Opinion
D069421
01-13-2017
JEREMY ARTHUR et al., Plaintiffs and Appellants, v. CENTEX HOMES, Defendant and Respondent.
Milstein Adelman Jackson Fairchild & Wade, Lee Jackson and Mayo L. Makarczyk for Plaintiffs and Appellants. Newmeyer & Dillion, Clayton T. Tanaka and Jon N. Owens, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2010-00087615-CU-CD-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Milstein Adelman Jackson Fairchild & Wade, Lee Jackson and Mayo L. Makarczyk for Plaintiffs and Appellants. Newmeyer & Dillion, Clayton T. Tanaka and Jon N. Owens, for Defendant and Respondent.
Plaintiffs and Appellants Jeremy Arthur et al., a group of 36 homeowners (together the Arthur group), appeal a judgment dismissing their construction defect action for lack of prosecution. (Code Civ. Proc., § 583.410, et seq.) The moving party, defendant and respondent Centex Homes (Centex), sought both mandatory and discretionary dismissal based on the Arthur group's delay in prosecuting the action. (§§ 583.310, 583.410, 583.420, subd. (a)(2)(A).) In reaching its decision on the motion to dismiss, the superior court was required to interpret certain stay orders that were in effect in the case from 2011 through 2013.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
On appeal, the Arthur group contends the court abused its discretion by granting Centex's motion for discretionary dismissal, because Centex should be deemed to have waived its right to object to the delay or should be estopped from doing so. We conclude that the Arthur group's arguments lack merit and affirm the judgment of dismissal. (§§ 581, subd. (g), 581d.)
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint; Two Groups of Homeowners; Stay of Proceedings
On March 11, 2010, the owners of 47 homes located in San Diego (together Plaintiffs) filed a complaint alleging construction defect causes of action against Centex, a development company. In July 2010, the court issued an order to show cause on Plaintiffs' failure to file a certificate of service. In January 2011, Plaintiffs filed their first amended complaint, naming 34 additional homeowner plaintiffs. In July 2011, Centex answered the complaint and filed a cross-complaint against numerous subcontractors involved in the construction of the Plaintiffs' 81 homes.
One such subcontractor and cross-defendant, Masco Contractor Services of California, Inc., filed a joinder to Centex's motion to dismiss. However, the order granted the motion to dismiss as to Centex specifically. Masco has not filed any briefs on appeal and we need not reach any issues about Masco.
It is significant that 17 of the Plaintiffs' homes were sold after January 1, 2003, and as such, they became subject to the prelitigation procedures of Civil Code section 895 et seq., the Right to Repair Act. In September 2011, Centex filed a motion to stay all proceedings for those 17 homes, whose owners we shall designate the Repair Plaintiffs. Plaintiffs filed an untimely opposition to Centex's stay motion. The Arthur group claimed it would be inappropriate for the court to stay all the proceedings, since only 17 of the 81 homes in the action were properly subject to the prelitigation procedures.
Civil Code section 895 et seq., enacted in 2002, is commonly referred to as the Right to Repair Act or "SB800." Its remedies apply to homes sold on or after January 1, 2003. (Civ. Code, § 938.) For example, Civil Code section 910 provides: "Prior to filing an action against any party alleged to have contributed to a violation of the [construction] standards set forth . . . (commencing with [Civil Code] section 896), the claimant shall initiate . . . prelitigation procedures." The prelitigation procedures include: (a) providing written notice of any construction violations set forth in Civil Code section 896, et seq.; and (b) allowing the homeowner to seek redress through any contractual, warranty, or other builder-generated document. (Civ. Code, § 910, subds. (a), (b).) "If the claimant does not conform with the requirements of this chapter, the builder may bring a motion to stay any subsequent court action or other proceedings until the requirements of [the Right to Repair Act] have been satisfied." (Civ. Code, § 930, subd. (b).)
Eventually, the October 2011 hearing on Centex's motion was taken off calendar when the parties stipulated that the proceedings would be stayed, pending compliance by the Repair Plaintiffs with the Right to Repair Act's prelitigation procedures. With respect to the remaining houses in the lawsuit, including the 36 homes owned by the Arthur group, the stipulation stated the parties would proceed with litigation unless investigation discovered these homes were also subject to the Right to Repair Act's prelitigation procedures. Due to their failure to abide by the prelitigation procedures, Plaintiffs' attorneys were to reimburse Centex for its fees and costs associated with the motion, in the amount of $2,402.50.
