Atashkar v. Cal. Horse Racing Board CA3

Filed 3/30/15 Atashkar v. Cal. Horse Racing Board 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)

----

MORTEZA ATASHKAR, C074852

Plaintiff and Appellant, (Super. Ct. No.

34-2008-00024426-CL-OE-GDS)

v.

CALIFORNIA HORSE RACING BOARD,

et al.,

Defendants and Respondents.

Plaintiff Morteza Atashkar appeals from an order dismissing his action against

defendant California Horse Racing Board (CHRB) for failure to bring the action to trial

within five years of commencing the action as required by Code of Civil Procedure

section 583.310.1 Contrary to Atashkar’s contentions, we find no error in the trial court’s

dismissal of the action as to defendant CHRB because no statutory exception applies and

Atashkar has not shown that equitable estoppel applies. However, because we conclude

1 Undesignated statutory references are to the Code of Civil Procedure.

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the five-year limitations period has not expired as to defendants Ingrid Fermin, Richard

Bon-Smith and Fred Williams (collectively, individual defendants), we reverse the

judgment of dismissal as to those defendants.

FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2008, Atashkar erroneously filed a claim in the small claims division

of the Sacramento County Superior Court against CHRB alleging he was owed $5,996 in

waiting time penalties because he was not timely paid his final wages. Because the

matter was an appeal from an order of the labor commissioner denying Atashkar’s wage

and hour claim, the court transferred his case to the civil division of the superior court on

July 2, 2008. The small claims documents were received in that division on October 13,

2008 and case No. 34-2008-00244426 was assigned.

On December 5, 2011, Atashkar filed an amended complaint seeking damages and

alleging constructive termination and wage and hour claims against CHRB. That

complaint indicates a department assignment of 39. CHRB demurred to the amended

complaint on February 15, 2012. On July 17, 2012, the trial court struck the amended

complaint on its own motion, dropped CHRB’s demurrer from calendar, ruled that

Atashkar’s claims were limited to those presented to the labor commissioner, and ordered

the matter transferred to department 47 of the civil division, which uniquely hears appeals

of rulings by the labor commissioner.

On August 20, 2012, CHRB filed an ex parte application for an order shortening

time to hear its motion to continue trial from the then scheduled trial date of September 7,

2012, because a material witness would be unavailable. Atashkar consented to continue

trial to September 21, 2012, and the trial court granted the continuance per the parties’

stipulation.

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On September 21, 2012, the matter was assigned to department 30 for trial. The

same day, pursuant to a stipulation between the parties, the court ordered that Atashkar

would have until October 12, 2012, to file a new complaint; CHRB would have until

November 2, 2012, to file a demurrer; the demurrer would be heard on December 7,

2012; and, pending the court’s ruling on the demurrer, the parties would engage in a

settlement conference or set a trial date. The parties thereafter agreed, in four separate

stipulations, to extend the dates to file a first amended complaint, a demurrer or an

answer, and, if needed, to reschedule the hearing on CHRB’s demurrer. Their final

stipulation extended the respective pleading dates to January 25, 2013, and February 25,

2013.

On February 20, 2013, Atashkar filed his first amended complaint alleging failure

to pay overtime wages; failure to reimburse business expenses and waiting time penalties;

defamation; retaliation; and violations of federal and state due process, the federal search

and seizure clause, state privacy rights, and section 1983 of title 42 of the United States

Code. This first amended complaint named not only CHRB but also Fermin, Bon-Smith,

and Williams as defendants in their individual and official capacities.

On April 26, 2013, CHRB moved to dismiss the action pursuant to section

583.360, arguing the action had been filed on April 23, 2008, and had since languished

without Atashkar “taking any action to move it towards trial.” CHRB simultaneously

demurred and moved to strike the first amended complaint on the grounds that it “seeks

to improperly add new defendants.” Atashkar opposed CHRB’s motion to dismiss,

claiming he was reasonably diligent in prosecuting his action, but that it was impossible

and impracticable for him to bring the matter to trial within the five-year limitations

period because the case had been misrouted by the court, the parties had not been notified

with a new hearing date or time, CHRB had acquiesced to a later filing date, and

Atashkar made “continual efforts to determine the status of the case.”

