Motion for Summary Adjudication in GULF COAST ASPHALT COMPANY L L C vs. LLOYD, RUSSELL T| Trellis.Law

On October 13, 2011 a Motion,Ex Parte was filed involving a dispute between Gulf Coast Asphalt Company L L C, Trifinery Inc, John M O'Quinn And Associates L L P (N K A John M O'Quinn And, John M O'Quinn & Associates L L P, Lloyd, Russell T, and Ed Mattingly & Associates Pllc (A Professional Limited Liability, Mattingly, Edward A, Tudzin, Ellis A, John M O'Quinn & Associates L L P, John M O'Quinn & Associates P L L C, Lloyd, Russell T, for MALPRACTICE/LEGAL in the District Court of Harris County.

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Cause No. 2011-61780

GULF COAST ASPHALT COMPANY, § IN THE DISTRICT COURT OF
L.L.C. AND TRIFINERY, INC.

VS.

RUSSELL T. LLOYD AND
JOHN M. O’°QUINN AND HARRIS COUNTY, TEXAS
ASSOCIATES, L.L:P.

VS.

EDWARD A. MATTINGLY, EDWARD
A. MATTINGLY AND ASSOCIATES,
PLLC, AND ELLIS A. TUDZIN 80 JUDICIAL DISTRICT

NON-TEXAS CASES
CITED IN DEFENDANTS’ JOHN M. O’QUINN AND
ASSOCIATES, L.L.P, AND RUSSELL T. LLOYD’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

Kenneth R. Breitbeil
McFALL, BREITBEIL & SMITH, P.C.
1250 Four Houston Center
1331 Lamar Street
Houston, Texas 77010-3027
Telephone: (713) 590-9330
Facsimile: (713) 590-9399
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TABLE OF AUTHORITIES OF NON-TEXAS CASES

Borglind v. Bombardier, Ltd., 121 Cal. App. 3d 276 (1981) 20, 24

Breacher v. Breacher, 141 Cal. App. 3d 89 (1983) 23,24

Charles Reinhart Co. v. Winiemko, 513 N.W.24 773 (Mich. 1994) 14

Chocktoot v. Smith, 571 P.2d 1255 (Or. 1977) ..ssssesseoses 14

Denham v. Superior Court, 2 Cal. 34 557 (1970)... 20

Govea v. Superior Court, 26 Cal. App. 2d. 27 (1938) 17, 21,22
Harline v, Barker, 912 P.2d 433 (Utah 1996). 14

Holder v. Sheet Metal Worker's Int’l Ass’n, 121 Cal. App. 3d 321 (1981) 20, 23, 24
9 Lombardo v. Huysentruyt, 91 Cal. App. 4th 656 (2001) 14

10, Miller & Lux, Inc. v. Superior Court, 192 Cal. 333 (1923) 17, 18
11. Piscitelli v. Friedenberg, 87 Cal. App. 4th 953 (2001). 14

12. Rio Vista Mining Co. v. Superior Court, 187 Cal. 1 (1921) 18

13. Smith v. Bear Valley Milling & Lumber Co., 26 Cal. 2d 590 (1945)... 19

14, Steves v. Bernstein, Shur, Sawyer & Nelson, P.C., 718 A.2d 186 (Me. 1998) eteeeren 14
15. Tamburina v. Combined Ins. Co. of America, 147 Cal. App. 4th 323 (2007). 16

16. Tresway Aero, Inc. v. Superior Court, 5 Cal. 34 431 (1971) 20

17. Ward v. Levin, 161 Cal. App. 3d 1026 (1984) 23

18. Woley v. Turkus, 51 Cal. 2d 402 (1958) 20, 21, 22, 23

Statutes
19. 42 U.S.C. § 6972(a)(1)(A)

20, 42 U.S.C. § 6972(a)(1)(B)
21, CAL. Civ. Proc. Cope § 437c (f)(1)
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22. Cal. Code of Civ. Proc. § 583.130 24

23, Cal. Code of Civ, Proc. § 583.310 4, 8,9, 16

24, Cal. Code of Civ. Proc. § 583.330 8, 9, 10, 15, 16, 17, 18, 19, 20, 25
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Westlaw.
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121 Cal App.34-276, 175 Cal-Rpir. 150
(Cite as: 121 Cal.App.3d 276)

the plaintiff into a false sense of security resulting
GABY BORGLUND, Plaintiff and Appellant, in inaction, and there is reasonable reliance, estop~
pel must be available to prevent the defendant from
BOMBARDIER, LTD., a al., Defendants and Re- profiting from his deception. (Cpinion by Smith, J.,
spondents. with Taylor, P. J., and Miller, J., concurring.)