The clerk's transcript contains only nonconformed copies of the October 2011 stipulation and order to impose a stay on all proceedings, which was stated to apply "pending Repair Plaintiffs' compliance with Civil Code Section 895 et seq." In the ruling on the motion to dismiss, the superior court acknowledged this stipulation had been formalized into an order. At Centex's request, the superior court clerk supplied the attorney's declaration concerning the 2011 motion to stay.
B. Case Management Order and Settlement Talks
After approximately two years, the parties stipulated in September 2013 to lift the stay that had been imposed "pending Repair Plaintiffs' compliance with Civil Code Section 895 et seq." Centex submitted a proposed case management order (CMO) to the trial court on September 13, 2013, and the court directed counsel to meet, confer and appear, ex parte, regarding the CMO.
After a status conference, the court and counsel signed the CMO on December 6, 2013, which stipulated to "Trial Call: February 2015, date to be determined by the court." In the December 6, 2013 minute order, the court noted a revised timeline was necessary and required that the first mediation take place by May 31, 2014. Mediator Al Clarke was appointed. Following the submission of that CMO, the parties appeared for two more case management conferences on June 6, 2014 and October 10, 2014. The minute orders for those dates noted that a revised timeline in the CMO was necessary, but none was submitted to the court.
During 2014, the parties participated in settlement negotiations, with the mediator's informal assistance. Additionally, Centex inspected at least 14 of the Arthur group's 36 homes, although the subcontractors did not complete inspections.
In its case management statement submitted to the court for the continued status conference set for February 13, 2015, Centex stated it "contacted Plaintiffs' counsel multiple times to schedule mediation, but has not received a response to date." On February 13, 2015, Plaintiffs' counsel e-mailed proposed dates for an updated CMO to be submitted to the mediator and to be held for objections, and later, submitted to the court. For the first time, Plaintiffs, including the Arthur group, proposed a trial date of June 2016. Centex's counsel responded that he was not yet ready to agree to all the dates. The Arthur group agreed to provide discovery responses by May 18, 2015.
At the February 13, 2015 status conference, no revised CMO was signed and submitted to the court. Counsel's e-mails continued, and Centex's counsel responded that he was "okay with distributing the amended timeline to the [subcontractors]," when the additional changes on discovery responses were made to the timeline. The status conference was continued to May 15, 2015 and July 17, 2015.
C. Centex's Motion to Dismiss and Hearing
On July 17, 2015, five years and four months after the commencement of the action, Centex filed its motion to dismiss the action as to the Arthur group, for its failure to prosecute. Centex alleged the Arthur group had failed to bring the action to trial within the five-year period required by section 583.310 and, alternatively, argued that dismissal was warranted under the court's discretionary power pursuant to section 583.410.
Section 583.310 provides: "An action shall be brought to trial within five years after the action is commenced against the defendant."
The Arthur group filed opposition to Centex's motion to dismiss, arguing the mandatory statute did not apply because the stipulation for a stay had covered all Plaintiffs. Counsel for the Arthur group argued that her usual office policy was to interpret such stays as applying to an entire action, to be cost effective. The Arthur group did not specifically address the alternative request for discretionary relief under section 583.410.
In its reply papers, Centex argued it did not waive its right to bring a motion to dismiss, no misleading conduct took place on its part, and the case should be dismissed, either under the mandatory or discretionary provisions. It contended that its agreement to a trial date in June 2016 only applied to the homes of the Repair Plaintiffs, that were subject to the stay. A trial date was also needed for the cross-complaint issues, which did not properly involve the Arthur group.
At the September 11, 2015 hearing on Centex's motion, the Arthur group argued the moving papers submitted by Centex were incomplete in several respects. Although Centex's attorney, in a declaration supporting the motion, had stated the Arthur group never produced their homes for visual inspection, it was agreed by counsel during argument that at least 14 of those houses had been inspected. Additionally, Centex did not disclose that settlement negotiations had taken place during 2014, or that a partial tentative settlement had been reached as to 28 of the 36 homes, although it was later withdrawn. Centex had not disclosed to the court that the proposed CMO timeline, to which it had generally agreed, extended the suggested trial deadline until June 2016.
