Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIP084539 & RIP086270. John F. Kraetzer, Judge. (Retired judge of the Alameda Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Lewis Brisbois Bisgaard & Smith, Dean H. McVay and Manuel Sarmiento for Plaintiff, Petitioner and Appellant.
Harry J. Histen for Defendant, Objector and Respondent.
OPINION
RICHLI J.
Gladys R. Greer died in 2003, leaving two sons, David and Dennis Greer. In 2004, Dennis filed an adversary proceeding against David, in David’s capacity as the trustee under Gladys’s trust. In 2005, Dennis filed a second adversary proceeding against David, in David’s capacity as the executor under Gladys’s will. The two proceedings were then consolidated. In 2009 — more than five years after the filing of the first adversary proceeding, but less than five years after the filing of the second — the trial court granted David’s motion to dismiss the consolidated proceedings under the five-year dismissal statute. (Code Civ. Proc., § 583.310 et seq.)
Dennis appeals. We will affirm in part and reverse in part.
We will hold that the trial court properly dismissed the first adversary proceeding. Dennis argues that there were several periods during which it was impossible or impracticable to bring the first adversary proceeding to trial, and that these periods must be excluded from the five years. However, he cannot take advantage of the impossibility exception because he did not use reasonable diligence to bring that adversary proceeding to trial even after these periods had ended.
We will also hold that the trial court erred by dismissing the second adversary proceeding. Under the controlling California Supreme Court case, subject to exceptions not applicable here, consolidated actions must be treated as separate for purposes of the five-year dismissal statute.
I
PROCEDURAL BACKGROUND
In July 2003, David, as trustee of Gladys’s trust, commenced In re Trust of Gladys R. Greer, case No. RIP084539, by filing a petition for instructions. In February 2004, Dennis filed an adversary proceeding in that case (Trust Proceeding). In it, he sought, among other things, an accounting.
In March 2004, Dennis commenced an additional adversary proceeding in the same case. Everything we will say in this opinion regarding the original Trust Proceeding applies equally to this additional adversary proceeding. Accordingly, we will not discuss it separately.
In May 2004, David commenced In re Estate of Gladys R. Greer, case No. RIP086270, by filing a petition for probate of Gladys’s will. In November 2004, David was appointed executor. In January 2005, Dennis filed an adversary proceeding in that case (Estate Proceeding).
In August 2005, the trial court consolidated the Trust Proceeding with the Estate Proceeding.
In December 2008, the consolidated case was set for trial on April 13, 2009 — i.e., more than five years after the filing of the Trust Proceeding, but less than five years after the filing of the Estate Proceeding.
On April 2, 2009, David filed a motion to dismiss, based on Dennis’s failure to bring the action to trial within five years. Dennis submitted a written opposition. In it, as well as at the hearing on the motion, he argued that the five-year statute had been tolled from May 16, 2005, when the trial court ordered an accounting, through August 15, 2007, when the accounting was completed. He also argued that the five years had been tolled during a six-month period that David had requested and been granted for the purpose of taking discovery. Finally, he argued that, even if the Trust Proceeding had to be dismissed, the Estate Proceeding did not.
We know this because it was referred to during the argument on the motion. However, it was not actually filed until April 23, 2009.
The trial court dismissed the entire consolidated proceeding. It ruled that the accounting did not toll the statute, because Dennis could still have brought the action to trial once the accounting was done: “[O]bviously some of the delay in the accounting was nobody’s fault, but... it was done in the Fall of 2007. There was... no... attempt to bring this to the attention of the Court to speed the trial within the five years....” It also indicated that it was dismissing the Estate Proceeding, as well as the Trust Proceeding, because the causes of action in the two cases were essentially the same. Thus, it entered judgment dismissing the consolidated proceeding.
In April 2009, it entered an “order” of dismissal. (Capitalization altered.) In August 2009, it entered a “judgment” of dismissal. (Capitalization altered.) We need not decide which of these is the appealable judgment, because the appeal is timely in either event.
II
FACTUAL BACKGROUND
A. The Scope of the Relevant Evidence.
“‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) In this case, the evidentiary record that was before the trial court basically consisted of the declarations and exhibits attached to the moving and opposition papers on the motion to dismiss. (See Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1267, fn. 2.)
