Preview
INTHE
ourt of Appeal of the State of California
IN AND FOR THE
THIRD APPELLATE DISTRICT
ASHLEY M. NAGHASH,
Plaintiff and Appellant,
v.
TERRY RICHARDS,
Defendant and Respondent.
C084640
Sacramento County
No. 34201100113923CUPOGDS
REMITTITUR TO TRIAL COURT CLERK
I, ANDREA K. WALLIN-ROHMANN, Clerk of the Court of Appeal of the State of
California for th^ Third Appellate District, do hereby certify that the attached opinion or
order, previously provided to the parties, is a true and correct copy ofthe original
opinion or orde^entered in the above entitled cause that has now become final.
Respondents to recover costs on appeal.
WITNESS my hand and the seal of the Court affixed at my office this Sth day of January
2019. V:
ANDREA K. WALLIN OHMANN
Clerk
By: Gimli Willia
Deputy Clerk '
Receipt of the original remittitur in the above case is hereby acknowledged.
Dated:
JAN 1 0 2018
Trial Court Clerk
cc: See Mailing List
JAN 1 0 2019
-K. Michaiiri
_ Deputy Clerk
INTHE
Court of Appeal of the State of California
IN AND FOR THE
THIRD APPELLATE DISTRICT
' MAILING LIST
Re: Naghash v. Richards
Cp84640
Sacramento County Super. Ct. No. 34201100113923CUPOGDS
Copies of this document have been sent by mail to the parties checked below unless they were
noticed electronically. If a party does not appear on the TrueFilinjg Servicing Notification and is
not checked below, service was not required.
Roger E. Naghash
Attorney at Law
19800 MacArthur Blvd. Suite 1100
Irvine, CA 92612-8433
Ralph E. Laird
Law Office of Ralph Laird
210 Magnolia Avenue, Suite 2
Auburri, CA 95603
acparn^nto;'6ounty Superior Court
Oj^ihth'Street
^Sadramentof CA 95814
Court of Appeal, Tliird Appellate Districl
Andrea K. Wallin-Rohmann. Clerk'
Electronically FOED on 10/30/20IS by G. Williams. Deputy Clerk
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COIJRT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
ASHLEY M. NAGHASH, C084640
Plaintiff and Appellant, (Super. Ct. No.
34201100113923CUPOGDS)
TERRY RICHARDS,
Defendant and Respondent.
Ashley M. Naghash appeals from the trial court's entry ofjudgment dismissing
her complaint as to defendant Terry Richards for failure to bring her action to trial within
five years as required by Code of Civil Procedure section 583.310.^ Because she has
demonstrated no error in the trial court's decision, we affirm the judgment.
* Undesignated statutory references are to the Code of Civil Procedure.
I. BACKGROUND
On November 14, 2011, Naghash filed this action'against Richards and other
defendants, including the Board of Trustees of the Califomia State University; the State
of Califomia; the Califomia State University; Califomia State University, Sacramento
(CSUS); Alexander Gonzalez, then president of CSUS; and Michael Speros, then
"director of Housing and Residential Life at CSU" and CSUS (collectively, the
University defendants).^ The causes of actionfi-amedby the complaint related, in part, to
allegations that plaintiff was sexually assaulted and raped by Richards in a CSUS
dormitory.
On May 31, 2013, Naghash filed a request for entry of default against Richards,
and a default was entered the same day.
On September 23, 2013, Richards filed his first motion to set aside the default and
default judgment (if any) on the basis of improper service. On June 6, 2014, the trial
court granted Richards' second motion, and set aside the default. The ruling noted that a
default judgment had not yet been entered against Richards.
Meanwhile, on November 13, 2013, Naghash appealed the trial court's judgment
of dismissal as to the University defendants after an order sustaining a demurrer as to
those defendants.
On July 11, 2016, Naghash filed a nlotion to stay the action and toll the five-year
period pending the appeal. Before the trial court heard the matter, we had affirmed the
judgment dismissing the University defendants in Naghash v. Board of Trustees (July 29,
2016, C075207) [nonpub. opn.]. The trial court granted a stay for 30 days from the date
of our decision until August 29, 2016. On October 27, 2016, we issued the remittitur.
^ The most recent complaint names four other individual defendants, three of whom
were then students at CSUS. It is unclearfi-omthe record before us to what extent these
individual defendants were ever properly served or remain in the action.