At the hearing, the trial court noted that the Arthur group's opposition papers had likewise failed to raise any issues about the earlier settlement negotiations or inspections of homes. The court evaluated the motion based on the historical facts in the record and stated it was not required to consider the purported evidence newly brought up at the hearing. The matter was taken under submission. On September 18, 2015 the court sent a letter to both parties indicating it had reached a decision but urging the parties to settle their case prior to October 2, 2015, when the order would otherwise issue.
On October 5, 2015, the court filed its lengthy written order granting Centex's motion for discretionary dismissal pursuant to section 583.410, but denying the motion to dismiss under the mandatory provisions of section 583.310. The trial court found the e-mail communications between Centex and the Arthur group had effectively extended the five-year statute (§ 583.310) until June 2016. However, after weighing the factors identified in California Rules of Court, rule 3.1342, the court concluded there had been an inexcusable delay in the Arthur group's prosecution of the case, and this warranted a discretionary dismissal. In its order, the trial court noted the dismissal of the Arthur group's action was without prejudice, other than if any expired limitations period applied.
All further rule references are to the California Rules of Court unless otherwise noted. In the discussion portion of this opinion, the court's reasoning and application of these factors is discussed in detail.
For the remaining parties and portions of the action, including the cross-complaint, the court continued the status conference and set a firm trial date of July 1, 2016. It is unclear from the record how many active plaintiff-homeowners are still participating in the action.
D. Motion to Reconsider
The Arthur group filed an ex parte motion for reconsideration on October 19, 2015, and it was set for a hearing on November 20, 2015. (§ 1008.) During the hearing, the court expressed its view that under section 581d, a motion for reconsideration does not lie after a dismissal that operates as a judgment. The court suggested it could treat the motion for reconsideration as a motion for new trial, however, it was not inclined to do so without the introduction of a new legal argument or fact. The court rejected the Arthur group's arguments on the merits, and denied the motion to reconsider.
The court noted its order granting Centex's motion to dismiss had expressly entered the order of dismissal, which may have caused the court to lose jurisdiction to rule on a motion for reconsideration. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 9.332.2, p. 9(1)-144 ["An order of dismissal is a judgment [see § 581d]; and therefore, a motion for reconsideration does not lie after a dismissal."].) We need not decide that point, as we conclude on other grounds that reconsideration was properly denied.
The Arthur group timely appealed the orders.
Although Centex claims the Arthur group forfeited some of its arguments on discretionary dismissal by not raising them below, all the relevant legal issues were adequately discussed at the motion stage and during reconsideration. --------
DISCUSSION
On appeal, the Arthur group contends the court abused its discretion by dismissing the action for failure to prosecute and by denying its motion for reconsideration. The Arthur group specifically argues Centex waived its right to bring a motion to dismiss, by agreeing to extend the proposed trial date past the five-year statutory limitation period. Although the court found the parties' agreement to extend the trial date to "June 2016" had effectively extended the five-year mandatory statute, and denied Centex's motion to that extent, it nevertheless granted the motion to dismiss under the discretionary provision, section 583.410.
We accordingly address whether the court abused its discretion by disagreeing with the Arthur group that Centex had waived its remedies or should be estopped from bringing its motion to dismiss, based on its actions that had possibly lulled the Arthur group into a false sense of security. The Arthur group further argues the order dismissing the action amounts to a miscarriage of justice, because the Centex moving papers had failed to provide the court with relevant information regarding informal settlement discussions and tentative partial agreements to settle.
After reviewing the record, we find no lack of evidence in support of this discretionary ruling. We reject the Arthur group's contentions on dismissal, and need not separately discuss the denial of reconsideration. The rulings are supported by the facts and the applicable law.
I
RULES REGARDING DISMISSALS FOR DELAY IN PROSECUTION OF ACTION
Section 583.410 affords the court discretion to dismiss an action for delay in prosecution, if the circumstances of the case make that appropriate. The applicable time period of delay, as relied on in Centex's motion, was three years after the action was commenced. (§ 583.420, subd. (a)(2)(A).) The shorter two-year period referenced in section 583.420, subdivision (a)(2)(B) was not implicated here. (See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 451, pp. 904-905 [§ 583.420, subd. (a)(2)(A) specifies a general three-year period to bring an action to trial, unless rule 3.1340 provides for an accelerated time frame; not applicable here].)
