GAINES v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

Appellant’s Supplemental Reply Brief

Cal.September 18, 2015

SUPREME COURT COPY S215990 IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT MILTON HOWARD GAINES, | F | L E D Plaintiff/Appellant, SEP 18 2015 VS. Frank A. McGuire Clerk Deput FIDELITY NATIONAL TITLE INSURANCE COMPANY,et.al. ep Defendants/Respondents. 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 Rolf M. Treu, Judge REPLY TO SUPPLEMENTAL LETTER BRIEFS BY 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 Flower Street, Suite 1800 Los Angeles, CA 90071 Telephone: (213) 489-0028 Facsimile: (213) 489-0552 Attorneysfor Plaintifj/Appellant MILTON HOWARD GAINES I. INTRODUCTION Plaintiff and appellant MILTON HOWARD GAINES(“Appellant”) submits this reply to the supplemental letter briefs of Respondents Fidelity - National Title Insurance Co., Bobby Jo Rybicki (collectively “Fidelity”), Lehman Brothers Holdings,Inc. (“Lehman”), and Aurora Loan Services, LLC (“Aurora”). This Court’s orderfiled July 29, 2015, requested that the parties submit supplementalletter briefs on the following questions: 1, Did thetrial 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 oftrial and a continuanceoftrial for purposes of Code of Civil Procedure, section 583.340, subdivision (b)? Appellant’s supplemental brief contendedthat the trial court’s April 3, 2008 order “striking the currenttrial date of September 22, 2008,” did constitute a “stay”of the “trial of the action” requiring mandatory tolling under CCP § 583.340(b). Appellant argued that interpreting the court’s order as a stay is consistent with and supported by the record regarding the express intent of the parties to obtain a “stay” of the proceedingsto “preserve the 1 status quo” (CT 250-276). Interpreting the orderas a stay is also consistent with the functional effect of order since the scheduled trial date of September 22, 2008 was struck and no newtrial date was scheduled. Thetrial court issued an order to “stay” the proceedings for 120 days, not to “continue”thetrial date. Thetrial court issued an orderto strike the existing trial date, and it did not schedule a newtrial date. (CT 278-279). Appellant also contended there was no appellate authority addressing the factual scenario presented in the instant case regarding the questions posedby this Court. Therefore, this Court should apply the analyses articulated in Holland v. Dave Altman’s R.V. Center (1990) 222 Cal.App.3d 477 and People v. Santana (1986) 182 Cal.App.3™ 185 and determine that the factors which distinguish between a “stay”oftrial and a “continuance”oftrial in the instant case are whether the September 22, 2008trial date was, in fact, continued to a specific later date and whetherthe functional effects of thetrial court’s ruling was to suspendingall litigation activities pending the defined contingency of mediation efforts by the parties. Respondents Fidelity, Lehman and Aurora contend the April 3, 2008 order did not constitute a stay of the trial of the action based upon the argumentthat such a finding would be inconsistent with CCP § 583.340(b) and Bruns v. E- Commerce Exchange, Inc. (2011) 51 Cal.4" 717. (Fidelity Briefpgs. 2-5; 2 Lehman/AuroraBriefpgs.4-7.) Fidelity’s brief was silent on the second question presented by this Court while Lehman and Aurora submitted that the factors distinguishing between a “stay” and a “continuance”are similar to the bright line test discussed by this Court in Bruns. (Lehman/Aurora Brief pgs.9-10) In reply, Appellant contends a finding thatthe trial court’s April 3, 2008 order wasa stay of the “trial of the action” would not be inconsistent with this Court’s ruling in Bruns and doesfit within the narrow exception of CCP § 583.340(b). Appellant contends the reasoning applied in Holland and Santana, which werenot overruled by Bruns, should control this Court’s decision regarding these issues. I. HOLDING THAT THE TRIAL COURT’S APRIL 3, 2008 ORDER WASA STAY OF THE “TRIAL OF THE ACTION” WOULD NOT BE INCONSISTENT WITH THIS COURT’S RULING IN BRUNS AND FITS WITHIN THE NARROW EXCEPTION OF CCP§ 583.340(B) The questions presented by this Court pertain exclusively to the issue of whetherthetrial court’s April 3, 2008 orderstriking the trial date constituted a stay ofthe trial. Respondents’ arguments rely on this Court’s ruling in Bruns. However, Respondent Fidelity concedes that “Admittedly, in Bruns, this Court dealt with the stay of the proceedingsin its analysis and not stays ofthe trial”, and “Admittedly, this Court was addressing stays of the prosecution of the action under subdivision (b) and not stays oftrial.” 3 (Fidelity Brief, pg. 3, § 42 and 4) (Emphasis added). RespondentFidelity must make these admissions because the instant case raises issues regarding a stay oftrial, and the decision in Bruns did not. Indeed, this Court’s ruling in Bruns focused specifically on the meaning of the word “prosecution” because unlike Holland andthe instant case, the trial in Bruns was neverstayed: “Holland did not address whetherthe “prosecution” of the action was stayed within the meaning of section 583.340 when only a designated proceedingin a case, other than a trial, was stayed or suspended “until the happening of a defined contingency.” (Citing People v. Santana, supra, 182 Cal.App.3d at p. 190, 227 Cal.Rptr. 51.)10 Because the word “stay”is ambiguousin this context, we turn to what must be stayed. Only when the “prosecution”or “thetrial” of the “action” is stayed does runningofthe five- year period halt under 583.340(b). The trial was never stayed in this case; we therefore focus on the meaning of the word “prosecution.” Bruns, supra at 725. [Emphasis added.