On December 1,2016, Naghashfileda motion to schedule a case management
conference and a trial setting. On December 21,2016, the trial court issued a tentative
ruling granting the motion. The record on appeal contains nothingfiirtheron this motion.
On January 11,2017, Richards moved to dismiss the action for failure to bring it
to trial by December 14, 2016 (five years plus the 30 day stay). In opposition, Naghash
raised two arguments: (1) thefive-yearperiod under section 583.310 does not begin until
the summons and complaint are served on the defendant and (2) the period was tolled
during her appeal against the University defendants because, "[bjased on [the] one
judgment rule," "it would have been fUtile to piecemeal the action and seek trial and
separate judgment against each individual defendant."^
The trial court granted Richards' motion. The court began by stating that it "need
not consider the opposition's claim that defendant Richards 'actively evaded service of
summons'fi*omDecember 2012 through February 2013 since the objections to the
evidence cited as support have been sustained." Regardless, any delay in service of the
complaint or defendant's answer was not germaine to the question of when the five-year
period began to run because the period commences upon thefilingof the complaint. The
court explained that section 583.340 provides the only bases for tolling the five-year
period, and Naghash's tolling argument relied solely on subdivision (c), which applies
when bringing an action to trial is impossible, impracticable orfiitile.Thie court found
that Naghash had "fallen far short of her burden to avoid dismissal under the mandatory
provisions of [section] 583.310. [TO First, [Naghash] has in support of her opposition
included no evidence whatsoever that tends to demonstrate how or why it would have
been impossible, impracticable orfiitileto proceed to trial against defendant Richards
^ On July 23, 2018, Naghashfileda motion to augment the record to include these
opposition papers. By an August 1,2018, order, we deferred ruling on the motion, which
we now grant.
while she simultaneously appealed CSU's judgment of dismissal. Therefore, [Naghash]
failed to carry her burden of providing 'clear and convincing proof of impossibility,
impracticability, or fiitility. [ ^ Second, asidefi-omthis glaring lack of evidence, this
1
Court can find no theoretical merit to [Naghash]'s conclusory claim of impossibility,
impracticability or fiitility in timely bringing to trial her claims against defendant
Richards for sexual assault and battery. After all, although the claims against CSU would
necessitate proof of the rape allegedly committed by defendant Richards, the opposite is
not true. The claims against defendant Richards are in no way dependent on the outcome
of the claims against CSU but are instead totally separate and distinct." Lastly, the court
explained that the "one judgment rule" did not operate as a bar to Naghash proceeding to
trial with her claims against Richards while her appeal was pending.
The trial court entered a judgment of dismissal as to Richards on March 6, 2017.
Naghash timely appealed.
IL DISCUSSION
A. Standard of Review
"An action shall be brought to trial within five years after the action is commenced
against the defendant." (§ 583.310.) An action that is not brought within this time must
be dismissed. (§ 583.360, subd. (a).) However, "[i]n computing the time within which
an action must be brought to t r i a l . . . , there shall be excluded the time during which any
of the following conditions existed: [Tj] (a) The jurisdiction of the court to try the action
was suspended. [*|f] (b) Prosecution or trial of the action was stayed or enjoined. [^ (c)
Bringing the action to t r i a l . . . was impossible, impracticable, or futile." (§ 583.340.)
"[T]he trial court must determine what is impossible, impracticable, or fiitile 'in
light of all the circumstances in the individual case, including the acts and conduct of the
parties and the nature of the proceedings themselves. [Citations.] 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 v. E-Commerce Exchange,
/«c. (2011) 51 Cal.4th 717, 730-731.)
"The question of impossibility, impracticability, or fiitility is best resolved by the
trial court, which 'is in the most advantageous position to evaluate these diverse factual
matters in the first instance.' [Citation.] The plaintiff bears the burden of proving that
the circumstances warrant application of the section 583.340[, subdivision] (c) exception.
.. . The trial court has discretion to determine whether that exception applies, and its
decision will be upheld unless the plaintiffhas proved that the trial court abused its
discretion." {Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th at p. 731.) "Under
that standard, '[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 v. Fidelity Nat. Title Ins. Co.
(2016)62Cal.4th 1081, 1100.)
B. Alleged Evasion of Service
Naghash argues the time during which Richards was not amenable to service or
actively evaded service should be excluded from thefive-yearperiod. "Lack of
amenability to process is not an excuse under the current 5-year statute." (6 Wikin, Cal.