David did not file any reply papers. While the motion was pending, however, he did file an ex parte application to continue the trial; it included a new declaration by his counsel, which in turn included several new exhibits. In a single (and not entirely grammatical) sentence, David’s counsel claimed that he was also replying to Dennis’s opposition. Nevertheless, this declaration was not properly before the trial court in connection with the motion to dismiss. First, given the caption of the document, this single sentence was insufficient to alert the trial court that it was expected to consider it as a reply. Second, it was inappropriate to include new evidence in reply papers. (See Code Civ. Proc., § 1010 [copy of any papers on which motion is based must accompany notice of motion]; see also Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [Fourth Dist., Div. Two] [court has discretion to consider additional evidence in reply papers, provided opposing party has notice and an opportunity to respond].)
In this appeal, David relies on the transcripts of two hearings, on January 26, 2006 and March 14, 2006. We granted his motion to augment the record with these transcripts. This does not mean, however, that they are relevant. They are not, because they were not in evidence before the trial court.
David similarly moved to augment the record with the transcript of a hearing on January 28, 2010. Initially, we reserved ruling on this motion. Now, however, we deny it. This transcript is irrelevant. It was not in evidence when the trial court ruled; indeed, it did not even exist at the time. “It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered. [Citation.]” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.)
We allowed the parties to augment the record with transcripts of hearings on May 16, 2005 and June 11, 2008. These are relevant, but only because Dennis introduced them in evidence below as part of his opposition to the motion to dismiss; they are already in the clerk’s transcript. Thus, the augmentation, although not improper, was unnecessary.
We must confess that, at one point, we entered an augmentation order on our own motion that was similarly unnecessary, as the record had already been augmented with the relevant document. Our only excuse is that numerous successive requests for augmentation can result in a highly confusing record.
During the argument in the trial court, counsel for both sides made various representations of fact. We can consider these, under certain limited conditions. First, to the extent that both counsel made the same representation, this was tantamount to a stipulation. Second, a representation by counsel could be used, as an admission, against his client, although it could not be used against the other side. (See Evid. Code, §§ 1220, 1222.) Third, both attorneys were “officer[s] of the court whose representations of fact, made without objection or rebuttal..., properly could sustain the court’s ruling. [Citations.]” (People v. Medina (1995) 11 Cal.4th 694, 731.) However, because the trial court was not required to accept them (see Evid. Code, § 300 [Evidence Code “applies in every action before... a... superior court”]), such representations cannot be used to overturn its ruling (unless they were stipulations or admissions).
Both sides make assertions of fact that are not cited to the record. This is a violation of California Rules of Court, rule 8.204(a)(1)(C). We may disregard all such assertions (although, in general, we have considered them to the extent that our independent examination of the record has revealed support for them).
Finally — if only out of an excess of caution — we note that even if we were to consider all of the factual matters that, as we have indicated above, are not properly before us, they would not change the outcome.
B. The Facts as Shown by the Record.
On May 16, 2005 (after the Estate Proceeding was filed, but before the two cases were consolidated), the Trust Proceeding was called for trial. Dennis’s counsel was ready to proceed. David’s counsel said, “I’m not sure we’re ready.” He asserted that, in any event, the only issue before the trial court was the starting date from which David should be required to provide an accounting.
The trial court observed, “... I’m probably going to order an accounting.” It suggested: “Let me send you out in the hall, attorneys talk a little bit, and see what you want to do. You might want to agree to an accounting right now.” After conferring off the record, the parties entered into a handwritten stipulation to an accounting, which was entered as an order of the trial court. It provided that the parties would select a “[t]emporary [t]rustee” who would be appointed to perform the accounting. It further provided, “The [t]emporary [t]rustee shall deliver an accounting on or before July 26, 2005.”
The trial court set a new trial date of October 26, 2005. However, it did not actually appoint a temporary trustee until November 2005. Then there was a dispute over the temporary trustee’s powers, which was not resolved until January 2006. The accounting was not actually completed until August 15, 2007. Neither side objected to the accounting. In October 2007, Dennis filed an amended petition based on information disclosed by the accounting.
In June 2008, at a trial status conference, David’s counsel requested “at least” six more months in which to complete discovery. Dennis’s counsel opposed the request, arguing that no additional discovery was needed. David’s counsel, however, asserted that he needed to serve interrogatories and a request for production of documents and to conduct “[p]robably two [depositions] at least.” The trial court granted this request and set another trial setting conference for December 2008. Ultimately, however, David did not conduct any discovery during this period.