In ruling on the motion, the court was required to exercise its discretion in light of the pertinent factors concerning delay, as specified in rule 3.1342(e). (Wagner v. Rios (1992) 4 Cal.App.4th 608, 611-612; § 583.420, subd. b.) "[W]here there has been a protracted and unexplained delay in prosecution, the defendant need not make an affirmative showing of prejudice . . . . [I]t] is inferred from the delay itself." (Wagner, supra, at p. 612; see Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443-444 ["[T]he fact that defendant made no showing of prejudice is not determinative: when a plaintiff fails to make a showing of excusable delay, the trial court remains within its discretion in dismissing the case despite the lack of actual prejudice."].)
In reviewing a discretionary dismissal, we presume the trial court's order was correct, and the appellants have the burden to overcome that presumption and establish an abuse of discretion. (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at p. 443.) By analogy to questions of impracticability in bringing a case to trial, an evaluation of excuse for delay is best resolved by the trial court, " 'which is in "the most advantageous position to evaluate these diverse factual matters in the first instance." ' " (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 (Gaines); see Marks v. Spencer (2008) 166 Cal.App.4th 219, 228, fn. 4 [additional authorities may be relied on by reviewing court, as long as the substantive issue on appeal is not changed].)
An abuse of discretion occurs when the trial court's decision exceeds the bounds of reason. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698.) "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 law to the facts is reversible only if arbitrary and capricious.' " (Gaines, supra, 62 Cal.4th at p. 1100.) Unless a clear case of abuse is shown and there has been a miscarriage of justice, we will not substitute our judgment for that of the lower court. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
II
NO ABUSE OF DISCRETION IN DISMISSAL DEMONSTRATED ON THIS RECORD
In its written order, the trial court carefully considered numerous facts and circumstances in finding that the Arthur group had inexcusably delayed prosecution of its action. The court made a finding that the contention by counsel for the Arthur group, that she had reasonably relied on the stay of the Right to Repair Act homes as covering all of the plaintiffs, was disingenuous and unsupported by the evidence. We examine the record for support for the court's conclusions, under the guidelines applicable to section 583.410 as set forth in rule 3.1342.
A. The Court's File and Extensions of Time
When deciding whether to grant discretionary relief on a motion to dismiss, a trial court may consider the court's file, including the declarations and supporting data submitted by the parties, and the nature of any extensions of time or delay attributable to either party. (Rule 3.1342(e)(1), (7).) The court stated it had independently reviewed the court file, including the record of the stay of proceedings as to the Repair Plaintiffs, prior to entering its order granting dismissal.
Centex filed its motion in October 2011 to stay the action, to require the Repair Plaintiffs to comply with prelitigation proceedings. As shown in the Arthur group's untimely opposition to Centex's motion, it claimed it would be inappropriate for the court to stay all proceedings, since only 17 of the 81 homes in the action were properly subject to the prelitigation procedures. The motion was taken off calendar after the parties stipulated to a partial stay of the action. In 2013, they stipulated to lift the stay. By February 2015, they had agreed by e-mail on a proposed CMO to extend the trial date until June 2016, subject to the mediator's participation. However, the record does not show that stipulation was ever signed or submitted to the court.
Counsel for the Arthur group continues to contend that she reasonably believed the stay of the Repair Plaintiffs' homes applied to the entire action, which should excuse all the delay in prosecution during the period of the stay and thereafter. In its order, the trial court analyzed the language of the October 2011 tentative ruling on the motion for stay, which applied the stay only to the Repair Plaintiffs. The trial court noted that the stipulated stay order had expressly stated: "[T]he action is stayed as to the Repair Plaintiffs, the owners of [17] homes identified on Exhibit A. . . . The action will proceed as to the other homes not listed [the Arthur group, etc.]." At the time, Centex's counsel sent an e-mail to the Arthur group's law firm to notify it the court had granted the stipulated order, and "thus, the case is now stayed as to the 17 SB 800 homes."
Based on that paper trail, the trial court concluded that it was disingenuous for the Arthur group's counsel to claim a belief that the stipulation to stay the action pertained to the entire action. It was not enough for counsel to argue that the stipulation was negotiated and signed by another attorney in her law firm, since they were each members of it and bound by one another's actions.