Procedure (5th ed. 2008) Proceedings Without Trial, § 407, p. 852.) As to evasion of
service, as Richards notes, Naghash's opening brief does not cite to any evidence that she
submitted to the trial court in connection with her opposition to his motion to dismiss.
Naghash sought to augment the record when shefiledher reply brief, but this cannot cure
the issue because any arguments raised or only supported by authority on reply have been
waived. {People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Regardless, the trial court
explained that it sustained objections to the evidence submitted in support of this claim.
Naghash raises no argument on appeal that the objections were improperly sustained. As
such, Naghash has failed to demonstrate any error with respect to the trial court's ruling
on this issue.
C. Entry ofDefault
Naghash contends thefive-yearperiod should have been tolledfi-omthe date a
default judgment was entered against Richards imtil the date Richards obtained relief
from default. As a threshold matter, no default judgment was entered. Moreover, in the
trial court, Naghash did not raise this argument. "It is elementary that an appellant may
not raise a new theory on appeal when the theory rests on facts that were either
controverted or notfiillydeveloped in the trial court. [Citation.] This rule of waiver
specifically applies to fact-based tolling arguments." {Tanguilig v. Neiman Marcus
Group, Inc. (2018) 22 Cal.App.5th 313, 330.) "The determination whether it was
'impossible, impracticable, orfiitile'to bring a case to trial within a given time period is
generally fact specific, depending on the obstacles faced by the plaintiff in prosecuting
the action and the plaintiffs exercise of reasonable diligence in overcoming those
obstacles. [Citation.] Nonetheless, there are some circumstances in which it can be said
almost invariably that the exception applies. Such is the case when a default judgment
has been entered in favor of the plaintiff, effectively bringing the litigation to a
standstill." {Howard v. Thrifty Drug & Discount Stores {\995) 10 Cal.4th 424, 438.)
The entry of a default alone is different: "[Cjourts have held that a reasonable period of
time between the defendant's default and the entry of the default judgment should also be
excluded from the calculation of thefive-yearperiod." {Id. at pp. 438-439, italics added.)
Naghash has waived any argument that the period of default should be excluded from the
five-year period by failing to raise this fact-based argument in the trial court.
D. Waiver
Naghash now asserts Richards waived any objection to her failure to bring the
action to trial withinfiveyears by not objecting to her motion to set the matter for trial.
Whether a waiver has occurred is also usually a factual question. {Lynch v. California
Coastal Com. (2017) 3 Cal.5th 470,476.) " ' "[Wjaiver" means the intentional
relinquishment or abandonment of a known right.' [Citations.] Waiver requires an
existing right, the waiving party's knowledge of that right, and the party's 'actual
intention to relinquish the right.' [Citation.] ' "Waiver always rests upon intent." '
[Citation.] The intention may be express, based on the waiving party's words, or implied,
based on conduct that is ' "so inconsistent with an intent to enforce the right as to induce
a reasonable belief that such right has been relinquished." ' " {Id. at p. 475.) Again,
Naghash's claim fails because it was not raised in the trial court. {Tanguilig v. Neiman
Marcus Group, Inc., supra, 22 Cal.App.5th at p. 330; see also Dimmickv. Dimmick
(1962) 58 Cal.2d 417, 422 ["It is settled that points not raised in the trial court will not be
considered on appeal"].)
E. Appeal
Naghash contends the pendency of her previous appeal made it iinpracticable for
her to proceed to trial even though the action was not stayed at that time.
Richards was not a party to the prior appeal, and a plaintiff is not relieved from
proceeding against one defendant merely because an action could not be brought to trial
against another defendant during an appeal. {Arnold v. State of California (1969) 273
Cal.App.2d 575, 585.) Our Supreme Court has explained that where a plaintiff could
have severed his causes of action and proceeded separately against a co-defendant, the
trial court must "examine the relationships between the causes of action, the expense and
difficulty likely to be engendered by separate trials, the diligence and good faith efforts of
the plaintiff, the prejudice br hardship to the instant defendants, or other relevant matters"
to determine whcither it was nonetheless impracticable or fiitile for the plaintiff to proceed
to trial against the co-defendant within the statutory period. {Brunzell Construction Co.
V.Wagner {1910) 2 C2X.Zd5A5, 555 {Brunzell).)
