ["the trial court has the discretion to determine whether to exclude time pursuant to section 583.340(c) on the basis that bringing the action to trial was impossible, impracticable, or futile, and its decision will be upheld unless arbitrary or capricious"].) Our review in this context is therefore limited to assessing whether the trial court abused its discretion. (Tanguilig, supra, 22 Cal.App.5th at p. 324.)
C. The Trial Court Did Not Abuse Its Discretion in Dismissing the Action
We cannot say that the trial court's dismissal of Wiseley's action was arbitrary or capricious. Emergency rule 10(a), effective April 6, 2020 and in response to the COVID-19 pandemic, extended "the time in which to bring an action" to trial to "a total time of five years and six months." (Cal. Rules of Court, appen. I, emergency rule 10(a); see also Sills, supra, 88 Cal.App.5th at p. 840.) The trial court correctly applied this rule, finding that Wiseley's statutory deadline to bring his action to trial was extended by six months, from November 10, 2021 to May 10, 2022.
The trial court then properly considered the circumstances of Wiseley's case, including any disruptions that may have been caused by the COVID-19 pandemic, as well as whether Wiseley exercised reasonable diligence. (See Gaines, supra, 62 Cal.4th at p. 1100.) Wiseley argued below, as he does on appeal, that it was not his fault that his motion for class certification, a necessary precursor to trial, could not be heard "until the 11th hour in this litigation," as the trial court found. According to Wiseley, the 15-month period when courts were closed to in-person civil proceedings due to the COVID-19 pandemic made it futile and impracticable, if not impossible, for him to obtain class certification and specially set the case for trial within the required timeframe. He pointed to the various executive orders issued by Governor Newsom and general orders issued by the presiding judge of the San Diego County Superior Court between March 2020 and June 2021 that suspended jury trials, limited courtroom services, and imposed various restrictions as proof that it was impossible, impracticable, or futile to bring his class claims to trial within five years.
Wiseley also contends on appeal that the prior trial judge's preference for an in-person class certification hearing and alleged unwillingness to hold the hearing remotely rendered it impracticable, if not impossible, for Wiseley to bring the action to trial. He did not raise this argument below, and we therefore decline to consider it. (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011 (Natkin) ["[W]e ignore arguments, authority, and facts not presented and litigated in the trial court." (Internal quotation marks omitted.)].)
Wiseley further argued to the trial court that he was reasonably diligent in prosecuting his claims, but the "cumulative effects of court closures, public and private meeting restrictions, face masking and social distancing, and the impracticability of traveling due to the worsening pandemic rendered it too unduly burdensome and expensive to pursue" class certification preparation during the period of inactivity in the case identified by Combe between January 2020 and November 2020. His counsel submitted a supporting declaration that pointed to pandemic-related travel restrictions he claimed prevented face-to-face meetings with experts "to review crucial research and investigations for Class Certification and other issues for this matter." Wiseley's counsel further recounted in his declaration that he, his experts, and third parties faced many disruptions to their businesses and pandemic-related challenges.
The trial court did not abuse its discretion in rejecting these arguments. To avoid dismissal, Wiseley was required to show "a causal connection between the circumstance [establishing impossibility, impracticability, or futility] and the failure to move the case to trial" and that he "was reasonably diligent in prosecuting [his] case at all stages in the proceedings." (Tanguilig, supra, 22 Cal.App.5th at p. 323.) On this record, it was not an abuse of discretion for the trial court to find that Wiseley did not meet either of these requirements.
Wiseley provided no causal connection between the general challenges of the pandemic and his alleged inability to bring his case to trial within five years and six months. He did not submit proof of any specific disruptions or how they would have made work on this litigation impossible, impractical, or futile. Nor did he explain how his inability to meet in person with his experts prevented him from pursuing class certification and bringing the action to trial, or claim that meeting remotely would have been insufficient, much less impossible, impractical, or futile.
In terms of his diligence, Wiseley failed to explain why he did not seek to reschedule his class certification hearing at the earliest possible time after the October 2020 hearing was vacated due to the pandemic. Although inperson hearings were limited for the first several months of the pandemic, the presiding judge noted in a September 2020 order that San Diego County Superior Court "resumed most services on May 26, 2020," and the court had been conducting remote hearings since that time. Wiseley also failed to establish that the court could not have specially set a trial to be heard before the May 10, 2022 deadline such that any attempt to do so would have been futile. In a December 2020 court order cited by Wiseley, the presiding judge explained that notwithstanding the prioritization of using courtrooms for incustody criminal jury trials, "if the judicial officer assigned to any case for trial [were to find] good cause to prioritize and commence that trial," the judicial officer was instructed to communicate that to the presiding judge for consideration. Wiseley had a duty to advise the court of the impending deadline, yet he "neglected to inform the court that he had a section 583.310 problem." (Wale v. Rodriguez (1988) 206 Cal.App.3d 129, 133 (Wale) [affirming dismissal for failure to prosecute].) As the Wale court observed, "[i]t is precisely when the five-year deadline looms that the greatest diligence is demanded. Appellant was not entitled to assume that a motion to specially set would have been futile." (Ibid.)