"The circumstances of a partial stay can vary . . . [and] the court must look to the ' "impossible, impracticable, or futile standard" ' . . . to assess the effect of a partial stay of the proceedings." (Gaines, supra, 62 Cal.4th at p. 1094.) "It is well established that, ' " ' "[e]very period of time during which the plaintiff does not have it within his power to bring the case to trial is not to be excluded in making the computation." ' " ' " (Id. at p. 1101.) However, "[t]his rule reflects the Legislature's understanding that a reasonably diligent plaintiff should be able to bring the case to trial within the relatively lengthy period . . . [and] to hold otherwise would allow plaintiffs to litigate piecemeal every period, no matter how short, in which it was literally impracticable to try the case, thus rendering the statute 'utterly indeterminate, subjective, and unadministerable.' " (Ibid., citing Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 472.) The burden is on the plaintiff to move the case forward at all times. (Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 1567 ["Because a defendant's presence in the case is involuntary and he is put to a defense only, no more can be expected of him than to meet the plaintiff step by step."].)
The record supports the trial court's finding that the stay of the action between October 2011 and September 2013 did not excuse the Arthur group's lack of diligence regarding its 36 houses. The parties' communications regarding the stay objectively set forth their expectations and do not indicate any understanding the five-year statute would be tolled as a global matter. (Gaines, supra, 62 Cal.4th 1081, 1098.) The court did not abuse its discretion when it determined the court file showing those earlier phases of the delay weighed in favor of dismissing the action. (Rule 3.1342(e)(1), (7).)
B. Discovery and Pretrial Proceedings
Under rule 3.1342(e)(4), a trial court should consider the diligence of the parties in pursuing discovery or other pretrial proceedings, before exercising discretion in ruling on a dismissal motion. The trial court found no evidence that depositions or formal discovery were conducted. Although five status conferences were held over the course of 21 months, a revised CMO timeline was never signed and submitted to the court. The Arthur group contends that when Centex agreed in February 2015 to the deadlines contained in the proposed CMO, including a proposed trial date of June 2016, it waived its right to file a motion to dismiss seeking discretionary relief from the court under section 583.410.
"To support a finding of waiver, there must be an existing right, benefit, or advantage, actual or constructive knowledge of the right's existence, and either an actual intention to relinquish it or conduct so inconsistent with any intent to enforce the right as to induce a reasonable belief that it has been relinquished." (Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 513.) The party claiming the waiver of a legal right bears the burden of establishing an intention to give up such a right. (Ibid.) "On appeal, the substantial evidence rule must be applied, and we must consider the evidence in the light most favorable to the prevailing party." (Id. at p. 514.) In the absence of abuse of discretion, the trial court's determinations will be upheld on appeal. (Id. at p. 513.)
In Marra v. Mission Foods Corp. (1993) 19 Cal.App.4th 724, the court noted that a stipulation that is "nothing more than a commonplace extension of time" does not excuse the plaintiff from his duty to move the case forward at all times. (Id. at p. 729.) In Marra, the plaintiff filed a complaint with several deficiencies and granted the defendant an open extension to respond to the complaint, but did not amend the complaint. (Id. at p. 726.) The court granted defendant's motion to dismiss under section 583.410, holding that when "the open extension of time to plead is in reality for the benefit of the plaintiff, the defendant is not necessarily precluded from seeking dismissal of the action for failure to prosecute." (Marra, supra, at p. 728.)
When Centex's counsel reviewed the proposed CMO on February 13, 2015, and stated "I'm okay with distributing the amended timeline," some conditions remained to be fulfilled, including holding the proposal for objections and imposing some specific discovery deadlines. No such revised CMO was formally submitted to the trial court, containing such conditions. Even though there is no language in the correspondence about revising the CMO timelines that expressly reserved Centex's right to bring a motion to dismiss, the Arthur group cites no authority to show such a reservation is required. The proper approach on a diligence evaluation is to view all the circumstances during the progress of the litigation in context and as a whole. (Garza v. Delano Union Elementary School Dist. (1980) 110 Cal.App.3d 303, 312-313 (Garza).)