Civ. No, 47134, HEADNOTES
Classified to California Digest of Official Reports
Court of Appeal, FirstDistrict, Division 2, Califor- (1) Dismissal and Nonsuit § 40--Involuntary Dis-
nia. missal--Delay in Bringing Action to ‘Trial (Code
Jul 2, 1981. Civ. Proc., § 583)--Relief--Equitable Estoppel.
In a civil damage action filed by a Swedish cit-
SUMMARY izen, the trial court erred in granting defendants’
Seven years after the complaint was filed in an motion to dismiss pursuant to Code Civ. Proc., §
action for personal injuries suffered in a snow- 583, subd. (b), for plaintiffs want of prosecution in
mobile accident which occurred in Sweden, the trial failing to bring the case to trial within five years,
court granted defendants’ motion ta dismiss pursu- without considering the equitable doctrine of estop-
ant to Code Civ. Proc., § 583, subd. (b), for pel as an implied exception to the five-year dis-
plaintiffs want of prosecution in failing to bring the missal statute, where in his declaration in opposi-
case to trial within five years. In his declaration in tion to defendants’ motion plaintiff's attorney stated
opposition to defendants’ motion, plaintiffs attor- that prior to the running of the statutory period de-
ney stated that prior to the running of the statutory fendants' counsel had stated that in his view Code
period defendants’ counsel had stated that in. his Civ. Proc., § 583, subd. (b), was not applicable to
view Code Civ. Proc., § 583, subd. (b), was not ap- an out-of-country plaintiff, and where it was also
plicable to an out-of-country plaintiff. It was also alleged that defendants’ counsel said he would not
alleged that defendants’ counsel said he would not seek a motion to dismiss under the five-year statute,
seek a motion to dismiss under the five-year statute, that numerous actions by defendants after the stat-
that numerous actions by defendants after the stat- utory period evidenced an intention to proceed to
utory period evidenced an intention to proceed to trial, and that plaintiff had relied on the statements
trial, and that plaintiff had relied on the statements and actions by defendants.
and actions by defendants. The trial court con- {See Cal.Jur.3d, Actions, § 253; Am.Jur.2d, Dis-
cluded it did not have the discretion to consider missal, Discontinuance and Nonsuit, § 54.]
principles of estoppel in ruling upon defendants’ COUNSEL
motion to dismiss. (Superior Court of Sania Clara
County, No. 257009, Marilyn Pestanino Zecher, Thomas J. LoSavio, Jon T. Craig, Danicl U. Smith
Judge.) and Belli & Choulos, for Plaintiff and Appellant.

The Court of Appeal reversed and remanded Dean E. Stenberg and Stenberg & McKenney, for
for a new hearing on defendants' motion to dismiss Defendants and Respondents.
consistent with its holdings. The court held the
equitable doctrine of estoppel applies fully to mo-
tions brought under Code Civ. Proc., § 583, subd. SMITH, J.
{b). Thus, the court held, if a trial court encounters This is an appeal by plaintiff and appellant
statements or conduct by a defendant which lulls from a judgment in favor of defendants and re-

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121 Cal App.3d 276, 175 Cal. Rptr. 150
(Cite as: 121 Cal.App.3d 276)

