GAINES v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

Respondents, Fidelity National Title Insurance Company and Bobby Jo Rybicki, Supplemental Reply Brief

Cal.September 18, 2015

Fidelity National Law Group SUPREME COURT COPY 915 Wilshire Boulevard, Suite 2100 Los Angeles, California 90017 Kevin R. Broersma, Esq. Vice President, Trial Counsel, Southwest Region Direct: (213) 438-7207 Fax: (213) 438-4417 E-Mail: Kevin.Broersma@fnf.com SUPREME COURT September 17, 2015 VIA OVERNIGHT DELIVERY SEP 18 2015 Attn: Clerk of the Court . California Supreme Court Frank A. McGuire Clerk Office of the Clerk, First Floor Deputy 350 McAllister Street San Francisco, CA 94102 Re: Reply to Letter Brief - Fannie Marie Gainesv. Fidelity National Title Insurance Co., et al, (S215990) Dear Chief Justice Cantil-Sakauye, Fidelity National Title Insurance Co. and Bobby Jo Rybicki (“Fidelity”) submit this letter in reply to the Appellant’s letter brief ofAugust 28, 2015. The Appellant’s letter brief is entirely based upon one case, Hollandv. Dave Altman’s R.V. Center, 222 Cal.App.3d 477 (1990). The Holland case, as explained below,is not only distinguishable from this case;it actually supports the Appellee’s position. 1. The Holland Case Supports the Appellee’s Position Because the Purpose and Scopeof the Orderin This Case was to More Efficiently Resolve the Case and the Order Did Not Cause Unavoidable Delay In Holland, the Court ofAppeal looked at the exclusion oftime underthe five year statute while an appeal was pending on the issue of service of a defendant whoresided out of the county. A motion to quash had been brought by the main defendantin that personal injury action and that motion September 16, 2015 Page 2 was eranted, and the granting ofthe motion was appealed to the California Court ofAppeal. The appeal was pending from Decemberof 1986 until Marchof 1988. During the pendencyofthe appeal, the plaintiff/appellant broughtan ex parte application to continueall dates related to the trial, and thetrial itself. The trial court entered the order and vacatedthe trial pending resolution ofthe appeal. After the granting of a five year motion to dismiss, the plaintiff appealed the dismissal, and the Court ofAppeal reversed, holding that the time during which the appeal was pending should have been tolled under Sections 583.340(b) and (c). Theseletter briefs only concern Section 583.340(b). Althoughthe order in Holland was technically the vehicle by which thetrial court issued the stay, the Court of Appeal acknowledged that it was “inartfully drafted.” “On January 26, 1987, appellant brought a motionfor ex parte reliefbefore the [trial] court. The motion wasinartfully titled, “Ex Parte Motionfor Continuance ofDefendant's Motionfor Summary Judgment, Trial Date, Mandatory Settlement Conference, andDemandfor DesignationofExpert Witnesses.” (Id. At 481) [Emphasis added] Thetrial court in Holland wenton to execute the order, which was drafted by the attorney who submitted it, and which contained the languagethatthetrial was being continued. In Holland, the order in question contained ostensible language that was more consistent with a continuance as opposed to a stay. However, the Court of Appeal looked at the purpose ofthe order, and determinedthatit fit neatly within the definition of a stay that would meet the requirements of Section 583.340(b) because, although the order used continuance language, the effect and purpose ofthe order wasto staythetrial until a determination in the underlying appeal. This case presents the exact opposite scenario: the orderitselfuses the words “stay” and “strike,” but the effect and purpose of the order belies such language. This is the same reasoning in Holland and the reason why Holland, if anything, supports the Appellees. The effect and purpose ofthe order in this case was clearlyto assist in facilitation of the resolution of the September 16, 2015 Page 3 action at the express requestofthe parties who, at the time at least, believed that the case would be moreefficiently resolved byrelaxing the constraints tied to the thentrial date. In contrast, in Holland, the order in question “continued”the trial date until a determination ofthe underlying appeal regarding the granting of a motion to quashservice against the main defendant in the action. As the Court of Appeal alludedto underits analysis of Section 583.340(c), the pending appeal against the main defendantrelated to service essentially brought the underlying personal injury suit to a halt, and to move forward against other defendants would be highly duplicative andinefficient. This analysis is relevant in making a determination under Section 583.340(b) as well, becauseit is useful in determining theintent ofthe order in question. In Holland, the case could not go forward to trial while an issue was pending in the Court ofAppeal that would determine whether the main defendant was properlyserved. This, in combination with thetrial court's notationsthat the trial was vacated pending appeal makeit clear that the intent ofthe order was stayofthe action that would toll the five year statute. Furthermore, the parties in Holland had no control over the length oftime the trial would be continued. The trial court did not set a newtrial setting conference date; it noted that trial would be reset, “after ruling ofappellate court.” (Jd. at482) Therefore, the setting of a newtrial date was wholly dependent uponthe ruling of another court undera different jurisdiction. To call the order in Holland a continuance would work an injustice against plaintiffs in California and would encourage a policy directly contraryto the policy ofthe five year statute: avoidable delay. A pending appeal on an essential issue, such as