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After oral argument, the trial court affirmed its tentative decision granting

CHRB’s motion to dismiss Atashkar’s action in its entirety. The court found Atashkar

had not been reasonably diligent in prosecuting his action and rejected his assertion that

the trial court’s error in transferring his action among the civil departments rendered it

“impossible, impracticable, or futile” for him to bring his action to trial within five years.

(§ 583.340, subd. (c).) Rather, the court noted it was Atashkar’s burden to prosecute his

action, monitor his case, and bring the trial deadline to the court’s attention and that,

while there may have been some confusion about the case status, Atashkar had not taken

any action to clarify that confusion or to bring the case to trial, such as “bringing a

motion to set the case for trial, a case management conference, or to have the case

transferred to the correct department.” Nor did Atashkar conduct any discovery in the

action, and he was not ready to proceed to trial when it was scheduled to begin in

September 2012. Moreover, the court found CHRB did not waive or implicitly stipulate

to extend the five-year deadline by its inclusion of an “action filed” date on its pleadings

that was based on Atashkar’s amended complaint rather than the original. In light of its

ruling on CHRB’s motion to dismiss, the court dropped CHRB’s demurrer and motion to

strike as moot.2 The court entered a judgment of dismissal of the entire action on

August 7, 2013.

DISCUSSION

Atashkar contends the court dismissed his action in error because (1) the court

lacked jurisdiction over his claim while it was not assigned to the proper division so the

2 Fermin and Williams both joined in CHRB’s demurrer contending they were not

properly added as defendants, and that Atashkar had failed to state a cause of action

against them, failed to comply with the statute of limitations, and failed to exhaust his

administrative remedies. They both appeared at the simultaneous hearing on the motion

to dismiss, demurrer, and motion to strike. Bon-Smith had not yet been served with a

summons.

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trial limitations period should be extended by three years; (2) it was “impossible,

impracticable, or futile” for him to bring the action to trial within three years despite his

reasonable diligence in prosecuting the action because the trial court misdirected the

matter upon the transfer from the small claims division, misled him to believe the matter

was not yet “mature,” and failed to calendar a trial within the five-year period; (3) the

parties stipulated to extend the trial date beyond the trial limitations period; (4) CHRB

misled him to believe it had acquiesced to a later starting date for the calculation of the

trial limitations period and should be equitably estopped from seeking dismissal on that

basis; and (5) even if it was proper to dismiss the action as to CHRB, because the

individual defendants were not named until the first amended complaint (February 20,

2013), the five-year period as to them had not run.

We conclude (1) the Sacramento County Superior Court at all times had

jurisdiction over this matter, regardless of the department or division it was assigned to;

(2) Atashkar was not reasonably diligent in prosecuting his claim and is not entitled to

any extension based on impossibility, impracticability, or futility; (3) there is no evidence

the parties stipulated to extend the trial date beyond the five-year statutory period; and (4)

CHRB’s inclusion of an erroneous date on its pleadings as the “action filed” date does

not preclude it from seeking dismissal of the action pursuant to section 583.360.

Therefore, we affirm the judgment of dismissal as to defendant CHRB. However, we

also conclude (5) that because the five-year limitations period commences when a

complaint is filed against a defendant, it was error for the trial court to dismiss the action

as to the individual defendants.

I. Statutory Extensions, Excuses, and Exceptions

Section 583.310 provides that an “action shall be brought to trial within five years

after the action is commenced against the defendant.” “ ‘ “[T]he purpose of the [five-

year] statute is ‘to prevent avoidable delay for too long a period.’ ” ’ ” (Tamburina v.

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Combined Ins. Co. of America (2007) 147 Cal.App.4th 323, 328 (Tamburina).) Thus, if

the plaintiff fails to meet this five-year deadline, dismissal is mandatory and is “not

subject to extension, excuse, or exception except as expressly provided by statute.”