We are also unpersuaded by Wiseley's contention that the trial court improperly found that emergency rule 10 "supplanted" section 583.340. Rather, the court found that although it had "no doubt that the COVID pandemic qualified as a condition contemplated by CCP section 583.340(c)" that extended the five-year deadline, "Emergency rule 10 already explicitly accounts for the general disruptions caused by the COVID pandemic." (Italics added.) For Wiseley to prove that additional tolling beyond the six months was appropriate, the trial court ruled, he was required to "provide clear and convincing proof that is case-specific to demonstrate that it would have been '[]impossible, impracticable, or futile' to bring the case to trial" due to the pandemic. (Italics added.) As we have explained, the record supports the trial court's finding that he did not do so. The trial court was therefore well within its discretion to find that Wiseley failed to meet his burden under section 583.340, subdivision (c).
D. Dismissal Should Have Been Without Prejudice
We turn now to Wiseley's contentions that the trial court erred in dismissing the action with prejudice and without notice to the class members.
Wiseley first argues that the trial court abused its discretion by entering dismissal of his action with prejudice. We agree. Section 581, subdivision (b)(4) provides that an action dismissed by the court "pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110)," must be "without prejudice." Courts have consistently held that a dismissal for failure to prosecute does not bar a subsequent action upon the same cause because it is not a final judgment on the merits. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 214-215 (Franklin Capital Corp.) [citing cases and concluding that "dismissals for procedural dereliction pursuant to Chapter 1.5 are to be without prejudice"]; see also Gonsalves v. Bank of America Nat'l Trust &Sav. Assn. (1940) 16 Cal.2d 169, 172-173 ["But it is a fundamental rule that a judgment is not res judicata unless it is on the merits, and a dismissal for delay in prosecution is not."]; Fierro v. Landry's Restaurant Inc. (2019) 32 Cal.App.5th 276, 288 (Fierro) [same].) Therefore, the trial court should have dismissed Wiseley's action without prejudice.
Combe does not disagree that dismissal predicated solely on section 583.360 must be without prejudice, but argues that the trial court acted within the scope of its discretion and appropriately dismissed Wiseley's case with prejudice based on his counsel's alleged misconduct. Combe did not move for terminating sanctions or argue attorney misconduct as a basis for dismissal in its moving papers, and the trial court gave no indication that its ruling was based on attorney misconduct, nor did it make any related findings. Again, "[w]e ignore arguments, authority, and facts not presented and litigated in the trial court." (Natkin, supra, 219 Cal.App.4th at p. 1011, internal quotation marks omitted.)
Wiseley also argues that dismissal without notice to the class was improper. The California Rules of Court provide specific instructions regarding notice of dismissal in circumstances like those presented in this case: "If the court has not ruled on class certification, or if notice of the pendency of the action has not been provided to class members in a case in which such notice was required, notice of the proposed dismissal may be given in the manner and to those class members specified by the court, or the action may be dismissed without notice to the class members if the court finds that the dismissal will not prejudice them." (Cal. Rules of Court, rule 3.770(c), italics added.) Although the trial court granted class certification here, notice of the pendency of the action had not yet been provided to the class members, so the court was authorized to dismiss the action without notice if it found that dismissal would not prejudice the class members. (Ibid.; see also Fidelity National Home Warranty Co. Cases (2020) 46 Cal.App.5th 812, 826.) Wiseley is correct that the court was required to, but did not, make such a finding.
In light of the fact that we modify the final judgment to dismissal without prejudice, however, we find as a matter of law that dismissal will not prejudice the class members. The class members never received notice of their status as class members, and they are free to pursue their claims in another action if they wish. (See Franklin Capital Corp., supra, 148 Cal.App.4th at pp. 214-215 [dismissal for failure to prosecute is not on the merits and thus does not bar a subsequent proceeding]; see also Fierro, supra, 32 Cal.App.5th at p. 290 [statute of limitations is tolled for individual claims of unnamed class members while class action is pending].) We therefore conclude that notice to the class members of the action's dismissal was not required.
DISPOSITION
The judgment is modified to reflect that the action is dismissed without prejudice as to both Wiseley and the class members. As modified, the judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: McCONNELL, P. J. CASTILLO, J.