whether the main defendant was ever properly served with the suit, would be a decidedly wnavoidable delay. In fact, the plaintiff could literally not move forward against that defendant becausethetrial court had granted the underlying motion to quash. Here, in stark contrast, every element ofthe order, includingits origination, purpose and even its end (had termination ofthe order been sought) was completelywithin the controlofthe parties, and the order itself placed no involuntary burdens on theparties in resolution ofthe case. To the contrary; it facilitated resolution of the case by the Appellant’s own admission. In pointof fact, Holland is not only distinguishable; it actually supports the Appellees’ position, because the case merely stands for the proposition that September 16, 2015 Page 4 the intent of the order is paramountto the language within the order in determining whethera stay occurred within the scope of Section 583.340. In the Appellant's letter brief, the Appellant misapplies Holland by arguing: “Applying the reasoning expressed in the Holland and Santana decisions, it is clear that the trial court in the instant case stayedthe trial... The trial court's order temporarily suspendedall litigation activities, including the trial datefor 120 days to allowtheparties to attempt resolution ofthe case by mediation proceedings. The trial date was not continued to a later date at which time it automatically resumed. No newtrial date was scheduled.” [Emphasis added] Thefirst problem with Appellant’s analysis here is that the trial court did not suspend all litigation. As has already been argued, pending discovery was allowed to be completed, which, as the Court ofAppeal held, alone was enough to call this stay partial with respect to whether the proceedings were stayed. More importantly, however, the very purpose of the order was to effectuate litigation, through mediation. No doubt the parties used then existing discovery. depositions and legal arguments to bolster their respective positions in attempting to resolve the case through mediation. Appellant also states that the trial date was not continuedto a later date. That may technicallybe true, but the date was not vacated pending the happening of some event ofwhich Appellant had no control; the Tria] Court set a post mediation status conference for July 16, 2008, and, more importantly, ordered the parties to participate in good faith in mediation. (CT, 279) The Appellant admits the order was entered to assist in resolution of the case. Theorderin this case is nothing like the order in Holland. Not only was the plaintiff there completely precluded from anyform oflitigation while the motion to quash was before the Court of Appeal. but hadtheplaintiff sought a reversal ofthetrial court’s order, it would have declined because the case could not proceed whereservice on the main defendant wasstill an issue to be decided in another court. September 17, 2015 Page 5 2. Conclusion Appellant and Fidelity have come to fundamentally contradictory conclusions in looking at the Holland case. If anything, the ostensible languageofthe orderin this case favors the Appellant, but its practical effect flows in favor of the Appellees. The Holland case only supports the conclusion that the nature and purpose of the order supersedes the order’s language. Appellant argues the exact opposite in the letter brief. The order in this case, however, was not entered due to the appeal of a defendant on an issue that, by necessity, had to be decided before trial could proceed. The order here was requested bythe parties based upon their perception at the time that they would moreefficiently litigate and resolve the case with the order than without. Asstated in Fidelity’s letter brief, to qualify the order in this case as an ordertolling the five year statute under Section 583.340(b) as a stay oftrial would be contrary to the Bruns decision on the issues of stays of the proceedings, and would be contrary to the purpose and intent of the five year statute as a whole. Respectfully Submitted, FIDELITY NATIONAL LAW GROUP Kevin R. Broersma, Attorney 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 September 17, 2015 I served the foregoing document(s) described as: REPLY TO 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) I 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 makingservice; 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 dayin 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 day after 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 andcorrect. Executed on September17, 2015 at Los Angeles, California. A-/C- Agbi Abrami SERVICE Fannie Marie Gaines v. Joshua Tornberg,et al. California Supreme Court Case No. S215990 Second Appellate Court ofAppeal Case No. B244961 Los Angeles Superior Court Case No. BC 361768 W.Keith Wyatt, Esq. Antonio K. Kizzie, Esq. IVIE, McNEILL & WYATT 444 South Flower Street, Suite 1800 Los Angeles, CA 90071 Telephone: (213).489-0028 Facsimile: (213) 489-0552 Email: wkwyatt@imwlaw.com AKizzie@imwlaw.com Attorneysfor Plaintiff andAppellant FANNIEMARIE GAINES Steven Ray Garcia, Esq. GARCIA LEGAL,a PROFESSIONAL CORPORATION 234 East Colorado Boulevard, 8" Floor Pasadena, CA 91101 Telephone: (626) 577-7500 Facsimile: (626) 628-1800 Email: Steven@GarciaLegal.Email Attorneyfor Defendants andRespondents AURORA LOANSERVICESLLC, LEHMANBROTHERSHOLDINGS, Supreme Court of California 350 McAllister Street San Francisco, CA 94102 (served electronically and overnight delivery) Clerk of the Court ofAppeal SecondAppellate 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 Joshua Tornber. 26065 N. 68th Drive Peoria, AZ 85383 Pro Per Joshua Tornberg 6900 E. Princess Drive, Unit 1182 Phoenix, AZ 85054 Pro Per