(§ 583.360, subd. (b).) However, the five-year period is tolled while (a) the jurisdiction

of the court is suspended, (b) the action has been stayed or enjoined, or (c) bringing the

action to trial is impossible, impracticable, or futile. (§ 583.340.) And the period may be

extended by the parties’ written stipulation or oral agreement on the record in open court.

(§ 583.330.)

Here, Atashkar contends the period should be tolled because the court lacked

jurisdiction while the matter waited to be transferred to the correct department of the

superior court and that same delay rendered it impossible, impracticable, or futile for him

to bring the action to trial during the statutory period. He also contends the parties

stipulated to extend the period. We disagree with all these contentions.

A. Jurisdiction

Atashkar claims the trial court should have tolled the trial limitations period,

pursuant to section 583.340, subdivision (a), because it lacked subject matter jurisdiction

over the instant action from the time the matter was transferred from the small claims

division in July 2008 until it was transferred to the department dedicated to hearing de

novo appeals of labor commissioner orders, decisions, and awards in July 2012. This

claim relies on the fallacious theory that each department of the superior court has

separate jurisdiction. Rather, there is but one superior court of each county, and a

transfer among the divisions and departments of that court does not impact the court’s

jurisdiction to hear the matter. (See People v. Dependable Ins. Co. (1988)

204 Cal.App.3d 871, 874; see also § 116.210 [small claims is a division of the superior

court]; Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1483 [“irrespective of the

filing of [the plaintiff’s] complaint in the small claims division of the superior court, it is

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the superior court that had original jurisdiction over the case” and “ ‘[r]eclassification

does not affect the court’s jurisdiction or any prior proceedings in the action’ ”].)

Atashkar has cited no legal authority to the contrary. Therefore, we find no cause to toll

the five-year period based on any suspension of the court’s jurisdiction pursuant to

section 583.340, subdivision (a).

B. Impossibility, Impracticability, or Futility

Atashkar contends that, despite his reasonable diligence, it was impossible or

impracticable for him to bring his case to trial within the five-year time limit because the

trial court clerk misdirected the transfer of his case from small claims such that it was not

assigned to the correct department for more than three years, and because the court failed

to set the case for trial within the five-year period as was its statutory duty. We conclude

Atashkar has failed to demonstrate both his reasonable diligence in moving the case to

trial and any unavoidable circumstance of impracticability or impossibility; therefore, he

is not entitled to tolling under section 583.340, subdivision (c).

A plaintiff seeking to invoke the tolling provision of section 583.340, subdivision

(c) for impossibility or impracticability bears the burden of showing “(1) a circumstance

of impracticability; (2) a causal connection between that circumstance and the plaintiff’s

failure to move the case to trial; and (3) that the plaintiff was reasonably diligent in

moving the case to trial.” (De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th

365, 372, citing Tamburina, supra, 147 Cal.App.4th at pp. 328-329, 333, 336.) Indeed,

the plaintiff must show he has “exercise[d] reasonable diligence at all stages of the

proceedings” and the level of diligence required increases as the five-year deadline

approaches. (Tamburina, supra, 147 Cal.App.4th at pp. 333-334.) Whether the

impossibility exception applies involves a fact-specific inquiry and depends “on the

obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of

reasonable diligence in overcoming those obstacles.” (Howard v. Thrifty Drug &

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Discount Stores (1995) 10 Cal.4th 424, 438.) We do not disturb the trial court’s decision

regarding the applicability of the impossibility exception absent an abuse of discretion.

(Perez v. Grajales (2008) 169 Cal.App.4th 580, 590-591.)

The exercise of reasonable diligence includes a duty “to monitor the case in the

trial court to ascertain whether any filing, scheduling or calendaring errors have occurred.

[Citation.] This is particularly true where the circumstances are such that a party should

reasonably conclude that the court has in fact made some calendaring error. [Citation.]

In that event, the burden must fall upon the plaintiff to act with special diligence to

ensure that the case is set for trial in a timely manner.” (Wilshire Bundy Corp. v.