In its order, the trial court noted that the complaint had been filed more than five years before the motion to dismiss, there was no evidence of court congestion, the court had been required to set an order to show cause for Plaintiffs' failure to file a certificate of service, and Plaintiffs' counsel had earlier agreed to pay $2,402.50, as a consequence of the failure to reach a stipulation on Centex's request that Plaintiffs honor the Right to Repair Act. Visual inspections of the Arthur group's homes were never scheduled by cross-defendant subcontractors, no formal mediation was scheduled, and neither side submitted evidence that any depositions or formal discovery had been conducted.
The court noted that Centex's counsel had sent e-mails to the Arthur group's counsel, seeking to schedule mediation, on December 30, 2013, January 6, 2014, February 12, 2014, May 19, 2014, June 30, 2014, and July 30, 2014. However, the Arthur group's counsel had not responded to any of these requests. It was significant to the trial court that the Arthur group had the burden to carry the case forward. However, the Arthur group could not point to any discovery completed after the 2013 lifting of the stay on the 17 Repair Plaintiffs' houses. (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131.) The record contains no copies of interrogatories, requests for production, requests for admissions, or depositions taken. During the hearing on the motion to dismiss, Centex's counsel represented that it had accomplished inspections of roughly 14 of the Arthur group homes, but the subcontractors had not done so.
The negotiations toward reaching an agreement on revising the CMO were primarily for the benefit of the entire group of plaintiffs. The Arthur group did not clearly communicate to the other parties its beliefs about its own separate interests in how the action was being pursued. Centex was not shown to have taken any actions that should preclude its filing of the motion to dismiss. (Marra v. Mission Foods Corp., supra, 19 Cal.App.4th at p. 728.) On this record, the trial court did not abuse its discretion when it determined the slow pace of the proceedings weighed in favor of dismissing the action as to the Arthur group. (Rule 3.1342(e)(4).)
C. Estoppel Arguments
The Arthur group contends that since December 2013, there was a "mutual understanding" that the CMO needed to be revised, which operated to "dampen" their expectations that Centex would bring a motion to dismiss the action. (Garza, supra, 110 Cal.App.3d 303, 312-313.) They argue the trial court should have recognized that estoppel would apply under these circumstances.
"Equitable estoppel requires that (1) the party to be estopped was aware of the operative facts and either intended that its act or omission be acted upon, or acted in such a way that the party asserting estoppel rightfully believed it was intended; and (2) the party asserting estoppel was unaware of facts and relied on the other party's conduct to its detriment." (Gaines, supra, 62 Cal.4th at p. 1097; Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 994.) "Unless the record affirmatively discloses the existence of a sufficient excuse or the basis for an estoppel, the burden rests upon the [moving party] to prove it." (Busching v. Superior Court of Ventura County (1974) 12 Cal.3d 44, 53.)
In Garza, supra, 110 Cal.App.3d 303 and Imperial Ins. Co. v. California Casualty Indem. Exchange (1984) 158 Cal.App.3d 540 (Imperial Ins. Co.), the appellate courts analyzed requests for discretionary dismissals. These cases are distinguishable, as their holdings hinged on specific stipulations extending deadlines for discovery, but that included a condition to require one party to notify the other before seeking a discretionary dismissal of the case, and that condition was not met. (Garza, supra, at p. 313; Imperial Ins. Co., supra, at p. 548.) In Garza, the parties had agreed to an open extension to answer interrogatories and stipulated that the trial date would be " 'vacated and a new trial be reset by stipulation of the parties herein.' " (Garza, supra, at p. 307.) The court found the extensions "dampen[ed] any sense of urgency in bringing the case to trial," and reversed the dismissal order. (Id. at p. 313.)
Similarly, in Imperial Ins. Co., supra, 158 Cal.App.3d 540, the parties entered into an agreement permitting the current trial date to be "postponed indefinitely" but then reset, upon motion by any party to the action. (Id. at p. 543.) The court found the trial court abused its discretion in dismissing because the stipulation that "a new trial be reset by stipulation of the parties" meant the party moving for failure to prosecute had to notify the other party of its intention to proceed, if the case were not promptly set for trial. (Id. at pp. 548-549.)
Although in this case, the parties agreed after 2013 that the CMO needed revision, such an agreement does not excuse the Arthur group's failure to submit a revised CMO for two years. By the time counsel began circulating a revised CMO in February 2015, all of the original CMO deadlines had expired, including the trial date scheduled for that month. When the Arthur group suggested a trial date of June 2016, subject to the mediator's participation, Centex's attorney responded in part that he was not ready to accept all the proposed dates. Trial was anticipated on the cross-complaint, as well as on the other plaintiffs' portions of the action. The CMO proceedings do not demonstrate Centex was estopped from seeking dismissal of the Arthur group's action.
