GAINES v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

Appellant’s Supplemental Brief

Cal.August 31, 2015

SUPREME COURT COPY $215990 _ IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT MILTON HOWARD GAINES, F | L E D Plaintiff/Appellant, AUG 31 2015 VS. Frank A. McGuire Clerk Deputy FIDELITY NATIONAL TITLE INSURANCE COMPANY,et.al. RC Defendants/Respondents. CG P g.25(b., AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT CASE NO. B244961 Superior Court, Los Angeles County Case No. BC361! 768 The Honorable RolfM. Treu, Judge SUPPLEMENTAL LETTER BRIEF OF PLAINTIFF AND APPELLANT MILTON HOWARD GAINES IVIE, McNEILL & WYATT W. Keith Wyatt, Esq.* (Bar No. 80859) wkwyatt@imwlaw.com Antonio K.Kizzie, Esq. (Bar No. 279719) AKizzie@imwlaw.com 444 South FlowerStreet, Suite 1800 Los Angeles, CA 90071 Telephone: (213) 489-0028 Facsimile: (213) 489-0552 Attorneysfor Plaintiff/Appellant MILTON HOWARD GAINES (PYERSIEOSRUD Log set AYeeeI Pursuant to the Court’s order filed July 29, 2015, plaintiff and appellant MILTON HOWARD GAINESsubmits this supplementalletter brief to address the following questions: l. Did the trial court’s April 3, 2008 order“striking the currenttrial date of September 22, 2008” (CT 279)constitute a stay of the “trial of the action” under Code of Civil Procedure, section 583.340, subdivision (b)? 2. Whatfactors distinguish betweena stay of trial and a continuanceoftrial for purposes of Code of Civil Procedure, section 583.340, subdivision (b)? I. THE TRIAL COURT’S ORDEROF APRIL 3, 2008 DID CONSTITUTEA STAY OF THE “TRIAL OF THE ACTION” UNDER CODE OF CIVIL PROCEDURE §583.340(b) Thetrial court’s order of April 3, 2008 did constitute a “stay” of the “trial of the action” under Code of Civil Procedure §583.340(b) for several reasons which include: 1. Theintent ofthe parties as expressly stated in communications between the parties prior to and at the time of the April 3, 2008 ex parte application was to obtain a “stay” of the proceedings to “preserve the status quo”. (CT 250-276); 2. The intent ofthetrial court as expressly stated in the April 3, 2008 order was to “stay” the case for 120 days to allow theparties to mediate 1 the issues while “striking” the existing trial date and scheduling a future post mediation andtrial setting conference date. (CT 278-281; 283-284). 3. Case authority supports the interpretation of the actions ofthe parties and the court as constituting a “stay” of the “trial of the action”as opposedto a “continuance”ofthe trial. Holland v. Dave Altman’s R.V. Center(1990) 222 Cal.App.3d 477, 481-483. In Holland, supra, the trial court granted a motion to dismiss for failure to bring a caseto trial within five years from the date that it was filed. The appellate court reversed the trial court’s dismissal after finding that the trial court failed to exclude time from the five-year computation as required by Code of Civil Procedure §583.340. The case in the trial court had been suspended for 16% months while plaintiff appealed the dismissal of one of the defendants, a Swiss citizen who had made a successful motion to quash an attempted substituted service. Thetrial court granted an ex parte application from plaintiff to “continue”thetrial during the pendencyofthe appeal. Thetrial court “vacated”the trial date and placed the case “off calendar pending the ruling on appeal”. The five year period from the date of filing the complaint expired during the appeal. After remandtothetrial court, the remaining defendants’ motion to dismiss under Code of Civil Procedure §583.310 was granted. Holland, supra, 222 2 Cal.App.3d, at pp. 480-481. The appellate court reversed the dismissal based on its determination that the time during which the case was suspended should have been excluded from the calculation of the five year period pursuant to Code of Civil Procedure §583.340(b) and (c). The appellate court ruling specifically addressed the meaning of the term “stay” as used in §583.340. It determined that a “stay” meant “...an indefinite postponementofan act or the operation of some consequence, pending the occurrence of a designated event.” The court