In December 2008, at the next trial setting conference, David’s counsel asked for a trial date in October 2009. Dennis’s counsel requested a trial date sometime earlier than that. The trial court set a trial date of April 13, 2009.
III
THE TRUST PROCEEDING
Under the five-year dismissal statute, Code of Civil Procedure section 583.310, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” If it is not, it must be dismissed. (Code Civ. Proc., § 583.360, subd. (a).) These requirements “are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Id., subd. (b).)
The five-year statute applies to a probate adversary proceeding. “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (Code Civ. Proc., § 22.) This includes the typical adversary proceeding in probate. (Estate of Morrison (1932) 125 Cal.App. 504, 507-508 [five-year statute applies to will contest]; see also Vladu v. State of California (1959) 175 Cal.App.2d 50, 52 [“[w]e see no good reason why [the five-year dismissal statute] should not apply to special proceedings if they are adversary in nature and require the trial of issues”].) Moreover, the Probate Code expressly incorporates part 2 of the Code of Civil Procedure (Prob. Code, § 1000), which includes Code of Civil Procedure section 583.310 et seq.
The five-year period, however, does not include any time during which either “[p]rosecution or trial of the action was stayed or enjoined” (Code Civ. Proc., § 583.340, subd. (b)) or “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile” (id., subd. (c)).
“‘In reviewing the lower court’s dismissal of [an] action for failure to prosecute, the burden is on appellant to establish an abuse of discretion. [Citation.] We will not substitute our opinion for that of the trial court unless a clear case of abuse is shown and unless there is a miscarriage of justice. [Citation.]’ [Citation.]” (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447.)
Dennis argues that, under the impossibility exception, the time that it took to complete the accounting must be excluded. The trial court, however, accepted that it was impossible (or impracticable) to bring the case to trial during at least some of this period; nevertheless, it ruled that Dennis could not take advantage of the exception, because he did not act with reasonable diligence after the accounting was complete.
“The [impossibility] exception does not apply where the plaintiff has not exercised reasonable diligence in pursuing the cause of action. [Citation.]” (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 67.) The plaintiff has the burden of proving reasonable diligence. (De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 372 [Fourth Dist., Div. Two] (De Santiago).) Even after a period of impossibility has ended, the plaintiff still must exercise reasonable diligence in attempting to bring the case to trial within the five years. (Id. at pp. 372-377; Tamburina v. Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 336; Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 471-474.)
For example, in De Santiago, supra, 155 Cal.App.4th 365, there was a 318-day period in which it was impracticable to bring the case to trial, due to court congestion. (Id. at pp. 369, 373.) This period ended, however, about six months before the end of the five years. (Id. at pp. 368-370.) The plaintiff (Star) did not file a motion to specially set or do anything else to prevent the trial from being set beyond the five-year mark. (Id. at pp. 369-370.)
We held that the trial court properly dismissed the case because Star did not show that it exercised reasonable diligence during the final six months. (De Santiago, supra, 155 Cal.App.4th at p. 374.) “... Star had a duty to bring to the trial court’s attention the fact that the trial court set the trial for a date after expiration of the five-year period and object.... [¶] Star also had a duty to take whatever other measures were available to attempt to accelerate trial of the case before expiration of the five-year period, including bringing a motion to advance the trial. Even after the court set the case for trial beyond the five-year mark, there was ample time to move to advance the trial date pursuant to California Rules of Court, rule 3.1335.” (Ibid.)
Dennis relies on Kaye v. Mount La Jolla Homeowners Assn. (1988) 204 Cal.App.3d 1476, which stated: “‘[T]he time within which an action must be brought to trial is tolled for the period of the excuse, regardless whether a reasonable time remained at the end of the period of the excuse to bring the action to trial.’ [Citation.]” (Id. at p. 1486, italics added.) In De Santiago, however, we recognized that there were cases like Kaye; we expressly rejected them, however, to the extent that they held “that the trial court must merely subtract the aggregate periods of time attributable to each court-ordered continuance because of courtroom unavailability, without considering whether the plaintiff was reasonably diligent in bringing the case to trial, particularly as the five-year mark approaches. [Citation.] [¶] To conclude otherwise would wreak havoc on application of the five-year limitation period. In effect, every court-ordered continuance due to courtroom unavailability would toll the five-year limitation, even if it was nevertheless possible to bring the case to trial within the five-year limitation period upon exercising reasonable diligence. It is unlikely this was the intent of the Legislature in enacting [Code of Civil Procedure] section 583.340, subdivision (c).” (De Santiago, supra, 155 Cal.App.4th at pp. 376-377.)
