Motion to Dismiss

Cal. Super. - 2nd Dist.July 14, 2015

123 Judge SUPERIOR COURT OF CALIFORNIA, TENTATIVE RULINGS EVENT DATE: EVENT TIME: VENTURA DIVISION March 24, 2021 03/26/2021 08:20:00 AM DEPT.: 41 COUNTY OF VENTURA JUDICIAL OFFICER: Ronda McKaig CASE NUM: CASE CATEGORY: EVENT TYPE: CASE TITLE: CASE TYPE:Civil - Unlimited Product Liability 56-2015-00469643-CU-PL-VTA NORDYKE VS. SOUTHERN CALIFORNIA EDISON COMPANY Motion to Dismiss - for Mandatory Dismissal Pursuant to California Code of Civil Procedure Section CAUSAL DOCUMENT/DATE FILED: Motion - Other, 02/11/2021 stolo COVID-19 NOTICE: Until further notice, all attorneys and self-represented parties in law and motion hearings must appear via Court Call; there shall be no personal appearances without the prior approval of Judge McKaig. You may contact Court Call as follows: www.courtcall.com or call 888-882-6878. Please check in by 8:20 AM for the 8:30 AM calendar. To submit on a tentative decision, e-mail the Court at Courtroom41@ventura.courts.ca.gov or by fax to Judge McKaig's secretary, Isabel Alarcon, at 805-477-8790. If a party submits on the tentative decision without appearing, but another party appears, the hearing will be conducted in the absence of the non-appearing party. ____________________ TENTATIVE RULING Defendant Southern California Edison moves to dismiss the claims asserted by plaintiff Michelle Nordyke as successor in interest to plaintiff Greg Nordyke (deceased), as well as any claims asserted by the putative class that Michelle Nordyke purports to represent. The motion to dismiss is based on Defendant's contention that Plaintiffs failed to bring the action to trial within the five-year period set forth in Code of Civil Procedure section 583.310, extended by six months pursuant to Judicial Council's Emergency Order 10. The Court intends to grant the motion in part and deny the motion in part, as set forth below. RELEVANT FACTS The complaint was filed on July 14, 2015. The five-year period under section 583.310 expired July 14, 2020. The additional six months pursuant to the Emergency Order 10 extended the deadline to January 14, 2021. Sadly, Greg Nordyke died on February 15, 2020. His successor in interest, Michelle Nordyke, is his wife. She was identified as his chosen successor no later than July 16, 2020, when her substitution as plaintiff was suggested to opposing counsel. She filed a motion to be substituted as plaintiff on January 21, 2021, and was appointed on February 26, 2021. She purports to bring claims on behalf of a putative class. Since the case was filed, little has been done to prosecute the case. Plaintiff has taken only one deposition and no motion for lass certification was ever filed. ANALYSIS Legal Authorities In computing the deadline under section 583.310, the Court must toll time as set forth in section 583.340. That section provides that time is tolled for any periods where the Court's jurisdiction is suspended, prosecution is stayed or enjoined, or where bringing the action to trial is impossible, impracticable or futile. Plaintiff argues that the Court's jurisdiction was suspended, or alternatively, prosecution of the case was impracticable, for the entire period between Greg Nordyke's death on February 15, 2020, and the appointment of Michelle Nordyke as his successor in interest on February 26, 2021. As a result, Plaintiff argues that she is entitled to tolling for that approximately one-year period in addition to the six-month extension under the Emergency Order. Plaintiff cites Pham v Wagner Litho Mach (1985) 172 Cal.App.3d 966 TENTATIVE RULINGS Page: 1 CASE NUMBER: CASE TITLE: NORDYKE VS. SOUTHERN CALIFORNIA EDISON COMPANY 56-2015-00469643-CU-PL-VTA for the proposition that, in evaluating dismissal under CCP 583.310, et seq., a plaintiff is entitled to tolling for the entire period between the time of a plaintiff's death and the appointment of a successor even where there is a lengthy delay in the appointment of a successor. While the Pham case supports Plaintiff's argument that some amount of tolling is appropriate during the period between a plaintiff's death and appointment of a successor plaintiff, the Pham case does not tell us how much tolling is warranted. In Pham, the defendant moved to dismiss three months past the five-year deadline and the court was faced with the determination of whether and how long tolling extended the deadline. After concluding that some tolling was warranted, the court turned to the issue of how much. The court noted that a reasonably diligent effort to locate the plaintiff's heirs took one year. The court also received evidence that there was a dispute amongst heirs concerning rights to the estate, and it was an additional two years before these issues were resolved and a successor plaintiff was appointed. The court considered the authority for finding that it lacked jurisdiction during the period that no successor plaintiff had yet been appointed, noting that it could conceivably toll the entire three-year period it took to appoint a successor under the holding of Herring v. Peterson (1981) 116 Cal.App.3d 608, 613 [in connection with determining five-year deadline under CCP 583, entire period between death of defendant and appointment of successor defendant is tolled, notwithstanding significant delay]. The court also considered whether it should treat tolling as the court did in Stella v. Great Western Sav. & Loan (1970) 13 Cal.App.3d 732, 739, wherein the court tolled only the time reasonably consumed by the impracticability of a party to bring the case to trial. Under the Stella analysis, the Pham court determined that tolling would be limited to the reasonable one-year period it took to locate the heirs using reasonable diligence. Unfortunately, the Pham court did not rule on which approach was correct because, in light of the fact that the parties were only three months past the five-year deadline, tolling under either analysis was sufficient to deny the motion to dismiss. (Pham, supra, 172 Cal.App.3d at