Filed 10/30/18 Naghash v. Richards CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
| ASHLEY M. NAGHASH,
Plaintiff and Appellant,
v.
TERRY RICHARDS,
Defendant and Respondent.
| C084640
(Super. Ct. No. 34201100113923CUPOGDS)
|
Ashley M. Naghash appeals from the trial court’s entry of judgment dismissing her complaint as to defendant Terry Richards for failure to bring her action to trial within five years as required by Code of Civil Procedure section 583.310.[1] Because she has demonstrated no error in the trial court’s decision, we affirm the judgment.
I. BACKGROUND
On November 14, 2011, Naghash filed this action against Richards and other defendants, including the Board of Trustees of the California State University; the State of California; the California State University; California State University, Sacramento (CSUS); Alexander Gonzalez, then president of CSUS; and Michael Speros, then “director of Housing and Residential Life at CSU” and CSUS (collectively, the University defendants).[2] The causes of action framed by the complaint related, in part, to allegations that plaintiff was sexually assaulted and raped by Richards in a CSUS dormitory.
On May 31, 2013, Naghash filed a request for entry of default against Richards, and a default was entered the same day.
On September 23, 2013, Richards filed his first motion to set aside the default and default judgment (if any) on the basis of improper service. On June 6, 2014, the trial court granted Richards’ second motion, and set aside the default. The ruling noted that a default judgment had not yet been entered against Richards.
Meanwhile, on November 13, 2013, Naghash appealed the trial court’s judgment of dismissal as to the University defendants after an order sustaining a demurrer as to those defendants.
On July 11, 2016, Naghash filed a motion to stay the action and toll the five-year period pending the appeal. Before the trial court heard the matter, we had affirmed the judgment dismissing the University defendants in Naghash v. Board of Trustees (July 29, 2016, C075207) [nonpub. opn.]. The trial court granted a stay for 30 days from the date of our decision until August 29, 2016. On October 27, 2016, we issued the remittitur.
On December 1, 2016, Naghash filed a motion to schedule a case management conference and a trial setting. On December 21, 2016, the trial court issued a tentative ruling granting the motion. The record on appeal contains nothing further on this motion.
On January 11, 2017, Richards moved to dismiss the action for failure to bring it to trial by December 14, 2016 (five years plus the 30 day stay). In opposition, Naghash raised two arguments: (1) the five-year period under section 583.310 does not begin until the summons and complaint are served on the defendant and (2) the period was tolled during her appeal against the University defendants because, “ased on [the] one judgment rule,” “it would have been futile to piecemeal the action and seek trial and separate judgment against each individual defendant.”[3]
The trial court granted Richards’ motion. The court began by stating that it “need not consider the opposition’s claim that defendant Richards ‘actively evaded service of summons’ from December 2012 through February 2013 since the objections to the evidence cited as support have been sustained.” Regardless, any delay in service of the complaint or defendant’s answer was not germaine to the question of when the five-year period began to run because the period commences upon the filing of the complaint. The court explained that section 583.340 provides the only bases for tolling the five-year period, and Naghash’s tolling argument relied solely on subdivision (c), which applies when bringing an action to trial is impossible, impracticable or futile. The court found that Naghash had “fallen far short of her burden to avoid dismissal under the mandatory provisions of [section] 583.310. [¶] First, [Naghash] has in support of her opposition included no evidence whatsoever that tends to demonstrate how or why it would have been impossible, impracticable or futile to proceed to trial against defendant Richards while she simultaneously appealed CSU’s judgment of dismissal. Therefore, [Naghash] failed to carry her burden of providing ‘clear and convincing proof’ of impossibility, impracticability, or futility. [¶] Second, aside from this glaring lack of evidence, this Court can find no theoretical merit to [Naghash]’s conclusory claim of impossibility, impracticability or futility in timely bringing to trial her claims against defendant Richards for sexual assault and battery. After all, although the claims against CSU would necessitate proof of the rape allegedly committed by defendant Richards, the opposite is not true. The claims against defendant Richards are in no way dependent on the outcome of the claims against CSU but are instead totally separate and distinct.” Lastly, the court explained that the “one judgment rule” did not operate as a bar to Naghash proceeding to trial with her claims against Richards while her appeal was pending.
The trial court entered a judgment of dismissal as to Richards on March 6, 2017. Naghash timely appealed.
[b]II. DISCUSSION
A. Standard of Review
“An action shall be brought to trial within five years after the action is commenced against the defendant.” (§ 583.310.) An action that is not brought within this time must be dismissed. (§ 583.360, subd. (a).) However, “[i]n computing the time within which an action must be brought to trial . . . , there shall be excluded the time during which any of the following conditions existed: [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial . . . was impossible, impracticable, or futile.” (§ 583.340.)
“[T]he trial court must determine what is impossible, impracticable, or futile ‘in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.’ ” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730-731.)
“The question of impossibility, impracticability, or futility is best resolved by the trial court, which ‘is in the most advantageous position to evaluate these diverse factual matters in the first instance.’ [Citation.] The plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340[, subdivision] (c) exception. . . . The trial court has discretion to determine whether that exception applies, and its decision will be upheld unless the plaintiff has proved that the trial court abused its discretion.” (Bruns v. E–Commerce Exchange, Inc., supra, 51 Cal.4th at p. 731.) “Under that standard, ‘[t]he trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (Gaines v. Fidelity Nat. Title Ins. Co. (2016) 62 Cal.4th 1081, 1100.)