Specifically, we cited and discussed Chin v. Meier (1991) 235 Cal.App.3d 1473. Our discussion, however, would apply equally to Kaye and similar cases.
Here, the trial court could properly find that Dennis did not use reasonable diligence once the accounting was complete. At that point, about 18 months remained out of the five years. Dennis argues that it was also impracticable to bring the case to trial between June 2008 and December 2008, because David’s counsel requested and received an additional six months for discovery. Dennis’s counsel, however, did not oppose this request on the ground that the five years were due to run in February 2009. When the trial court asked, “[W]hy don’t we put this on calendar for [another] trial setting conference six months from today, ” Dennis’s counsel still did not object; they did not note that the five years were about to run, nor did they ask for an earlier trial setting conference.
Most egregiously, in December 2008, when the trial court set a trial date in April 2009, Dennis’s counsel still did not note that the five years were about to run. It does not appear that they objected to the April 2009 trial date; certainly they did not file a motion to specially set the case for trial. (See Cal. Rules of Court, rule 3.1335.) “‘“Where a plaintiff possesses the means to bring a matter to trial before the expiration of the five-year period by filing a motion to specially set the matter for trial, plaintiff’s failure to bring such motion will preclude a later claim of impossibility or impracticability.” [Citation.]’ [Citation.]” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1274.)
Indeed, in Dennis’s reply brief, he affirmatively asserts that, at the time of the June 2008 trial setting conference, his trial counsel were “either asleep at the wheel or ignorant about the existence of Code of Civil Procedure section 583.310[.]” (Underscoring omitted.) This is virtually a concession that Dennis did not use reasonable diligence.
Dennis also argues that the order for an accounting was, in effect, a stay for purposes of Code of Civil Procedure section 583.340, subdivision (b). He raises this argument because, unlike Code of Civil Procedure section 583.340, subdivision (c), Code of Civil Procedure section 583.340, subdivision (b) does not require a showing of reasonable diligence. (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1798-1799.)
Dennis relies on Holland v. Dave Altman’s R.V. Center (1990) 222 Cal.App.3d 477, which held that an order that various proceedings in the case be “continued” (id. at p. 481) while an appeal by one of the defendants was pending was, in effect, a stay for purposes of Code of Civil Procedure section 583.340, subdivision (b) (Holland, at pp. 481-483). Here, however, the stipulation and order for the accounting did not specify that any proceedings were stayed. The parties were free to continue to litigate; for example, they could have brought discovery motions (including a motion to reopen discovery, if necessary) or motions for summary judgment. Admittedly, the order had the practical effect of postponing a trial. However, this was a matter of impracticability under Code of Civil Procedure section 583.340, subdivision (c); it was not a stay under Code of Civil Procedure section 583.340, subdivision (b). Otherwise, every continuance in a case would be a “stay.”
Finally, Dennis argues that David should be estopped to rely on the five-year dismissal statute. However, he did not raise the issue of estoppel in the trial court. “‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. [Citation.]’ [Citations.]” (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591.)
Separately and alternatively, we also reject Dennis’s estoppel claim on the merits.
We recognize that “[t]he doctrine of equitable estoppel is applicable to [Code of Civil Procedure] section 583.310 dismissal motions. [Citations.] If a trial court finds statements or conduct by a defendant which lulls the plaintiff into a false sense of security resulting in inaction, and there is reasonable reliance, estoppel must be available to prevent defendant from profiting from his deception. [Citations.]” (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1341.)
Here, however, it does not appear that Dennis relied on anything that David or his counsel said or did. Dennis points to David’s request for an additional six months in which to complete discovery. Dennis, however, opposed that request; the trial court granted it over his objection. In any event, nothing about the request would have lulled Dennis into a false sense of security. To the contrary, it should have alerted him to the need to secure a trial date as soon as possible.