Naghash does not cite Brunzell or meaningfiiUy engage in this analysis. She
alleges without citation that there are "common underlying allegations of liability,
damages, and causation." " 'It is the duty of a party to support the arguments in its briefs
by appropriate reference to the record, which includes providing exact page citations.'
[Citations.] If a party fails to support an argument with the necessary citations to the
record, that portion of the brief may be stricken and the argument deemed to have been
waived." {Duarte v. Chino Community Hospital (1999) 72 Cal.App.4tii 849, 856.)
Moreover, "[w]e are not required to examine undeveloped claims or to supply arguments
for the litigants." {Allen v. City ofSacramento (2015) 234 Cal.App.4th 41, 52.) Naghash
fiirther asserts she could not have proceeded to trial against Richards during the pendency
of the appeal because "that would have subjected [her] to multiple and different trials,
multiple and different judgments and different and possibly contradictory results. If the
court of appeal would have reversed the First Appeal, then [Naghash] would have to
submit her claim to two (2) different jur[ies] or trier[s] of fact, and potentially obtain two
(2) different results with two (2) different judgment[s]." (Italics added.) The possibility
of two judgments alone is insufficient under Brunzell. All of this is still more detail than
she gave the trial court. There, she argued only that because of the "one judgment rule,"
"it would have beenfiitileto piecemeal the action and seek trial and separate judgment
against each individual defendant." The trial court noted that her claim was conclusory,
and correctly explained that the onefinaljudgment rule does not prohibit separate
judgments against different defendants. {Cuevas v. Truline Corp. (2004) 118
Cal.App.4th 56, 60.) Rather, it prohibits "appealing from partial dispositions while other
unresolved matters remain pending against other parties." {Id. at p. 61.) Naghash has not
demonstrated that the trial court wrongly applied the law or otherwise abused its
discretion when it dismissed her case against Richards. Accordingly, we affirm the
judgment dismissing Naghash's action against Richards.
m. DISPOSITION
The judgment is affirmed. Respondent Terry Richards shall recover his costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
RENNER, J. ~
We concur:
HULL, Acting P. J.
MAURO, J.
IN T H E
Court ot ^ptal of f^t £>tate of CaUfomia
IN AND F O R THE
THIRD APPELLATE DISTRICT
MAILING LIST
Re: Naghash v. Richards
C084640
Sacramento County
No. 34201100113923CUPOGDS
I
Copies of this document have been sent by mail to the parties checked below unless they were
noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is
not checked below, service was not required. '
Roger E. Naghash
Attorney at Law
19800 MacArthur Blvd. Suite 1100
Irvine, CA 92612-8433
Ralph E. Laird
Law Office of Ralph Laird
210 Magnolia Avenue, Suite 2
Auburn, CA 95603
Honorable Raymond M. Cadei
Judge of the
^ Sacramento County Superior Court
720 Ninth Street
Sacramento, CA 95814
Preview
INTHE ourt of Appeal of the State of California IN AND FOR THE THIRD APPELLATE DISTRICT ASHLEY M. NAGHASH, Plaintiff and Appellant, v. TERRY RICHARDS, Defendant and Respondent. C084640 Sacramento County No. 34201100113923CUPOGDS REMITTITUR TO TRIAL COURT CLERK I, ANDREA K. WALLIN-ROHMANN, Clerk of the Court of Appeal of the State of California for th^ Third Appellate District, do hereby certify that the attached opinion or order, previously provided to the parties, is a true and correct copy ofthe original opinion or orde^entered in the above entitled cause that has now become final. Respondents to recover costs on appeal. WITNESS my hand and the seal of the Court affixed at my office this Sth day of January 2019. V: ANDREA K. WALLIN OHMANN Clerk By: Gimli Willia Deputy Clerk ' Receipt of the original remittitur in the above case is hereby acknowledged. Dated: JAN 1 0 2018 Trial Court Clerk cc: See Mailing List JAN 1 0 2019 -K. Michaiiri _ Deputy Clerk INTHE Court of Appeal of the State of California IN AND FOR THE THIRD APPELLATE DISTRICT ' MAILING LIST Re: Naghash v. Richards Cp84640 Sacramento County Super. Ct. No. 34201100113923CUPOGDS Copies of this document have been sent by mail to the parties checked below unless they were noticed electronically. If a party does not appear on the TrueFilinjg Servicing Notification and is not checked below, service was not required. Roger E. Naghash Attorney at Law 19800 MacArthur Blvd. Suite 1100 Irvine, CA 92612-8433 Ralph E. Laird Law Office of Ralph Laird 210 Magnolia Avenue, Suite 2 Auburri, CA 95603 acparn^nto;'6ounty Superior Court Oj^ihth'Street ^Sadramentof CA 95814 Court of Appeal, Tliird Appellate Districl Andrea K. Wallin-Rohmann. Clerk' Electronically FOED on 10/30/20IS by G. Williams. Deputy Clerk NOT TO BE PUBLISHED 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. IN THE COIJRT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ASHLEY M. NAGHASH, C084640 Plaintiff and Appellant, (Super. Ct. No. 34201100113923CUPOGDS) TERRY RICHARDS, Defendant and Respondent. Ashley M. Naghash appeals from the trial court's entry ofjudgment dismissing her complaint as to defendant Terry Richards for failure to bring her action to trial within five years as required by Code of Civil Procedure section 583.310.