GAINES v. FIDELITY NATIONAL TITLE INSURANCE COMPANYRespondents, Fidelity National Title Insurance Company and Bobby Jo Rybicki, Supplemental BriefCal.August 28, 2015 SUPREME COURT COPY Fidelity National Law Group . 915 Wilshire Boulevard, Suite 2100 ' Los Angeles, California 90017 Kevin R. Broersma,Esq. Vice President, Trial Counsel, Southwest Region SUPREME COURTDirect: (213) 438-7207 | FILEDFax: (213) 438-4417 E-Mail: Kevin.Broersma@fnf.com AUG 28 2015 August 27, 2015 Frank A. McGuire Clerk VIA PERSONAL DELIVERY Attn: Clerk of the Court Deputy Califorma Supreme Court Office of the Clerk, First Floor 350 McAllister Street San Francisco, CA 94102 Re: Fannie Marie Gainesv. Fidelity National Title Insurance Co., et al. (S215990) Dear Chief Justice Cantil-Sakauye, The following brief is submitted on behalf of Respondents, Fidelity National Title Insurance Co. and Bobby Jo Rybicki (“Fidelity”) on the following twoissues: 1. Did the trial court’s April 3, 2008 order “striking the current Trial Date of September 22, 2008” (CT 279) constitute a stay ofthe “trial of the action” under Codeof Civil Procedure, section 583.340, subdivision (b)? 2. Whatfactors distinguish betweena stay of trial and a continuance of trial for purposes [of] Code of Civil Procedure, section 583.340, subdivision (b)? /// [If /if August 27, 2015 Page 2 1. An Interpretation of Subdivision (b) with Respect to Stays of Trial that Would Allow the Order in this Case to Toll the Five Year Statute Would be Inconsistent with This Court’s Reasoning in BrunsStrictly Interpreting Subdivision (b) With Respect to Stays of Proceedings within the Action The very purposeofthe five year statute was to create a uniform set of unambiguousrules regulating dismissals for lack of prosecution that do not change with the ebb andflow of every policy shift in California. (Bruns, at 728; citing to Revised Recommendation Relating to Dismissalfor Lack of Prosecution (June 1983) 17 Cal. Law Revision Com. Rep. (1983) p. 2) As stated by this Court in Bruns, citing to Coalition ofConcerned Communities, Inc. v. City ofLos Angeles, 34 Cal.4" 733, 737 (2004), “Ifthe statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history andpublic policy.” This Court’s citation to Coalition ofConcerned Communities, Inc., was based uponits determination that the five year statute did not definitively answer the question of whetherpartial stays, of proceedings within the action, would qualify for tolling under the five year statute under subdivision (b). The five year statute similarly does not definitively answer what type ofstay oftrial would qualify for tolling under the five year statute. Although in Bruns, this Court ultimately did not look at the wordstay in the context of a stay oftrial, there was an express acknowledgementthat the word “stay” is ambiguousgenerally as to both prosecution of the action, and stay of the tial. (Bruns, at725) As this Court pointed out in Bruns, a “stay” freezes a court’s proceedingsat a particular point. It can be used to stop the prosecution ofthe action altogether, or to hold up only some phase ofit, such as an execution about to be levied on a judgment. (Bruns,at 724; Citing to Black’s Law Dict., p. 1267 (5" ed. 1979)) Because ofthis, this Court should look to the statute’s purpose, the legislative history and public policy in determining whetherthe orderin question (CT, 279) would qualify as a stay of the trial under subdivision (b) of Section 583.340. August 27, 2015 Page 3 i. This Court’s Reasoning in Bruns, Which Narrowly Interprets Subsection (b) With Respect to Stays of the Prosecution of the Action in Light of Subsection (c),is Equally Applicable to Stays of the Trial Under Subsection (b) Onits face, Section 583.340(b) does not expressly explain any legally relevant distinction between a stay ofa proceeding andthe stay ofa trial. For that reason, the strict treatment and interpretation this Court gave to subdivision (b) in Bruns with respect to stays ofthe proceedingsis the only interpretation that makes logical sense with respect to an interpretation of stays ofthe trial under the same subdivision. Admittedly, in Bruns, this Court dealt with the stay of the proceedingsin its analysis and notstays of the tial. However, there is no reason that the lengthy analysis this Court gave in Bruns with respectto partial and complete stays would not apply equally with respect to this specific issue. There is certainly nothing in the plan languageofthestatute, legislative history or policy underlying the five year statute that would support a different analysis. Asthis Court has already stated in Bruns, subsection (b) cannot be read in isolation, and because ofthis, the other subdivisions must be taken into accountto attribute the most common sense meaningto the subdivision being interpreted. This Court determined that the mere existence of subdivision (c) of Section 583.340 warrants strict interpretation of subdivision (b), because subdivision (c) of Section 583.340 already allows for tolling for partial stays ofprosecution ofthe action, where those time periods meet the requirements of being impossible, impracticable, and/or futile.” (Bruns, at 726) Admittedly, this Court was addressing stays of the prosecution ofthe action under subdivision (b) and not stays of the trial. However, the general logic of this Court was that the mere existence of subsection (c) generally supported a narrower, bright line, interpretation of subsection (b) as a whole. Therefore, if there was some kind oflegitimate delay resulting from stay that was only partial, plaintiff was still protected by subdivision(c)if the delay met the requirements of subdivision (c). Similarly, there is no reason not to apply the samelogicin this case: if some kindoftrial continuance does not meet the strict requirements of subdivision (b), plaintiff is still protected by the more flexible subdivision (c). As this Court stated: August 27, 2015 Page 4 “When the statute is read as a whole, it becomes apparent that subdivision (b) contemplates a bright-line, nondiscretionary rule...