Dennis also notes that, in December 2008, David requested a trial date in October 2009 — i.e., long after February 2009, when the five years were due to run. However, this was not equivalent to a representation that David would not invoke the five-year dismissal statute. In Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416 [Fourth Dist., Div. Two], the five years were due to expire in June 2008. In February 2008, at a trial setting conference, defense counsel announced that he was unavailable until September 2008. (Id. at p. 1419.) We held that this did not give rise to an estoppel: “[P]laintiffs were aware the five-year trial period ran on June 6, 2008, and it was not reasonable to assume defendants were willing to waive the deadline. Defense counsel was obligated to tell the court when he was unavailable for trial. The fact that defense counsel’s notice of unavailability extended beyond the five-year cutoff date did not constitute any misrepresentation or waiver of the five-year period. Any ambiguity or confusion created by defense counsel mentioning his unavailability beyond the cutoff date could have been clarified by plaintiffs’ counsel, who was responsible for insuring the case was tried before the five-year period expired.” (Id. at p. 1423.) Here, similarly, by requesting a trial date after the cutoff, David’s counsel did not represent that David would waive the five-year dismissal statute. In any event, there is no evidence that Dennis or his counsel actually relied on this supposed representation.
We therefore conclude that the trial court did not abuse its discretion by dismissing the Trust Proceeding.
IV
THE ESTATE PROCEEDING
Dennis also argues that the trial court erred by dismissing the Estate Proceeding, because it was less than five years old.
He relies on General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88 (General Motors). There, William and Bernice Maraska filed a complaint for personal injuries. After Bernice died, William (along with Bernice’s son) filed a separate wrongful death action. The two actions were then consolidated. When five years had run from the filing of the first action, but not the second, the defendant moved to dismiss. The trial court denied the motion. (Id. at p. 90.)
The Supreme Court agreed that the action was not subject to dismissal. Most significantly, it held that, for purposes of the five-year dismissal statute, “individual actions brought by plaintiffs should be treated as distinct even though they have been consolidated, and the time for bringing each action to trial should be measured from the time that particular action was filed.” (General Motors, supra, 65 Cal.2d at p. 93.) Thus, at a minimum, the second action should not have been dismissed.
The court further held that the first action also should not have been dismissed, because the consolidation made it impracticable to bring it to trial within the five years. (General Motors, supra, 65 Cal.2d at pp. 94-97.) In this case, Dennis has not argued that the very fact of consolidation made it impracticable to bring the Trust Proceeding to trial within five years. (See part III, ante.)
David argues that General Motors is not controlling when the second consolidated case involves the same causes of action as the first. He relies on two subsequent cases: Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464 (Bright) and Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312 (Brumley).
Bright involved the application of the five-year dismissal statute to a complaint in intervention. There, the individual plaintiffs had filed an action for personal injuries and property damages against various alleged tortfeasors. (Bright, supra, 220 Cal.App.3d at pp. 1466-1467.) After their insurer (Allstate) compensated them for some of their losses (id. at p. 1467, fn. 2), it filed a complaint in intervention, asserting causes of action “identical” to the plaintiffs’ (id. at p. 1467). The plaintiffs then settled with the defendants. (Ibid.) The trial court dismissed Allstate’s complaint in intervention because it was not brought to trial within five years after the filing of the plaintiffs’ original complaint. (Id. at pp. 1467-1468.)
The appellate court affirmed. It recognized that “in the context of cross-complaints, counterclaims and separate lawsuits subsequently consolidated..., the [Supreme C]ourt has held that the time for bringing the claim to trial runs from the filing of such cross-complaint, counterclaim or separate but consolidated lawsuit. The court’s rationale was that each claim stated a separate cause of action which could have been separately brought and tried and they were thus distinct though simultaneous actions with their own independent time frames for the purposes of the mandatory dismissal statute. [Citations.]” (Bright, supra, 220 Cal.App.3d at p. 1468.) It held, however, that a subrogation claim was “distinguishable” from “the separate causes of action involved in a cross-complaint, counterclaim or separate but consolidated lawsuit, ” at least when the subrogee is asserting “essentially the same causes of action” as the subrogor. (Ibid.)
We do not necessarily agree with Bright’s reading of General Motors. Nowhere in General Motors did the court say that its “rationale” was that the consolidated cases stated separate causes of action; it also did not say that its holding would not apply to consolidated cases that did state the same cause of action. Assuming, however, that Bright was correctly decided, it specifically stated that consolidated cases were “distinguishable” and that its holding did not apply to them.
Brumley involved an amended complaint. William Brumley sued various defendants for personal injuries. While the action was pending, he died. His wife and children then filed an amended complaint. In it, they asserted William’s personal injury claims, as his successors in interest; they also asserted their own claims for wrongful death and loss of consortium. The trial court dismissed the case because it was not brought to trial within five years after William’s original complaint. (Brumley, supra, 156 Cal.App.4th at pp. 316-317.)