spondents after the trial court entered an order dis- motion, appellant's attorney stated that prior to the
missing her action pursuant to *278Code of Civil running of the statutory period respondents’ counsel
Procedure section 583, subdivision (b), 7%! for stated that in his view section 583, subdivision .(b)
appellant's want of prosecution in failing to bring was not applicable to an out-of-country plaintiff. It
the case to trial within five years. The trial court was also alleged that respondents’ counsel said that
concluded it did not have discretion to consider he would not seck a motion to dismiss if the case
principles of estoppel in ruling upon respondents’ progressed beyond the five-year anniversary of the
motion to dismiss. filing of the complaint. Finally, the declaration in
opposition alleged nemcrous actions by respond-
FN1 Code of Civil Procedure section 583, ents after the statutory period that evidenced an in-
subdivision (b) states: “Any action hereto- tention to proceed to trial in spite of the running of
fore or hereafter commenced shall be dis- the five-ycar statute. Respondents’ counsel denied
missed by the court in which the same making any representation that he would not assert
shall have been commenced or to which it the five-year statute,
may be transferred on motion of the de-
fendant, after due notice to plaintiff or by At the hearing on respondents’ motion, the
the court upon its own motion, unless such court stated that it believed that section 583, subdi-
action is brought to trial within five years vision (b) mandated dismissal unless it was imprac-
after the plaintiff has filed his action, ex- tical to bring the case to trial within five years, or
cept where the parties have filed a stipula- unless the parties *279 had stipulated in writing or
tion in writing that the time may be cxten- in court before a court reporter that the case would
ded.” not be dismissed if not brought to trial within that
time. The motion to dismiss was granted on Octo-
All statutory references hereinafter are to ber 3, 1978, the court finding that “there was no im-
the Code of Civil Procedure unless other- possibility or impracticability of the case having
wise indicated. been brought to trial within the statutory period.”
Appellant Gaby Borglund, a Swedish citizen, The sole issue in this case is whether the trial
brought this action for personal injuries suffered in court erred in failing to consider equitable estoppel
a snowmobile accident which occurred in Sweden. as an implied exception to the five-year dismissal
In her complaint, which was filed on June 10, 1971, statute.
appellant alleged that respondents: (1) negligently
instracted her regarding the oporation of the snow- The Legislature in an effort to compel reason-
mobile, (2) failed to warn her of known defects in able diligence in the prosecution of actions enacted
the manufacture of the vehicle, (3) failed to obtain a statutory scheme in which section 583, subdivi-
worker's compensation insurance, and (4) misled sion (b) mandates dismissal unless an action is
her into believing she would be compensated for in- brought to trial within five years after the filing of
Juries suffered: the complaint, and section 581a mandates dismissal
unless the summons is served and returned within
On June 27, 1978, over seven years after the three years after the action is filed. Both of these
filing of the complaint, respondents noticed a mo- sections are subject to the exception that the parties
tion to dismiss the action for appellant's failure to may file a written stipulation extending the limita-
bring the case to trial within five years, pursuant to tions period.
section 583, subdivision (b).
The courts, despite the seemingly mandatory
In his declaration in opposition to respondents' language of these sections, have recognized certain

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121 Cal App.3d 276, 175 Cal Rptr. 150
(Cite as: 121 Cal.App.3d 276)