cited a criminal case, People v. Santana (1986) 182 Cal.App.3™ 185, which defined a “stay”as the “..,temporary suspension of a procedure in a case until the happening of a defined contingency.” In addition, the court cited Black’s Law Dictionary which defined a stay as “a suspension of the case or some designated proceedings within it.” The court contrasted the use of the term “stay” with the definition of “continuance” whichthe court defined as “‘...a postponement of the trial of the pending action to a later date, at which timeit automatically resumes.” (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, §6, p. 23.) Holland, supra, at pp. 480-483. The appellate court in Holland reasonedthat the trial court’s use of the word “continue” in the trial court’s order was not determinative. Thetrial court’s order, which putthe trial over indefinitely until the happening of a 3 designated event instead of postponingthetrial to a known date, was determinedto be a stay ofthe trial rather than a continuanceofthetrial. The facts and issues presented in the instant case are substantially analogousto the facts and issues presented in Holland. Plaintiff GAINES had an agreement with all defendants and other holders of interests in the subject property which wasthe basis and substanceofthe April 3, 2008 ex parte application. The agreement wasthat the action should be “stayed” for 120 daysto allow the parties to maintain the “status quo” while efforts were made to mediate the case. (CT 259-269). The scheduledtrial date of September 22, 2008 was not continuedto a later date. Instead, thetrial court struck the trial date and scheduled a post mediation andtrial setting conference for July 16, 2008. (CT 279). Thetrial setting conference which was scheduled for July 16, 2008 did not occur as scheduled due to the absence of the formertrial judge and the reassignmentofthe case to a new judge. After the case was assignedto a new judge, a status conference was conducted on November6, 2008. (CT 238). The stay was terminated at the November6, 2008 status conference, and the case was scheduled for anothertrial setting conference on December11, 2008. (CT 238; 304). The next scheduledtrial date was August 29, 2009. (CT 238). There is nothing in the record to indicate that the September 22, 2008 trial date was ever “continued”. There are no bases for determining that the September 22, 2008 trial date was continued. Thetrial court made an order on April 3, 2008 “striking” the September 22, 2008trial date and no new trial date was scheduled. Therefore, the “trial of the action” scheduled for September 22, 2008 was stayed for purposes of Code of Civil Procedure §583.340(b). The “trial of the action” was not continued. Il. THE FACTORS WHICH DISTINGUISH BETWEENA STAY OF TRIAL AND A CONTINUANCE OF TRIAL FOR PURPOSES OF CODE OF CIVIL PROCEDURE §583.340(b) ARE BASED ON WHETHER THE TRIAL DATE IS SUSPENDED UNTIL THE HAPPENING OF A DEFINED CONTINGENCY IN CONTRAST TO POSTPONING THE TRIAL DATE UNTIL A LATER DATE AT WHICH TIME THE TRIAL AUTOMATICALLY RESUMES The only reported appellate opinion found by appellant which seemsto address the second question of this Court is Holland v. Dave Altman’s R.V. Center (1990) 222 Cal.App.3d 477. The Holland decision specifically addressed the distinction betweena stay oftrial and a continuanceoftrial within the context of reviewing the dismissal of an action pursuant to Code of Civil Procedure §583.310. The Court in Holland reversed the dismissal based on its determination that the action had been stayed pursuant to Code of Civil Procedure §583.340(b) and the five year period had not expired after the Court calculated and applied the 5 appropriate exclusionsoftime. In People v. Santana (1986) 182 Cal.App.3d 185, a case cited in the Holland opinion, the appellate court discussed the distinctions between the terms “stay” and “strike”. A “stay” was defined as a “...temporary suspension of a procedure in a case until the happening of a defined contingency.” In contrast, the term “strike” was defined as “...an unconditional deletion of the legal efficacy ofthe stricken allegation or