^ Because she has demonstrated no error in the trial court's decision, we affirm the judgment. * Undesignated statutory references are to the Code of Civil Procedure. I. BACKGROUND On November 14, 2011, Naghash filed this action'against Richards and other defendants, including the Board of Trustees of the Califomia State University; the State of Califomia; the Califomia State University; Califomia State University, Sacramento (CSUS); Alexander Gonzalez, then president of CSUS; and Michael Speros, then "director of Housing and Residential Life at CSU" and CSUS (collectively, the University defendants).^ The causes of actionfi-amedby the complaint related, in part, to allegations that plaintiff was sexually assaulted and raped by Richards in a CSUS dormitory. On May 31, 2013, Naghash filed a request for entry of default against Richards, and a default was entered the same day. On September 23, 2013, Richards filed his first motion to set aside the default and default judgment (if any) on the basis of improper service. On June 6, 2014, the trial court granted Richards' second motion, and set aside the default. The ruling noted that a default judgment had not yet been entered against Richards. Meanwhile, on November 13, 2013, Naghash appealed the trial court's judgment of dismissal as to the University defendants after an order sustaining a demurrer as to those defendants. On July 11, 2016, Naghash filed a nlotion to stay the action and toll the five-year period pending the appeal. Before the trial court heard the matter, we had affirmed the judgment dismissing the University defendants in Naghash v. Board of Trustees (July 29, 2016, C075207) [nonpub. opn.]. The trial court granted a stay for 30 days from the date of our decision until August 29, 2016. On October 27, 2016, we issued the remittitur. ^ The most recent complaint names four other individual defendants, three of whom were then students at CSUS. It is unclearfi-omthe record before us to what extent these individual defendants were ever properly served or remain in the action. On December 1,2016, Naghashfileda motion to schedule a case management conference and a trial setting. On December 21,2016, the trial court issued a tentative ruling granting the motion. The record on appeal contains nothingfiirtheron this motion. On January 11,2017, Richards moved to dismiss the action for failure to bring it to trial by December 14, 2016 (five years plus the 30 day stay). In opposition, Naghash raised two arguments: (1) thefive-yearperiod under section 583.310 does not begin until the summons and complaint are served on the defendant and (2) the period was tolled during her appeal against the University defendants because, "[bjased on [the] one judgment rule," "it would have been fUtile to piecemeal the action and seek trial and separate judgment against each individual defendant."^ The trial court granted Richards' motion. The court began by stating that it "need not consider the opposition's claim that defendant Richards 'actively evaded service of summons'fi*omDecember 2012 through February 2013 since the objections to the evidence cited as support have been sustained." Regardless, any delay in service of the complaint or defendant's answer was not germaine to the question of when the five-year period began to run because the period commences upon thefilingof the complaint. The court explained that section 583.340 provides the only bases for tolling the five-year period, and Naghash's tolling argument relied solely on subdivision (c), which applies when bringing an action to trial is impossible, impracticable orfiitile.Thie court found that Naghash had "fallen far short of her burden to avoid dismissal under the mandatory provisions of [section] 583.310. [TO First, [Naghash] has in support of her opposition included no evidence whatsoever that tends to demonstrate how or why it would have been impossible, impracticable orfiitileto proceed to trial against defendant Richards ^ On July 23, 2018, Naghashfileda motion to augment the record to include these opposition papers. By an August 1,2018, order, we deferred ruling on the motion, which we now grant. while she simultaneously appealed CSU's judgment of dismissal. Therefore, [Naghash] failed to carry her burden of providing 'clear and convincing proof of impossibility, impracticability, or fiitility. [ ^ Second, asidefi-omthis glaring lack of evidence, this 1 Court can find no theoretical merit to [Naghash]'s conclusory claim of impossibility, impracticability or fiitility in timely bringing to trial her claims against defendant Richards for sexual assault and battery. After all, although