implied exceptions. Thus, dismissal has been held Id. at pp. 441-442.)
‘improper where compliance is impossible for juris-
dictional or other reasons. (See, generally Rose v. Refusing to follow the limited and rigid ap-
Knapp (1951) 38 Cal.2d 114, 117 [ 237 P.2d 981); proach to section 581a of the past, the court rejec-
Christin v. Superior Court (1937) 9 Cal.2d 526, 530 ted the argument that estoppel should be limited to
[ 7) P.2d 205, 112 ALR. 1153); Estate of Morris- the facts of two prior cases: a misrepresentation to
on (1932) 125 Cal.App. 504 [ 14 P.2d 102); Kinard an unrepresented plaintiff ( Flamer v. Superior
v. Jordan (1917) 175 Cal. 13, 15-16 [ 164 P. 894}.) Court (1968) 266 Cal.App.2d 907 [ 72 Cal.Rptr.
The impossibility exception was later extended to 561)) and defendants' stipulation in open court to an
cases in which compliance was either impracticable extension beyond the statutory period ( Woley v.
or futile. (See Rose v. Knapp, supra., 38 Cal.2d at Turkus (1958) 51 Cal.2d 402 [ 334 P.2d 12). The
p. 117; City of Pasadena v. City of Alhambra court observed: “We perceive no logical reason
(1949) 33 Cal.2d 908, 916-917 [ 207 P.2d 17], Pa why the doctrine of estoppel should be so restric-
cific Greyhound Lines v. Superior Court (1946) 28 ted. Stipulations in open court are not the only
Cal.2d 61, 67 [ 168 P.2d 665]; Christin v. Superior words or conduct which reasonably and commonly
Court, supra., 9 Cal.2d at p. 533.) induce reliance by counsel. When the defendant in-
duces the plaintiff to delay service of summons, or
The issue here gocs beyond either the statutory to overlook errors in service, and plaintiff's reliance
or heretofore judicially recognized exceptions to is reasonable, an estoppel is essential to prevent de-
the mandate of section 583, subdivision (b): Can fendant from profiting from his deception. In such a
the words or conduct of a defendant inducing the case, any distinction between words spoken in open
plaintiff to delay bringing his case to trial act as an court or over the telephone, or between words
estoppel against assertion of the five-year dismissal spoken to an attomey or to a layman would be
statute? purely arbitrary.” (Id. at pp. 439-440.)
Until recent years, the couris rejected the Although we are not aware of any case which
concept that unethical or unconscionable conduct has, clearly and unequivocally recognized equitable
could defeat the operation of either sections 583, estoppel as an exception to section 583, subdivision
subdivision (b) or 581a. (See 4 Witkin, Cal. Proced- (b), several cases have impliedly upheld this excep-
ure (2d ed. *280 1971) Proceedings Without Trial, tion. The California Supreme Court, in Woley v.
§ 108, p. 2773.) In 1971, the Supreme Court of Turkus, supra., 51 Cal2d at p. 409, reversed an or-
California, in Tresway Aero, Inc. v, Superior Court der of dismissal brought under section 583, subdivi-
(1971) 5 Cal.3d 431, 439 [ 96 Cal.Rptr. 571, 487 sion (b) based upon the impracticability exception
P.2d 1211), clearly enunciated the mle that equit- but added that “the defendant's oral request for an
able estoppel is available to a plaintiff who has extension of time, made in open court and granted
failed to comply with the requirements of scction .. and his conduct after that date, operated as an es-
581a in reasonable reliance upon the words or con- toppel against his contention to the contrary.”
duct of the defendant. The court held that, notwith- (Italics added.) In Wright v. Groom Trucking Co.
standing the fact that the service which bad been (1962) 206 Cal.App.2d 485, 494-496 [ 24 Cal-Rptr.
made within the three-year statutory period was de- 80], the court examined the claim of estoppel, but
fective, defendant was estopped to assert the three- upheld the trial judge's determination that there was
year statute by his request for, and plaintiff's agree- no inducement by the defendant *281 or reliance by
ment to, additional time to plead which led plaintiff the plaintiff. (See also Farrar, Herrick & Asso-
to believe that further service, albeit curative and ciates v. Safecare Co. (1981) 115 Cal.App.3d.123,
within the time for service, would be duplicatory. ( 131 [171 Cal.Rptr. 191] (hg. den. Mar. 18, 1981);

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Page 4
12] Cal.App.3d 276, 175 Cal Rptr. 150
(Cite as: 121 Cal.App.3d 276)

Mustalo v. Mustalo (1974) 37 CalApp.3d 580, triumph over form.
584-585 [ 112 Cal-Rptr. 594].)
In view of the conflict in the affidavits of coun-
In Tresway, the court observed that its prior de- sel for appellant and respondents, we do not decide
cision in Woley had, at least in part, relied upon the whether respondent's counsel made statements or
defense of estoppel with regard to section 583, sub- engaged in conduct likely to induce appellant to
division (b) and concluded: “[w]e perceive no reas- permit the running of the five-year statute. Nor do
on why the logic of [Woley and other cases] docs we decide whether, assuming *282 such statements
not apply with equal force to section 58a.” ( or conduct, appellant's reliance was reasonable.
Tresway Aero, Inc. v. Superior Court, supra. 5 ‘These are issues of fact for the trial court.
Cal.3d 431, 438.) Indeed, case law has consistently
applied the same exceptions to both sections. (See The judgment is reversed and the case is re-
Wyoming Pacific Oil Co. v. Preston (1958) 50 manded for a new hearing on respondents’ motion
Cal.2d 736, 740-741 { 329 P.2d 489]; Flamer v. Su- to dismiss in light of the principles expressed in this
perior Court, supra., 266 Cal.App.2d 907, 912-913; opinion.
see also Hocharian v. Superior Court (1981) 28
Cal.3é 714, 719 [ 170 Cal.Rptr. 790, 621 P.2d Taylor, P. J., and Miller, J., concurred. *283
829].) Given the similarity in the language and pur-
pose of these sections, we see no logical reason for Cal. App.1 Dist.
Anaking a distinction. Borglund v. Bombardier, Ltd.
121 Cal.App.3d 276, 175 Cal.Rpir. 150
Respondents rely upon Camille's Corp. v. Su-
perior Court (1969) 270 Cal.App.2d 625 [ 75 END OF DOCUMENT
Cal.Rptr. 868] which refused to recognize estoppel
as an implied exception to section 583, subdivision
(b). However, the Camille case was decided prior
to, and its reasoning was expressly rejected by, our
Supreme Court's decision in Tresway.