[s]ubdivision (c) gives the trial courts discretion to exclude additionalperiods, includingperiods when partial Stays were in place, when the court concludes that brining the action to trial was ‘impossible, impracticable, orfutile.’ Obviously, ifa complete stay is in effect, bringing the action to trial is impossible. It makes sensefor the Legislature to state a bright-line rule in this situation. The effect ofa partial stay can varyfrom stay to stay and case to case. A partial stay might, or might not, make it ‘impossible, impracticable, or futile’ to bring the action to trial.” (Id. At 726) [Emphasis added] Also, at page 729 of Bruns, this Court stated: “Plaintiffargues that the generalpolicy infavoroftrial on the merits ...supports a broad interpretation ofsection 583.340(b). But our interpretation ofsubdivision (b) is consistent with this policy. This is because subdivision (b) is not the only exclusionfrom thefive-yearperiod. Whenit enacted subdivision (b) ofsection 583.340, the Legislature also enacted the moreflexible subdivision (c) ofthe provision, whichpermits trial on the merits when appropriate in situations not governed by subdivision (b).”” (Id. At 729) [Emphasis added] Again, while this Court was specifically addressing the portion of subdivision (b) that deals with stays of the prosecution ofthe action, there is no logical reason whythe portion of subdivision (b) dealing with stays ofthe trial would, or should, warrant an interpretation that allows for a non-bright-line, non-discretionary rule, when subdivision (c)is clearly a catch-all provision that would operate as a back-up for any legitimate tolling claims that do not meet the bright line intent of the Legislature for the entirety of subdivision (b). This Court reasonedthat the very existence of subdivision (c) warrants a morerestrictive, narrow interpretation of subdivision (b). Indeed, subdivision (c) would be redundantif subdivision (b) were interpreted in a mannerthat does not attribute strict, definitive meaningto its August 27, 2015 Page 5 terms. The five year statute already has built-in protections for justifiable delay that do notfit the strict requirements of subdivisions(a) or(b). Subsection (c) of Section 583.340 is broad enough to encompassthereality of broader constraints on civil litigation in California wheretolling is justified, and can properly take into accountshifting budgetary, or other, constraints. Therefore, before the actual orderis analyzed, it is importantto establish that subdivision (b) should be interpretedstrictly and in light of subdivision (c). 2. The Authority of the Parties to Enter into Agreements to Continue TrialDates Along with the Parties’ Relative Ability to Facilitate Resolution of the Case During the Purported “Stay” Should be the Relevant Factors to be Considered in Determining Whether an Order Qualifies for Tolling Under Subdivision (b) as a Stay of Trial or Whether the Order was Merely a Continuance i. To Allow the Order “Striking the Current Trial Date...” in this Case to Toll the Five Year Statute as a Qualified “Stay of the Trial” would Underminethe Purposeof the Five Year Statute and Could Apply to Any Order in Which a Trial Court Vacates a Trial Date and Sets a New Trial Setting Conference Becauseofthe existence of subdivision (c) of Section 583.340, subdivisions (a) and (b) should be interpreted in a waythat only allows for tolling for time periodsthat are completely out of the control oftheplaintiff, and wherethe plaintiff cannot act. Simply put, a holding that would place the order in this case within the ambit ofthetolling provision of Section 583.340(b), as a stay ofthe trial, would have broad and far-reaching consequences that would underminethepolicy ofthe five year statute. In this case, although the order may have technically been suspending certain procedures, the order only does so at the express requestofthe parties because it will assist with the resolution ofthe case. (CT, 252) The recordis clear in this case that the parties requested the order because of their perceived belief that resolving the case would have,in actuality, been moredifficult than without an order. August 27, 2015 Page 6 Toallow an order that the parties perceive as necessary, and even superior, in facilitating the resolutionoftheir case to toll the five year statute underanytolling provision (whetherit be (a), (b), or (c)) would directly contradict the intent and policy of the five year statute. The order itself indicates the following factors that would militate against interpreting the order as a stay oftrial that would qualify fortolling under subdivision (b): e All the parties expressly sought the order and the order would not have been in effect butfor the parties’ agreementto obtain the order; e The parties believed that the order would conserve judicial resources and expedite the resolution ofthe case; e The newly