B. Alleged Evasion of Service
Naghash argues the time during which Richards was not amenable to service or actively evaded service should be excluded from the five-year period. “Lack of amenability to process is not an excuse under the current 5-year statute.” (6 Wikin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 407, p. 852.) As to evasion of service, as Richards notes, Naghash’s opening brief does not cite to any evidence that she submitted to the trial court in connection with her opposition to his motion to dismiss. Naghash sought to augment the record when she filed her reply brief, but this cannot cure the issue because any arguments raised or only supported by authority on reply have been waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) Regardless, the trial court explained that it sustained objections to the evidence submitted in support of this claim. Naghash raises no argument on appeal that the objections were improperly sustained. As such, Naghash has failed to demonstrate any error with respect to the trial court’s ruling on this issue.
C. Entry of Default
Naghash contends the five-year period should have been tolled from the date a default judgment was entered against Richards until the date Richards obtained relief from default. As a threshold matter, no default judgment was entered. Moreover, in the trial court, Naghash did not raise this argument. “It is elementary that an appellant may not raise a new theory on appeal when the theory rests on facts that were either controverted or not fully developed in the trial court. [Citation.] This rule of waiver specifically applies to fact-based tolling arguments.” (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 330.) “The determination whether it was ‘impossible, impracticable, or futile’ to bring a case to trial within a given time period is generally fact specific, depending on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of reasonable diligence in overcoming those obstacles. [Citation.] Nonetheless, there are some circumstances in which it can be said almost invariably that the exception applies. Such is the case when a default judgment has been entered in favor of the plaintiff, effectively bringing the litigation to a standstill.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.) The entry of a default alone is different: “[C]ourts have held that a reasonable period of time between the defendant’s default and the entry of the default judgment should also be excluded from the calculation of the five-year period.” (Id. at pp. 438-439, italics added.) Naghash has waived any argument that the period of default should be excluded from the five-year period by failing to raise this fact-based argument in the trial court.
D. Waiver
Naghash now asserts Richards waived any objection to her failure to bring the action to trial within five years by not objecting to her motion to set the matter for trial. Whether a waiver has occurred is also usually a factual question. (Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 476.) “ ‘ “[W]aiver” means the intentional relinquishment or abandonment of a known right.’ [Citations.] Waiver requires an existing right, the waiving party’s knowledge of that right, and the party’s ‘actual intention to relinquish the right.’ [Citation.] ‘ “Waiver always rests upon intent.” ’ [Citation.] The intention may be express, based on the waiving party’s words, or implied, based on conduct that is ‘ “so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” ’ ” (Id. at p. 475.) Again, Naghash’s claim fails because it was not raised in the trial court. (Tanguilig v. Neiman Marcus Group, Inc., supra, 22 Cal.App.5th at p. 330; see also Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422 [“It is settled that points not raised in the trial court will not be considered on appeal”].)
E. Appeal
Naghash contends the pendency of her previous appeal made it impracticable for her to proceed to trial even though the action was not stayed at that time.
Richards was not a party to the prior appeal, and a plaintiff is not relieved from proceeding against one defendant merely because an action could not be brought to trial against another defendant during an appeal. (Arnold v. State of California (1969) 273 Cal.App.2d 575, 585.) Our Supreme Court has explained that where a plaintiff could have severed his causes of action and proceeded separately against a co-defendant, the trial court must “examine the relationships between the causes of action, the expense and difficulty likely to be engendered by separate trials, the diligence and good faith efforts of the plaintiff, the prejudice or hardship to the instant defendants, or other relevant matters” to determine whether it was nonetheless impracticable or futile for the plaintiff to proceed to trial against the co-defendant within the statutory period. (Brunzell Construction Co. v. Wagner (1970) 2 Cal.3d 545, 555 (Brunzell).)
Naghash does not cite Brunzell or meaningfully engage in this analysis. She alleges without citation that there are “common underlying allegations of liability, damages, and causation.” “ ‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’ [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived.” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Moreover, “[w]e are not required to examine undeveloped claims or to supply arguments for the litigants.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Naghash further asserts she could not have proceeded to trial against Richards during the pendency of the appeal because “that would have subjected [her] to multiple and different trials, multiple and different judgments and different and possibly contradictory results. If the court of appeal would have reversed the First Appeal, then [Naghash] would have to submit her claim to two (2) different jur[ies] or trier[s] of fact, and potentially obtain two (2) different results with two (2) different judgment[s].” (Italics added.) The possibility of two judgments alone is insufficient under Brunzell. All of this is still more detail than she gave the trial court. There, she argued only that because of the “one judgment rule,” “it would have been futile to piecemeal the action and seek trial and separate judgment against each individual defendant.” The trial court noted that her claim was conclusory, and correctly explained that the one final judgment rule does not prohibit separate judgments against different defendants. (Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, 60.) Rather, it prohibits “appealing from partial dispositions while other unresolved matters remain pending against other parties.” (Id. at p. 61.) Naghash has not demonstrated that the trial court wrongly applied the law or otherwise abused its discretion when it dismissed her case against Richards. Accordingly, we affirm the judgment dismissing Naghash’s action against Richards.
III. DISPOSITION
The judgment is affirmed. Respondent Terry Richards shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MAURO, J.
[1] Undesignated statutory references are to the Code of Civil Procedure.
[2] The most recent complaint names four other individual defendants, three of whom were then students at CSUS. It is unclear from the record before us to what extent these individual defendants were ever properly served or remain in the action.
[3] On July 23, 2018, Naghash filed a motion to augment the record to include these opposition papers. By an August 1, 2018, order, we deferred ruling on the motion, which we now grant.