(1)We hold, consistent with Tresway, that the
equitable doctrine of estoppel applics fully to mo-
tions brought under section 583, subdivision (b).
Our holding gives full flower to the “duty of the tri-
al court to examine all the acts and conduct of the
partics, and render a discretionary decision with a
view to furthering the ends of justice.” ( Treswe
Aero, Inc. v. Superior Court, supra., 5 Cal.3d 431,
440.) If a trial court encounters statements or con-
duct by a defendant which lulls the plaintiff into a
false sense of security resulting in inaction, and
there is reasonable reliance, estoppel must be avail-
able to prevent defendant from profiting from his
deception. By following the mile of Tresway, we
move away from the rigid application of a few lim-
ited exceptions to scction 583, subdivision (b), and
rather adopt a rule that permits substantial justice to

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141 Cal App.3d 89, 190 Cal Rptr. 112
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c al was originally set for a date within the five-year
FLORENCE BREACHER, Plaintiff and Appellant, period, and ail subsequent delays in bringing the
matter to trial fell within well-established tolling
HAROLD BREACHER et al., Defendants and Re~ periods or exceptions to the statute. (Opinion by
spondents. Ashby, J., with Feinerman, P. J., and Hastings, J.,
concurring.)
Civ. No. 64986.
HEADNOTES
Court of Appeal, Second District, Division 5, Cali- Classified to California Digest of Official Reports
fornia. (1) Dismissal and Nonsuit § 32--Involuntary Dis-
Mar 21, 1983. missal--Delay in Bringing Action te Trial (Code
Civ. Proc., § 583)-Five-year Limitation--Excuses,
SUMMARY Exclusions, and Extensions--Court Congestion.
The trial court dismissed plaintiffs action for Where plaintiff has obtained a trial date and is
fraud pursuant to Code Civ. Proc., § 583, subd. (b), prevented from going to trial because no courtroom
for failure to bring the action to trial within five is open, the delay for court congestion is not coun-
years after filing of the complaint. Counsel for both ted in calculating the five-year period of Code Civ.
parties mistakenly believed that the complaint had Proc., § 583, subd. (b).
been filed more than 13 months after the actual fil- [See Cal.Jur.3d, Actions, § 253; Am.Jur.2d, Dis-
ing date and neither counsel discovered the mistake taissal, § 65.}
until the true filing-date was pointed out to counsct {2) Dismissal and Nonsuit § 32--Involuntary Dis-
by the trial court, at which time defendants missal--Delay in Bringing Action to Trial (Code
promptly moved for dismissal. The trial, which was Civ. Proc., § 583)-Five-year Limitation--Excuses,
originally set for a date within the five-year period, Exclusions, and Extensions—Availability of Judge.
was continued pursuant to a writien stipulation of The period a trial is held in abeyance pending
the parties, was then placed on “beeper” call due to assignment of another judge pursuant to Code Civ.
the court's congested trial calendar, and was contin- Proc., § 170.6, is to be disregarded in considering a
ued when the first trial judge assigned to the case subsequent motion to dismiss under Code Civ.
was disqualified by defendants and the second trial Proc., § 583, subd. (b), for failure to bring the case
Judge assigned to the case was disqualified by to trial within five years.
plaintiff. Finally, the case was continued past the
Jast date of the statutory period by defendants! (3) Dismissal and Nonsuit § 32--Involuntary Dis-
counsel, who did not want to be on “beeper” call missal—Delay in Bringing Action to Trial (Code
during the Christmas/New Year's holiday, which re- Civ. Proc., § 583)—Five-year Limitation--Excuses,
quest was not consented to by plaintiffs counsel Exchisions, and Extensions--Estoppel Due to
until defendants’ counsel stated he would appear in Movant's Delay.
court the next morning to request the court to place Defendant was estopped fom moving to dis-
the case off beeper call during the holiday season miss an action for fraud pursuant to Code Civ.
over plaintiff's objection. (Superior Court of Los Proc., § 583, subd. (6), which provides for the dis-
Angeles County, Nos. D-041451 and C175717, missal of actions not brought to tial within five
‘William P. Hogoboom, Judge.) years from the date filed, where the reason the casc
did not go to trial within the statutory period, as ex-
The Court of Appeal reversed. The court held tended by delay caused by court congestion and
that the action was erroneously dismissed, since tri- disqualification of judges, was that defendants did