p. 974.) The lack of clarity in Pham is exacerbated by its discussion regarding whether tolling was warranted at all, in which the court analyzed the suspension of a court's jurisdiction when a party dies. In that discussion, the Pham court indicated that a court's jurisdiction, both in the strict and broad senses, is suspended when a party dies, and it does not matter whether the party is the defendant or the plaintiff. (Id. at pp. 971-972.) This Court sees some issue with this analysis. There is a rational basis for construing jurisdiction in the more narrow sense under section 583.310, and there is a distinction between tolling time on jurisdictional grounds when a defendant dies and there is no easily identifiable entity against which a diligent plaintiff can prosecute claims, as compared to a situation where a plaintiff dies and there are unreasonable delays in appointing the plaintiff's successor.[1] The suggestion in Pham that death of a party always suspends a court's jurisdiction under section 583.340 would result in a rule that could be subject to abuse and undermine the purpose of section 583.310. Moreover, if the Pham court was convinced that tolling was required for the entire period between death and appointment of a successor on jurisdictional grounds, its concluding analysis as to the appropriate length of tolling, comparing tolling under Herring and Stella, was wholly unnecessary. As a result, while the Pham case is precedent to which the Court must adhere, the Court has reason to doubt that it stands for the proposition that tolling must be applied to the entire period between the death of a plaintiff and the appointment of a successor plaintiff on jurisdictional grounds. Additionally, the Court is not aware of any case law wherein a court's jurisdiction as to putative class claims was suspended because the proposed class representative died or no longer had actionable claims. Application to Facts Putative Class Claims Plaintiff has not specifically addressed Defendant's argument that tolling does not apply to the putative class claims. None of the cases cited by Plaintiff involve putative class claims. The Court is not aware of any case law suggesting that its jurisdiction over a putative class would be suspended where a named plaintiff dies or is no longer part of a case. The Court does not find that tolling is warranted on jurisdictional grounds for putative class claims. As to whether tolling is warranted due to impossibility or impracticability, Plaintiff has proffered no explanation as to why it took over a year to identify a new purported class representative. Even if the Court were to determine that three months was a reasonable time to toll the five-year deadline due to a reasonable period of impracticability in identifying and appointing a substitute, the deadline would only be extended to April 14, 2021. It is impossible for plaintiffs to bring any class claims to trial by that date as it is less than three weeks away and plaintiffs have not yet moved for class TENTATIVE RULINGS Page: 2 CASE NUMBER: CASE TITLE: NORDYKE VS. SOUTHERN CALIFORNIA EDISON COMPANY 56-2015-00469643-CU-PL-VTA certification. As a result, the Court finds that Defendant's motion to dismiss should be granted as to the putative class claims. Plaintiff's Individual Claims The Court does not read Pham to hold that tolling is always required from the date a party dies to the date a successor is appointed. The Court relies on numerous cases (several of which were cited by Defendant) providing that jurisdiction - in the broad sense of that word - does not cease upon the death of a party. The Court also relies on its analysis of Pham, including the contradiction inherent in Pham's analysis of jurisdictional suspension and its discussion about the length of tolling. Finally, the Court finds the Herring case to be distinguishable in that the case involved the court's suspended jurisdiction where a defendant had died and a replacement was not identified or appointed and thus was not subject to the court's reach. The Court finds that the better interpretation of all of these authorities, and the one that best preserves the purposes of the statute, is to toll time during the period for which prosecution was impracticable, impossible or futile. Here, it bears noting that Plaintiff's predecessor was not diligent in prosecuting this case. A single deposition has been taken and only minimal efforts have been made toward conducting two other depositions. There also appears to have been a lack of diligence in appointing a successor in interest for Mr. Nordyke's individual claims. Counsel was aware by no later than July 16, 2020, that Ms. Nordyke would be the successor. Whether determinations were made prior to that date is unknown; Plaintiff submitted no evidence on the issue of diligence. However, the Court finds it is not unreasonable to assume some reasonable period of time to identify a successor and secure the successor's appointment. Six months is a reasonable period of time, and the Court finds that six months of tolling beyond the January 14 deadline is appropriate. The Court intends to set a trial date for this matter in early May 2021./n [1] The Court's concerns about the Pham court's analysis are bolstered by cases cited by Defendant, including Smith v Bear Valley Milling & Lumber (1945) 26 Cal.2d 590 and Collison v Thomas (1961) 55 Cal.2d 490, which Defendant cites for the proposition that death of a party does not "oust" the court of jurisdiction. The Court acknowledges that those cases predate the amendment to the five-year statute that provided for tolling where a court's jurisdiction is "suspended," and they did not address the issue as fully or directly as the Pham court. Defendant also cites Sacks v. FSR Brokerage (1992) 7 Cal.App.4th 950 for the proposition that jurisdiction is not lost when a party dies even though certain actions taken by the court before a substitute is appointed may be voidable. 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