served defendants, Aurora and United, along with the Appellant, believed that the case would be resolved more efficiently without the constraints of discovery and/or Fast Track rules; e The parties agreed that the striking of the trial date was to preserve the defendants’procedural rights in the event the case does not settle. (CT, 252) In light of the existence of subdivision (c) as the more“flexible” tolling subdivision of Section 583.340, to allow the order in this case to be qualified for tolling under subdivision (b)in light of the above factors would indisputably be interpreting subdivision (b) in a mannerthe Legislature neverintended. Thereis a strong case to be madethatin light of the Legislative history of the five year statute and this Court’s strict interpretation of subdivision (b) regarding stays ofproceedings ofthe action in light of the Legislative history, the Legislature never intendedfor tolling under subdivisions(a), (b), or (c) to be placedstrictly within the powerof the litigants. This is especially true for subdivisions(a) and(b). California Appellate Courts have held uniformly that the general underlying policy of the five year statute is the prevention ofavoidable delay in the prosecution of actions. (Sierra Nevada Memorial-Miners Hospital, August 27, 2015 Page 7 Inc. v. Superior Court, 217 Cal.App.3d 464, 472 (1990)) Even if the order in this case could be interpreted as something causing a delay (and Fidelity would arguethat the record clearly establishes that the terms of the order created the exact opposite of a delay), it is beyond dispute that it was avoidable. As mentioned in Fidelity’s Answering Merits Brief, the Trial Court in this case was merely acquiescingto the desire of the litigants in its execution of the order. The language within the order was written by none other than the Appellant, and there is nothing in the record that indicates that the parties could not have simply requested that the Court vacate the order and setthe trial date. For these reasons, Fidelity would respectfully request that this Court attribute the samestrict interpretation of subdivision (b) of Section 583.340 with respect to stays ofthe trial that it does for stays ofthe proceedings in Bruns, and conclude that the order (CT, 279) be interpreted as simply a strategic and desired continuance requested bythe parties to facilitate the resolution ofthe suit. Respectfully Submitted, FIDELITY NATIONAL LAW GROUP Lo 5 Kevin R. Broersma, Attomey for Fidelity National Title Ins. Co., and Bobby Jo Rybicki PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 915 Wilshire Boulevard, Suite 2100, Los Angeles, CA 90017. On August 27, 2015, I served the foregoing document(s) described as: LETTER BRIEF on the interested parties in this action, by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST X__ (BY OVERNIGHT DELIVERY) | delivered to an authorized driver authorized by Overnite Express to receive documents, in an envelope or package designated by Overnite Express with delivery fees paid or provided for, addressed to the person on who it is to be served, at the office address as last given by that person on any documentfiled in the cause and served on the party making service; or at that party’s place of residence. (BY MAIL) I deposited such envelope in an internal collection basket. The envelope was mailed with postage thereon fully prepaid from Los Angeles, California. I am readily familiar with the firm's practice of collection and processing correspondence for 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 of party served, service is presumed invalid if a postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. X (BY ELECTRONIC SERVICE) Pursuant to California Supreme Court’s electronic notification address. Pursuant to Rule 8.212(c)(2), Respondents have submitted an electronic copy of the Letter Brief, which satisfies the service requirement of the California Supreme Court. I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on August 27, 2015, at Los Angeles, Calif e * — Abfamt SERVICE LIST Fannie Marie Gaines v. Joshua Tornberg, et al. California Supreme Court Case No. $215990 Second Appellate Court ofAppeal Case No. B24496] Los Angeles Superior Court Case No. BC 361768 W.Keith Wyatt, Esq. Antonio K. Kizzie, Esq. IVIE, McNEILL & WYATT 444 South FlowerStreet, Suite 1800 Los Angeles, CA 90071 Telephone: (213) 489-0028 Facsimile: (213) 489-0552 Email: wkwyatt@imwlaw.com AKizzie@imwlaw.com Attorneysfor PlaintiffandAppellant FANNIE MARIE GAINES Steven Ray Garcia, Esq. GARCIA LEGAL,a PROFESSIONAL CORPORATION 301 North Lake Avenue, Seventh Floor Pasadena, CA 91101 Telephone: (626) 577-7500 Facsimile: (626) 628-1800 Email: Steven@GarciaLegal.net Attorneyfor Defendants and Respondents AURORA LOANSERVICES LLC, LEHMANBROTHERSHOLDINGS, Supreme Court of California 350 McAllister Street San Francisco, CA 94102 (electronically served) Clerk of the Court of Appeal Second Appellate District, Division 8 Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Clerk of the Court Superior Court of California, County of Los Angeles 111 North Hill Street Los Angeles, CA 90012 A.J. Roop 3424 E. Turney Avenue Phoenix, AZ 85018 Pro Per Ray ManagementGroup,Inc. Craig Johnson, President 6410 W. Maya Way Phoenix, AZ 85083 Pro Per Craig Johnson 6410 W. Maya Way Phoenix, AZ 85083 Pro Per Joshua Tornberg 26065 N. 68th Drive Peoria, AZ 85383 Pro Per Joshua Tornberg6900 E. Princess Drive, Unit 1182Phoenix, AZ 85054-4108 Pro Per