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141 Cal App.3d 89, 190 Cal Rpt. 112
(Cite as: 141 Cal-App.3d 89)

not want to be on “beeper call” during the Christ- We conclude the action was erroneously dis-
mas/New Year's holidays, and the delay was sought missed. Trial was originally set for a date within the
‘by defense counsel, who informed plaintiff's coun- five-year period, and all the subsequent delays in
sel he would request the delay from the court over bringing the matter to trial fell within well-
plaintiff's objection if necessary. established tolling periods or exceptions to the stat-
ute.
COUNSEL
Trial was originally set for September 21,
Bemard B. Cohen, Hufstedler, Miller, Carlson & 1981, which was prior to expiration of the five-year
Beardsley, Burton J. Gindler, Peter O. Isracl and pericd. Trial was then continued to October 26,
Robert S. Thompson for Plaintiff and Appellant. 1981, by the written stipulation of the parties. Sec-
tion 583, subdivision (b), expressly provides that
Donald N. Woldman and Gary Fishbein for De- the time may be extended by the written stipulation
fendants and Respondents. of the parties. (4 Witkin, Cal. Procedure (2d ed.
1971) Proceedings Without Trial, § 95, pp.
2756-2757.)
ASHBY, J.
In this action for fraud plaintiff Florence On October 26 the partics were placed on
Breacher appeals from an order dismissing her “beeper” call due to the court's congested trial cal-
complaint pursuant to Code of Civil Procedure sec- endar, (1)Where a plaintiff has obtained a irial date
tion 583, subdivision (b), for failure to bring the ac- and is prevented from going to trial because no
tion to trial within five years after the filing of the courtroom is open, the delay for court congestion is
complaint. *91 not counted in calculating the five-year period. (
Goers v. Superior Court (1976) 57 Cal.App.3d 72,
The complaint was filed on October 1, 1976. 74-75 [ 129 Cal.Rptr. 29]; Bennett v. Bennett Ce-
However, both plaintiffs counsel and defendants! ment Contractors, Inc. (1981) 125 Cal.App.3d 673,
counsel mistakenly believed that the complaint had 677-678 [ 178 Cal.Rptr. 633]; see Hartman v. San-
not been filed until November 10, 1977, tamarina (1982) 30 Cal.3d 762, 766 [ 180 Cal.Rptr.
Neither ‘counsel discovered the mistake until 337, 639 P.2d 979}.)
December 22, 1981, when the true filing date was
pointed out to counsel by the court. Defendants On November 10, 1981, the cause was assigned
then promptly moved for dismissal under section lo a trial judge, but defendants disqualified the
583, subdivision (b). The trial court thereafter dis- judge under Code of Civil Procedure section 170.6.
missed the action and this appeal followed. On November 13 it was assigned to another judge,
who was disqualified by plaintiff under the same
FN1 Plaintiffs counsci looked at the sum- seclion. The cause was not assigned to a third judge
mons attached to his office copy of the until December 18, 1981. (2)The period a trial is
complaint, which showed that summons is- held in abeyance pending assignment of another
sued on November 10, 1977. He assumed judge pursuant to section 170.6 is to be disregarded
that the summons had been issued on the in considering a subsequent motion to dismiss un-
same date the complaint was filed. In the der section 583, subdivision (b). ( Nail v. Oster-
fall of 1980, an associate in the office of hoim (1970) 13 Cal.App.3d 682, 686 [ 91 Cal.Rptr.
defendants’ counsel telephoned the civil re- 908}; Hartman v. Santamarina , supra, 30 Cal.3d
gistrar’s office, asked for the filing date in at p. 768,) *92
the action, and was also given the date of
November 10, 1977. The reasons why this case did not go to trial on

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141 Cal App.3d 89, 190 Cal. Rptr. 112
{Cite as: 141 CaLApp.3d 89)