fact for purposes of a specific proceeding.” The court in Santana also reasoned thatthe “...focus should not be on the words used but on the functional effects of the trial court’s order.” People v. Santana, supra, at pp. 190-191. Applying the reasoning expressed in the Holland and Santana decisions, it is clear that the trial court in the instant case stayed thetrial scheduled for September 22, 2008. Thetrial court’s order temporarily suspendedall litigation activities, including the trial date, for 120 days to allow the parties to attempt resolution of the case by mediation proceedings. Thetrial date was not continued to a later date at which time it automatically resumed. No newtrial date was scheduled. Asaresult of the stay, defendant AURORA wasnotrequiredto file a responsive pleading as it would have been underthe then applicable “fast track” rules. AURORA discontinuedits foreclosure proceedings 6 regarding the subject property. Plaintiff GAINES ceasedefforts to obtain a preliminary injunction to stop the foreclosure proceedings. Defendant COUNTRYWIDErefrained from making a motion for summary judgment. Other entity defendants, UNITED MORTGAGEand UM ACQUISITIONS,that claimed interests in the subject property agreed to participate in the mediation. All parties refrained from conducting any new discovery. (CT 247-248; 259-262; 267-269). Ifthe trial date had merely been continued,all of the parties would been allowed to continuelitigating the matter. It would have been in bad faith for any of the parties to continue to prosecute the action in defiance ofthetrial court’s order and the agreement between the parties. (See Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4"247, 256.) Ii. CONCLUSION Based on the foregoing authorities and arguments, this Court should determinethat: 1. Thetrial court’s order of April 3, 2008 “striking the current trial date of September 22, 2008 constituted a stay of the “trial of the action” under Code of Civil Procedure §583.340(b) becauseit resulted in a temporary suspension of all trial court proceedings in the case until the happening ofa defined contingency, the mediation conducted bythe parties; . The factors which distinguish betweena stay oftrial and a continuanceoftrial for purposes of Code of Civil Procedure §583.340(b) support a finding that the trial court’s order stayed the trial of the action instead of continuingthetrial of the action becausethe intent of the parties, the intent of the court, and the functional effect of the court’s order were to stay the trial of the action, not to continuethetrial of the action. Respectfully submitted, IVIE, McNEILL & WYATT - KEITH WYATT Attorneysfor Plaintiff andAppellant MILTON HOWARD GAINES PROOF OF SERVICE I am employed in the County of Los Angeles at 444 South Flower Street, Suite 1800, Los Angeles, California 90071. On the date of mailing, I am over the age of eighteen, and not a party to the above described action. On May 16,2014, I served the within: Supplemental Letter Brief of Plaintiff and Appellant MILTON HOWARD GAINES By depositing a true copy thereof enclosed inasealed envelope addressed as follows: Clerk, California Supreme Court 350 McAllister Street Sao Francisco, CA 94102-7303 (Via FedEx Delively Service, Original and 13 Copies) Clerk, California Court of Appeal Clerk of the Superior Court Second Appellate District, Division Two 111N. Hill Street 300 South Spring Street Los Angeles, CA 90012-3014 Floor Two, North Tower Los Angeles, CA 90013-1213 Kevin Broersma, Esq. FIDELITY NATIONAL LAW GROUP 915 Wilshire Blvd., Suite 2100 Los Angeles, CA 90017 Substituted in as of 4/23/14 Steven Ray Garcia, Esq. GARCIALEGAL A Professional Corporation 301 N. Lake Avenue, 7th Floor Pasadena, CA 91101 (626) 577-7500 steven(@SRGarciaLegal.com A.].Roop 3424 E. Turney Avenue Phoenix, AZ 85018 and 19475 N. Grayhawk #1089 Scottsdale, AZ 85255 Craig Johnson 6410 W. Maya Way Phoenix, AZ 85083 Cnilg Johnson Ray Management Group,Inc. 6410 W. Maya Way Phoenix, AZ 85083 Joshua Tornberg 26065 N. 68th Drive Peoria, AZ 85383 X_BY FEDEX DELIVERY SERVICESfor overnight express mail delivery. TY? M CHRISTINA MUNOZ