On appeal, the plaintiffs conceded that William’s original claims were barred, but they argued that their own wrongful death and loss of consortium claims were not. (Brumley, supra, 156 Cal.App.4th at p. 318.) The appellate court held that the “relation-back” rule applied: If the plaintiffs’ claims related back to the original complaint, they must be deemed filed on the date of the original complaint; but if not, they must be deemed filed on the date of the amended complaint. (Id. at pp. 318-323.) Under the relation-back rule, “[a] new cause of action in an amended complaint is held to relate back to the earlier pleaded claims if the later cause of action ‘(1) rest[s] on the same general set of facts, (2) involve[s] the same injury, and (3) refer[s] to the same instrumentality, as the original one.’ [Citation.]” (Id. at p. 323, italics omitted.) The court concluded that the plaintiffs’ wrongful death and loss of consortium claims did not relate back to the original complaint, and hence were not barred. (Id. at pp. 323-326.)
The court relied primarily on Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, which had applied the relation-back rule to the dismissal of an amended complaint under the three-year discretionary dismissal statute (Code Civ. Proc., former § 581a; see now Code Civ. Proc., § 583.210 et seq.). (Brumley, supra, 156 Cal.App.4th at pp. 318-320.)
Here, of course, we are not dealing with an amended complaint, as in Brumley, but with consolidated cases, as in General Motors. General Motors squarely stated that consolidated cases should be treated as distinct. Indeed, in Brumley, the court recognized that, under General Motors, “claims... contained in a separate action... [a]re therefore governed by a different five-year period....” (Brumley, supra, 156 Cal.App.4th at pp. 321-322, fn. 4.) As the court also observed in Brumley, “‘[c]ommencement’ of an action for purposes of [Code of Civil Procedure] section 583.310... is firmly established as the date of filing of the initial complaint. [Citation.]” (Id. at p. 318.) Here, based on the date that Dennis filed the Estate Proceeding, the five years in that case had not run.
We caution that Dennis could not use a second petition as a subterfuge to avoid the operation of the five-year rule. As the court stated in General Motors, “different considerations would be apposite if plaintiffs had intentionally delayed the filing of one of the actions for the purpose of extending the period for bringing the other action to trial. If the cause of action for wrongful death had accrued at the time the personal injury action was filed, there would be no reasonable basis for concluding that it was impracticable to bring both actions to trial within five years of that date. However, a plaintiff should not be penalized for delays beyond his control [citation], and in the present case the wrongful death action did not accrue until more than three years after the personal injury action had been filed. Therefore, the failure to file the two actions simultaneously was unavoidable.” (General Motors, supra, 65 Cal.2d at p. 97.)
Significantly, however, this reasoning applies regardless of whether the causes of action in the second action are “essentially the same” as (Bright) or “relate back” to (Brumley) the causes of action in the first action. Rather, the test is whether the plaintiff could have brought the causes of action in the second action at the same time as the causes of action in the first action. Here, when Dennis filed the Trust Proceeding, David had not yet filed a petition to probate Gladys’s will. Thus, Dennis could not have filed the Estate Proceeding. Once David did file a petition to probate Gladys’s will, it became appropriate for Dennis to protect his interests by also filing the Estate Proceeding. David has never so much as alleged that Dennis intentionally delayed filing the Estate Proceeding.
We therefore conclude that the trial court erred by dismissing the Estate Proceeding.
We express no opinion on the res judicata effect, if any, that the dismissal of the Trust Proceeding will have on the Estate Proceeding, as this issue has not been raised or briefed.
V
MOTION FOR SANCTIONS
David has filed a motion for sanctions, arguing that Dennis’s appeal is frivolous. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) Inasmuch as we are reversing the judgment, at least with respect to the Estate Proceeding, the appeal is not frivolous. Indeed, given the split of authority noted in part III, ante, the appeal was not frivolous even with respect to the Trust Proceeding; a reasonable attorney could have filed such an appeal as the first step in securing a resolution of the split from the Supreme Court.
Accordingly, the motion for sanctions is denied.
VI
DISPOSITION
With respect to the dismissal of the Trust Proceeding, the judgment is affirmed. With respect to the dismissal of the Estate Proceeding, the judgment is reversed. Dennis is awarded costs on appeal against David.
We concur: HOLLENHORST Acting P.J., KING J.