December 18 are set forth in the uncontradicted af- (1981) 121 Cal.App.3d 321, 325-327 [ 175
fidavit of plaintiff's counsel in opposition to the Cal.Rptr. 313].) In Holder v. Sheet Metal Worker's
motion to dismiss. On December 10 defendants’ Internat. Assn, supra., F® the defendant's trial
counsel had phoned plaintiff's counsel and stated counsel, prior to the expiration of the statutory peri-
that defendants wanted to go off beeper call during od, told the plaintiffs’ counsel that he would request
the ChristnayNew Year holiday period. Plaintiff's a continuance from the court. Plaintiffs’ counsel did
counsel told him. that plaintiff would not consent. not object to the motion, which was granted to a
On December 14 defendants’ counsel phoned date beyond the statutory period. However, defense
plaintiff's counsel and stated he would appear in de- counsel thereafter successfully moved for a dis-
partment one the next moring to request the court missal. The appellate: court reversed, stating that the
to place the case off beeper call during the holiday defendant had selected a trial date beyond the stat-
season over plaintiffs objection. Later that day utory period, which indicated defendant's willing-
plaintiff's counsel discussed the matter with his cli- ness to excuse delay and his apparent satisfaction
ent, whe then authorized counsel to agree to go off with his state of preparedness for trial. “Here,
beeper call during the holiday period until January [defense counsel] represented to opposing counsc]
4, 1982. On December 15 both counsel appeared in he wished to continue the case for trial. In his mo-
department one at which time the court took the tion for continuance he made that same *93 repres-
case off beeper call until January 4. On December entation to the court. Having made that bargain, he
18 counsel were informed that the case had been as- is bound by it. To permit him to do otherwise is un-
signed to the third judge for trial commencing after seemly.” ( Holder v. Sheet Metal Worker's Internat.
Jamiary 4. The judge requested counsel to meet Assn., supra., 121 Cal.App.3d at p. 327.)
with him on December 22 to discuss a date for
commencement of trial. During the December 22 FN2 Holder arose under Code of Civil Pro-
conference the judge pointed out, and counsel cedure section 583, subdivision (c), an
leamed for the first time, that the complaint had analogous provision requiring that a case
been filed on October 1, 1976. Defense counsel im- be brought to trial within three years from
mediately informed the court he would move to dis- the filing of the remittitur after reversal on
miss under section 583, subdivision (b). appeal.

(3)Thus, the reason this case did not go to trial The instant case is practically on all fours with
within the statutory period as extended by the Holder, but even more compellingly requires re-
above exceptions was that defendants did not want versal. Here, at the time of defendants’ request for
fo be on beeper call during the Christmas/New dclay, the parties were on beeper call, ready to go
‘Year's holidays. The delay was sought by defense to trial, awaiting only the availability of a
counsel, who informed plaintiff's counsel he would courtroom and a third judge. The-holiday delay was
request the delay from the court over plaintiff's ob- at the initiative and insistence of defendants. As in
jection if necessary. Under these circumstances, de- Holder, it would be most unseemly to hold that
fendants should be estopped to seek dismissal under after requesting and obtaining such a delay defend-
section $83, subdivision (b). (See Woley v. Turkus ants may, a few days later upon leaming the tue
(1958) 51 Cal.2d 402, 407-409 [ 334 P.2d 12}; filing date of the complaint, repudiate their own
Tresway Aero, Inc. v. Superior Court. (1971) 5 conduct and instead take advantage of it to secure a
Cal.3d 431, 438 [ 96 Cal. Rptr. 571, 487 P.2d 1211); windfall dismissal on the eve of trial. FX
Borglund v. Bombardier, Ltd. (1981) 121
CalApp.3d 276, 279-280 [ 175 CalRptr. 150]; FN3 Neither party was aware of the five-
Holder v, Sheet Metal Worker's Internat. Assn. year problem when the holiday delay was
requested. It is of course plaintiff's duty,