| Nothing set forth in the Bruns opinion or respondents’ supplemental briefs indicate that the holding in Holland, or the reasoning supporting that holding, were overruled or inapplicable whena stay ofthe trial is considered. In the Bruns opinion, this Court simply recognized that the holding in Holland, while informative whena stay ofthetrial is at issue, did not fit the Bruns circumstances. Similarly, the instant case does notfit the Bruns circumstances and creates no conflict with the decision in Bruns. Despite relying heavily on Bruns, Respondents’ briefs are silent as to factors which distinguish this case 4 from Holland. Fidelity’s brief makes no mention ofHolland. Lehman and Aurora’s brief simply copy and paste portions of the Bruns decision referring to Holland, while omitting the portions of the opinion which distinguish Bruns from Holland and explicitly address this Court’s questions. (Lehman Brief pg. 7-10). Respondents’ failures to distinguish Holland are admissions that the facts and issues presented in the instant case are more analogousto the facts and issues presented in Holland than the facts and issues presented in Bruns. A ruling in Appellant’s favor would not be in conflict with the decision in Bruns. HI. HOLDING THAT THE TRIAL COURT’S APRIL 3, 2008 ORDER WAS A STAY OF THE “TRIAL OF THE ACTION” FITS WITHIN THE NARROW EXCEPTION OF CCP§ 583.340(B) Respondents arguments that a finding in Appellant’s favor would be inconsistent with CCP § 583.340(b) are primarily based on Bruns. (Lehman/Aurorapg. 3-4). However, an analysis of the plain language of the statute, coupled with analyses of the distinguishing facts in Bruns as comparedto the similar facts in Hollandindicate that there is no conflict. CCP § 583.340(b)states: “In computing the time within an action must be broughtto trial pursuantto this article, there shall be excluded the time during which any of the following conditions existed: (b) Prosecution or trial of the action was stayed or enjoined.” Therecordis clear that the September 22, 2008trial was struck from the calendar and wasnot continued to a later date. (CT 279). Further, thetrial court’s order striking the trial date did operate as a stay ofthetrial and the proceedings consideringall litigation (pleading, discovery, etc.) was frozen until after the happening of a defined contingency, the mediation. (CT 247- 248; 259-262; 267-269). People v. Santana (1986) 182 Cal.App.3d 185, 190. Thetrial court’s languagethat only already outstanding discovery be responded to should not be.determinative. Those discovery responses,if any, were allowedonlyto facilitate the mediation. Further, even assuming hypothetically that any outstanding discovery responses wereserved, the parties would have been precluded from moving to compel further responses underthe trial court’s order, which arguably would have stayed the time to do so as well. Thetrial court’s use of the word “strike,” is not determinative in and of itself, and this Court is respectfully requested to consider the functional intent of the trial court’s ruling. In Holland, the appellate court stated: “While the January 26, 1987 order used a form of the word “continue,” it is plain that the court did not intend to postponetrial to any knowndate. Instead, it put the trial over indefinitely, until the happening of a designated event: determination of the Inderbitzen appeal. The legal effect of this order wasto stay, rather than to continuethetrial.” Holland, supra at 482. As a preliminary matter, the Court of Appeal expressly held that the dismissal statute is inapplicable to Lehman in this matter because Lehman 6 was not named anddid not appearin the action as a defendant until 2011 and the five-year period had not expired onits face. In its supplemental brief Lehman againrecites alleged facts that are not supported by the record since none ofthe respondents ever presented any facts other than the brief declaration of counsel for Fidelity which did not address any facts of the case. (CT 1010). Appeliant’s contentions regarding the facts of this case are undisputed. (CT 236-279). Notwithstanding, Respondent Lehman’s policy argumentthat thetrial court’s order does not or should not function as a stay under CCP § 583.340(b) simply by virtue of the fact that it was initially procured through Respondent Aurora’s desire to enter into an agreementstaying thetrial and entire action “to preserve the status quo” ultimately fails to answer the two questions presented by the court. No authority is cited by Respondents to support their contention that a trial court order which usesthe term “strike” but effectually stays a trial date under CCP § 583.340(b) nonetheless does not operate as a stay simply because the parties were in agreement or sought to facilitate that order. No authority is cited by Respondents to support their contention that the agreementofthe parties to request an orderto “strike” the trial date and “stay” the case does not or should notlegally stay the trial under CCP § 583.340(b) simply becauseit is unfavorable to the dismissed parties’ position. Thus, Respondent Lehman’s arguments onthe basesofpolicy do not 4 answerthis Court’s questions. IV. THE FACTORS OF WHETHER ANOTHER TRIAL WAS SCHEDULED AFTER STRIKING THE SEPTEMBER22, 2008 TRIAL DATE, WHETHER THE TRIAL COULD NOT BE SCHEDULED UNTIL THE HAPPENING OF A CONTINGENCY, WHETHER LITIGATION COULD FUNCTIONALLY CONTINUE, AND THE INTENT OF THE COURT AND THE PARTIES SHOULD BE THE FACTORS CONSIDERED IN DISTINGUISHING BETWEEN A STAY OF TRIAL AND A CONTINUANCEOF TRIAL IN THIS CASE Fidelity’s brief is silent regarding this question. Lehman’s brief appears to favor a Bruns analysis despite Fidelity’s admissions that Bruns deals with a different set of circumstancesthan the instant case. In Holland, the fact that the trial court’s order put the trial over indefinitely until the happening of a designated event instead of postponingthetrial to another known date appeared to be a significant factor in the evaluation of the natureofthe order as a Stay ofthe trial rather than a continuanceofthetrial. Id. at 482. In Santana, the court also stated that the “...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. Appellant submits that these factors should be considered in distinguishing between a stay or continuanceoftrial. The parties agreed upon a “stay” of the proceedings, including the scheduledtrial date of September 22, 2008. (CT 259-269). The parties requested that thetrial court “stay” and “strike” the September 22, 2008trial date in the ex parte application of April 3, 2008 (CT 252). Thetrial court 8 issued an orderstriking the trial date and staying all proceedings including the trial date (CT 279). Respondents’ attempts to have this Court ignore what was expressly agreed to by the parties, ignore whatthe trial court expressly ordered, and ignore the functional effect of what occurred in this case should be rejected by this Court. V. CONCLUSION Based on the foregoing authorities and arguments, this Court should determinethat: 1. The trial 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 Codeof Civil Procedure §583.340(b) becauseit resulted in a temporary suspension of all trial court proceedingsin the case until the happening of a defined contingency, the mediation conducted by the parties; 2. The factors which distinguish betweena stay oftrial and a continuanceoftrial for purposes of Code of Civil Procedure §583.340(b) support a finding that thetrial court’s order stayed thetrial of the action instead of continuingthe trial of the action because the expressintent of the parties, the expressintent of the court, and the functional effect of the 9 court’s order were to stay thetrial of the action, not to continuethetrial of the action. Respectfully submitted, IVIE, MeNEILL &WYATT W-KEITH WYATT ANTONIO K. KIZZIJE Attorneysfor Plaintiff andAppellant MILTON HOWARD GAINES 10 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS.: COUNTY OF LOS ANGELES ) Case Name: Milton Howard Gainesvs. Fidelity National Title Ins. Co,et.al. Case No:: $215990 I, the undersigned, say: I am and wasat all times herein mentioned,a citizen of the United States and a resident ofthe County of Los Angeles, State of California, over the age of eighteen (18) years and not party to the within action or proceeding; that my business address is 444 S. FlowerStreet, Suite 1800, Los Angeles, CA 90071; that on September 17, 2015, I served on interested parties in said action the within REPLY TO SUPPLEMENTAL LETTER BRIEFS BY PLAINTIFF AND APPELLANT MILTON HOWARD GAINESinsaid action or proceeding by depositing a true copy thereof, enclosed in sealed envelopes with postage thereon fully prepaid, in the United States mail at Los Angeles, California, addressed as follows: Clerk, California Supreme Court 350 McAllister Street Sao Francisco, CA 94102-7303 (Via FedEx Delivery Service, Original and 8 Copies) Clerk, California Court of Appeal Second Appellate District, Division Two 300 South Spring Street Floor Two, North Tower Los Angeles, CA 90013-1213 (Via US Mail) Clerk of the Superior Court 111 N. Hill Street Los Angeles, CA 90012-3014 Judge Rolf M. Treu (Via US Mail) Kevin Broersma, Esq. FIDELITY NATIONAL LAW GROUP 915 Wilshire Blvd., Suite 2100 Los Angeles, CA 90017 (Via US Mail) Substituted in as of4/23/14 Steven Ray Garcia, Esq. GARCIALEGAL A Professional Corporation 301 N. Lake Avenue, 7th Floor Pasadena, CA 91101 (626) 577-7500 (Via US Mail) steven@SRGarciaLegal.com A.I.Roop 3424 E. Turney Avenue Phoenix, AZ 85018 (Via US Mail) and 19475 N. Grayhawk #1089 Scottsdale, AZ 85255 Craig Johnson 6410 W. Maya Way Phoenix, AZ 85083 (Via US Mail) Craig Johnson Ray Management Group,Inc. 6410 W. Maya Way Phoenix, AZ 85083 (Via US Mail) Joshua Tornberg 26065 N.68th Drive Peoria, AZ 85383 (Via US Mail) I am "readily familiar" with the firm's practice of collection and processing correspondencefor mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion ofparty served, serviceis presumedinvalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. I declare, under penalty of perjury, under the law the foregoing is true and correct. Executedjon Sept California. e State of California, that V — 7 M. CHRISTINA MUNOZ