the claims against CSU would necessitate proof of the rape allegedly committed by defendant Richards, the opposite is not true. The claims against defendant Richards are in no way dependent on the outcome of the claims against CSU but are instead totally separate and distinct." Lastly, the court explained that the "one judgment rule" did not operate as a bar to Naghash proceeding to trial with her claims against Richards while her appeal was pending. The trial court entered a judgment of dismissal as to Richards on March 6, 2017. Naghash timely appealed. IL DISCUSSION A. Standard of Review "An action shall be brought to trial within five years after the action is commenced against the defendant." (§ 583.310.) An action that is not brought within this time must be dismissed. (§ 583.360, subd. (a).) However, "[i]n computing the time within which an action must be brought to t r i a l . . . , there shall be excluded the time during which any of the following conditions existed: [Tj] (a) The jurisdiction of the court to try the action was suspended. [*|f] (b) Prosecution or trial of the action was stayed or enjoined. [^ (c) Bringing the action to t r i a l . . . was impossible, impracticable, or futile." (§ 583.340.) "[T]he trial court must determine what is impossible, impracticable, or fiitile 'in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] 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 v. E-Commerce Exchange, /«c. (2011) 51 Cal.4th 717, 730-731.) "The question of impossibility, impracticability, or fiitility is best resolved by the trial court, which 'is in the most advantageous position to evaluate these diverse factual matters in the first instance.' [Citation.] The plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340[, subdivision] (c) exception. .. . The trial court has discretion to determine whether that exception applies, and its decision will be upheld unless the plaintiffhas proved that the trial court abused its discretion." {Bruns v. E-Commerce Exchange, Inc., supra, 51 Cal.4th at p. 731.) "Under that standard, '[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 v. Fidelity Nat. Title Ins. Co. (2016)62Cal.4th 1081, 1100.) B. Alleged Evasion of Service Naghash argues the time during which Richards was not amenable to service or actively evaded service should be excluded from thefive-yearperiod. "Lack of amenability to process is not an excuse under the current 5-year statute." (6 Wikin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 407, p. 852.) As to evasion of service, as Richards notes, Naghash's opening brief does not cite to any evidence that she submitted to the trial court in connection with her opposition to his motion to dismiss. Naghash sought to augment the record when shefiledher reply brief, but this cannot cure the issue because any arguments raised or only supported by authority on reply have been waived. {People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Regardless, the trial court explained that it sustained objections to the evidence submitted in support of this claim. Naghash raises no argument on appeal that the objections were improperly sustained. As such, Naghash has failed to demonstrate any error with respect to the trial court's ruling on this issue. C. Entry ofDefault Naghash contends thefive-yearperiod should have been tolledfi-omthe date a default judgment was entered against Richards imtil the date Richards obtained relief from default. As a threshold matter, no default judgment was entered. Moreover, in the trial court, Naghash did not raise this argument. "It is elementary that an appellant may not raise a new theory on appeal when the theory rests on facts that were either controverted or notfiillydeveloped in the trial court. [Citation.] This rule of waiver specifically applies to fact-based tolling arguments." {Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 330.) "The determination whether it was 'impossible, impracticable, orfiitile'to bring a case to trial within a given time period is generally fact specific, depending on the obstacles faced by the plaintiff in prosecuting the action and the plaintiffs exercise of reasonable diligence in overcoming those obstacles. [Citation.] Nonetheless, there are some circumstances in which it can be said almost invariably that the exception applies. Such is the case when a default judgment has been entered in favor of the plaintiff, effectively bringing the litigation to a standstill." {Howard v. Thrifty Drug & Discount Stores {\995) 10 Cal.4th 424, 438.) The entry of a default alone is different: "[Cjourts have held that a reasonable period of time between the defendant's default and the entry of the default judgment should also be excluded from the calculation of thefive-yearperiod." {Id. at pp. 438-439, italics added.) Naghash has waived any argument that the period of default should be excluded from the five-year period by failing to raise this fact-based argument in the trial court. D. Waiver Naghash now