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Page 5 of 5
Page 4
143 Cal. App.3d 89, 190 Cal Rptr. 112
(Cite as: 141 Cal.App.3d 89)

not defendants’, to be aware of the pertin- of this opinion.
ent date and to sce that the case is brought
to trial within five years. But this is not a Feinerman, P. J., and Hastings, J., concurred.
case of a defendant's mere participation in A ition for a rehearing was denied April 19,
a pretrial conference, which has been held 1983, and respondents' petition for a hearing by the
not to estop a defendant's reliance upon Supreme Court was denied May 18, 1983. #94
Section 583, subdivision (b). ( Lane v.
Davis (1964) 227 Cal.App. 60, 63 [ 38
Cal.Rptr. 425]; Wright v. Groom Trucking Cal.App.2.Dist.
Co. (1962) 206 Cal_App.2d 485, 493 [ 24 Breacher v. Breacher
Cal.Rptr. 80}; Singelyn v. Superior Court 141 Cal. App.3d 89, 190 Cal Rptr. 112
(1976) 62 Cal.App.3d 972, 974 [ 133
CalRpir. 486); Taylor v.
Schultz, 8 END OF DOCUMENT
CalApp.3d 192, 196.) Here the parties
were on beeper call ready for trial, and the
delay was requested by defendants. It ap-
pears that in Holder also, both counsel
were ignorant of the statutory deadline. Al-
though the defendant's conduct was not
fraudulent, the court still held the defend-
ant could not take advantage of its own de-
liberate request for delay. (See Holder y.
Sheet Metal Worker's Internat. Assn.,
supra., 12) Cal.App.3d at pp. 323, 324.)
We therefore conclude the order of dismissal
should be reversed and the cause placed back im the
status it occupied before defendants requested the
delay, that is, on beeper call pending the availabil-
ity of a court for trial. (See Diverco Constructors,
Inc. v. Wilstein (1970) 4 Cal.App.3d 6, 14 [ 85
Cal.Rptr. 851].) ™ Although there are no more
days remaining in the statutory period, the statute
will continue to be tolled while the case is on beep-
er call duc to the congestion of the court's calendar.
( Goers v. Superior Court , supra., 5T Cal.App.3d
at p. 75.) The parties and the court can use the time
between the filing of this opinion and the filing of
the remittitur to prepare for trial.

FN4 The trial judge who ordered ihe dis-
tissal has since retired.

‘The order of dismissal is reversed with direc-
tions to the trial court to restore the cause tobeeper
ca

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LARRY WEIMAN Track Judge’s New Case

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Document Filed Date

December 31, 2012

Case Filing Date

October 13, 2011

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Parties

BREITBEIL, KENNETH R. Attorney for the Defendant
ED MATTINGLY & ASSOCIATES PLLC (A PROFESSIONAL LIMITED LIABILITY Registered Agent
ED MATTINGLY & ASSOCIATES PLLC (A PROFESSIONAL LIMITED LIABILITY Third Party Defendant
GULF COAST ASPHALT COMPANY L L C Plaintiff
HARRELL, DAVID E. Attorney
HUDGINS, DONALD M. Attorney for the Plaintiff
JOHN M O'QUINN AND ASSOCIATES L L P (N/K/A JOHN M O'QUINN AND Third Party Plaintiff
JOHN M O'QUINN & ASSOCIATES L L P Defendant
JOHN M O'QUINN & ASSOCIATES L L P Third Party Plaintiff
JOHN M O'QUINN & ASSOCIATES L L P (LIMITED LIABILITY PARTNERSHIP) BY Registered Agent
JOHN M O'QUINN & ASSOCIATES P L L C Defendant
JOHN M O'QUINN & ASSOCIATES P L L C BY SERVING ITS PRESIDENT T GERALD Registered Agent
LEVIN, ALAN F. Mediator
LINK, SCOTT R Attorney
LINK, SCOTT R Attorney for the Defendant
LLOYD, RUSSELL T Defendant
LLOYD, RUSSELL T Third Party Plaintiff
MATTINGLY, EDWARD A Third Party Defendant
MCFALL, DONALD B. Attorney
PHELAN, SHAWN W. Attorneys for Defendants
TRIFINERY INC Plaintiff
TUDZIN, ELLIS A Third Party Defendant
Sarah Menendez Attorney
David Louie Attorney
Spencer Edwards Attorney
Michael Hudgins Attorneys for Plaintiffs
Steven Hudgins Attorneys for Plaintiffs
Norma Bennett Attorney
William Moye Attorneys for Defendants
David Gunn Attorney
Constance Pfeiffer Attorney
Gretchen Sween Attorneys for Plaintiffs
David Louis Attorney

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Motion,Ex Parte: GULF COAST ASPHALT COMPANY L L C vs. LLOYD, RUSSELL T

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