D. Settlement Negotiations
Rule 3.1342(e)(3) provides that the trial court may consider the extent to which the parties engaged in settlement negotiations. The Arthur group asserts that Centex is estopped from moving to dismiss because it lulled the plaintiffs into a false sense of security by offering to settle the action about several of the disputed houses, but later withdrawing the offer. (Garza, supra, 110 Cal.App.3d at p. 313.) The Arthur group claims that the dismissal amounts to a miscarriage of justice because a tentative settlement was reached concerning most of the homes, but Centex failed to describe it to the trial court, or to disclose that inspections of some of the houses were completed.
The trial court observed in its order that although settlement negotiations had occurred in 2014 and a "tentative settlement agreement" was reached, the agreement fell apart. The court noted that admissible evidence on this topic was totally missing from the moving and opposing papers. If the court were to consider such evidence as orally represented to it, it found it to be significant that any such meaningful settlement discussions had not occurred until four years into the case.
Even assuming the arguments made by counsel during the trial court hearing were true, the Arthur group does not establish how Centex lulled it into a false sense of security. During the hearing, the parties represented that the negotiations began in spring of 2014. The parties agreed that 28 of the 36 homes became subject to a tentative settlement, but one homeowner objected to the tentative settlement, and Centex withdrew its offer in early 2015. The trial court noted that those settlement negotiations began four years into the litigation.
There was no evidence that formal mediation was held as ordered. The Arthur group did not demonstrate to the court that Centex was aware of operative facts involving the dismissal of the action, while the Arthur group remained unaware of those relevant facts and thus relied upon Centex's conduct to its detriment. (Gaines, supra, 62 Cal.4th at p. 1097.) The trial court had an adequate basis to determine that the existence of settlement negotiations did not operate to excuse the Arthur group from its duty to move the case forward to trial.
E. The Interests of Justice and Other Relevant Factors
As a factor affecting the decision on a discretionary dismissal, the trial court may consider the plaintiffs' diligence in seeking to effect service of process. (Rule 3.1342(e)(2).) The trial court also evaluates the nature and complexity of the cases, the law applicable to the case, the condition of the court's calendar and the availability of an earlier trial date, whether the interests of justice are best served by dismissal or trial, and any other facts or circumstances relevant to a fair determination of the issues. (Rule 3.1342(e)(5), (6), (8), (9), (10).)
"Although California has a strong policy in favor of disposing of cases on their merits, this policy prevails only when the plaintiff makes a showing of excusable delay." (Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1562.) This policy favoring the merits is balanced against the Legislature's clear intention of establishing a case management system that disposes of civil cases expeditiously. (See Kidd v. Kopald (1994) 31 Cal.App.4th 132, 150.) "In exercising its discretion, the [superior court] must consider factors such as the length of time between the filing of the complaint and the motion to dismiss, bearing in mind that as the time passes from two years nearer to five, the showing required to excuse a failure to bring a case to trial grows greater and greater." (Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1013.)
The Arthur group is not justified in arguing that the trial court "failed to properly apprehend" that Centex engaged in misleading behavior during the 2015 proceedings on the motion to dismiss. Nor has it shown Centex misled it earlier, throughout the history of the case. To the contrary, the trial court's order granting the motion plainly considered the respective participation of both sides as evidenced by the entire file, going back to 2010. After the stay on the 17 Repair Plaintiffs' homes was lifted in September 2013, Arthur's counsel failed to respond to e-mails from Centex seeking to move the case forward. Between December 2013 and February 2015, three case management conferences were held but no revised CMO was submitted to the court. As discussed above, the Arthur group failed to show excusable delay in that respect, or in their dilatory manner of scheduling of discovery or inspections of the homes. The court expressly found no evidence had been submitted that the delays were attributable to court congestion. The record fully supports the court's exercise of its discretion in granting Centex's motion to dismiss the action of the Arthur group. (§ 583.420, subd. (a)(2)(A); rule 3.1342(e)(9), (10).)
DISPOSITION
The judgment of dismissal is affirmed. Costs awarded to Respondent.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
NARES, J. /s/_________
HALLER, J.