asserts Richards waived any objection to her failure to bring the action to trial withinfiveyears by not objecting to her motion to set the matter for trial. Whether a waiver has occurred is also usually a factual question. {Lynch v. California Coastal Com. (2017) 3 Cal.5th 470,476.) " ' "[Wjaiver" means the intentional relinquishment or abandonment of a known right.' [Citations.] Waiver requires an existing right, the waiving party's knowledge of that right, and the party's 'actual intention to relinquish the right.' [Citation.] ' "Waiver always rests upon intent." ' [Citation.] The intention may be express, based on the waiving party's words, or implied, based on conduct that is ' "so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished." ' " {Id. at p. 475.) Again, Naghash's claim fails because it was not raised in the trial court. {Tanguilig v. Neiman Marcus Group, Inc., supra, 22 Cal.App.5th at p. 330; see also Dimmickv. Dimmick (1962) 58 Cal.2d 417, 422 ["It is settled that points not raised in the trial court will not be considered on appeal"].) E. Appeal Naghash contends the pendency of her previous appeal made it iinpracticable for her to proceed to trial even though the action was not stayed at that time. Richards was not a party to the prior appeal, and a plaintiff is not relieved from proceeding against one defendant merely because an action could not be brought to trial against another defendant during an appeal. {Arnold v. State of California (1969) 273 Cal.App.2d 575, 585.) Our Supreme Court has explained that where a plaintiff could have severed his causes of action and proceeded separately against a co-defendant, the trial court must "examine the relationships between the causes of action, the expense and difficulty likely to be engendered by separate trials, the diligence and good faith efforts of the plaintiff, the prejudice br hardship to the instant defendants, or other relevant matters" to determine whcither it was nonetheless impracticable or fiitile for the plaintiff to proceed to trial against the co-defendant within the statutory period. {Brunzell Construction Co. V.Wagner {1910) 2 C2X.Zd5A5, 555 {Brunzell).) Naghash does not cite Brunzell or meaningfiiUy engage in this analysis. She alleges without citation that there are "common underlying allegations of liability, damages, and causation." " 'It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.' [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." {Duarte v. Chino Community Hospital (1999) 72 Cal.App.4tii 849, 856.) Moreover, "[w]e are not required to examine undeveloped claims or to supply arguments for the litigants." {Allen v. City ofSacramento (2015) 234 Cal.App.4th 41, 52.) Naghash fiirther asserts she could not have proceeded to trial against Richards during the pendency of the appeal because "that would have subjected [her] to multiple and different trials, multiple and different judgments and different and possibly contradictory results. If the court of appeal would have reversed the First Appeal, then [Naghash] would have to submit her claim to two (2) different jur[ies] or trier[s] of fact, and potentially obtain two (2) different results with two (2) different judgment[s]." (Italics added.) The possibility of two judgments alone is insufficient under Brunzell. All of this is still more detail than she gave the trial court. There, she argued only that because of the "one judgment rule," "it would have beenfiitileto piecemeal the action and seek trial and separate judgment against each individual defendant." The trial court noted that her claim was conclusory, and correctly explained that the onefinaljudgment rule does not prohibit separate judgments against different defendants. {Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, 60.) Rather, it prohibits "appealing from partial dispositions while other unresolved matters remain pending against other parties." {Id. at p. 61.) Naghash has not demonstrated that the trial court wrongly applied the law or otherwise abused its discretion when it dismissed her case against Richards. Accordingly, we affirm the judgment dismissing Naghash's action against Richards. m. DISPOSITION The judgment is affirmed. Respondent Terry Richards shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).) RENNER, J. ~ We concur: HULL, Acting P. J. MAURO, J. IN T H E Court ot ^ptal of f^t £>tate of CaUfomia IN AND F O R THE THIRD APPELLATE DISTRICT MAILING LIST Re: Naghash v. Richards C084640 Sacramento County No. 34201100113923CUPOGDS I Copies of this document have been sent by mail to the parties checked below unless they were noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is not checked below, service was not required. ' Roger E. Naghash Attorney at Law 19800 MacArthur Blvd. Suite 1100 Irvine, CA 92612-8433 Ralph E. Laird Law Office of Ralph Laird 210 Magnolia Avenue, Suite 2 Auburn, CA 95603 Honorable Raymond M. Cadei Judge of the ^ Sacramento County Superior Court 720 Ninth Street Sacramento, CA 95814