Auerbach (1991) 228 Cal.App.3d 1280, 1287 (Wilshire).) Indeed, “[b]ecause the

correction of court calendaring errors are matters easily discoverable by the diligent

plaintiff, the courts have refused to recognize such a circumstance as a basis for

concluding that it was either ‘impossible’ or ‘impracticable’ to bring a case to trial.” (Id.

at p. 1288; see Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 994-995

[though not condoning errors of court personnel, holding that “those errors which are

readily ascertainable by the exercise of due diligence by the litigants will not serve to

excuse the litigants from sufficiently monitoring their case in the trial court”].)

In Wilshire, supra, 228 Cal.App.3d 1280, the plaintiffs appealed the dismissal of

their action contending 315 days should have been excluded from the five-year period

because the case had been improperly removed from the civil active list by the court clerk

for that length of time. (Id. at p. 1286.) The court rejected that contention, holding that

“[t]he diligent plaintiff has no need for a tolling period. An available remedy is at hand

to correct calendaring or other errors made by the court or its clerk in the scheduling of a

case. Upon timely discovery of the problem, a motion to specially set may be made and

the court is bound to grant it. [Citations.] In short, this is a matter that is within the

reasonable control of the diligent plaintiff and is thus avoidable.” (Id. at p. 1289.) To

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hold otherwise would undermine the rule requiring the plaintiff to diligently monitor his

case. (Ibid.)

Here, Atashkar erroneously filed his action in the small claims division of the

superior court in April 2008. In July 2008, after the scheduled first hearing on that

matter, the case was transferred to the civil division, where it was misdirected to an

incorrect civil division department due to confusion on the part of the court clerk. For the

next three years, Atashkar checked the court Web site and called the clerk of the court to

ascertain the status of his case but he took no action to pursue his claim, i.e., moving for

any sort of relief from the court or seeking any discovery from any other party. That the

clerk of the court misdirected the case following the transfer from the small claims

division is the same class of error as that described in Wilshire, and it could easily have

been corrected by Atashkar had he been reasonably diligent in monitoring and

prosecuting his action. Moreover, the case was set for trial in September 2012, several

months before the expiration of the five-year time limitation, but plaintiff was not

prepared to proceed to trial at that time, sought and obtained a continuance, and failed to

bring it to trial in the ensuing half a year before the statutory period expired in April

2013. Therefore, we see no causal connection between the court clerk’s calendaring error

and plaintiff’s failure to bring the case to trial within the statutory period.

Also, though we acknowledge the trial court generally has a responsibility to

“[a]ctively monitor, supervise and control” the pace and movement of cases before it

(Gov. Code, § 68607, subd. (a)), we reject Atashkar’s contention that the trial court had a

sua sponte duty to calendar the case for trial within five years. First, as noted above, the

trial court did calendar the case for trial during the five-year time period, but the parties

agreed to continue the trial date. Atashkar failed thereafter to set the case for trial, as he

was obliged to do. (See Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532

[“Reasonable diligence places on a plaintiff the affirmative duty to make every

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reasonable effort to bring a case to trial within five years”]; see also Oberkotter v.

Spreckels (1923) 64 Cal.App.470, 473 [“The established doctrine in this state is that it is

the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to

expedite his case to a final determination. It is true that the defendant may bring about a

trial of the case, but he is under no legal duty to do so”].) Moreover, the case relied upon

by Atashkar to support his contention, Moran v. Superior Court (1983) 35 Cal.3d 229, is

inapposite in that it involves a specific statutory scheme codified at section 1141.20,

subdivision (b) that requires a trial court to calendar a trial de novo following an

arbitration award, which is not relevant here.

C. Stipulation to Extend Trial Date

Atashkar also contends the parties agreed to extend the trial date by five months

during their settlement negotiations. He misinterprets the record. “To serve as an

extension of the five-year period, ‘the stipulation must be written and extend in express

terms the time of trial to a date beyond the five-year period or expressly waive the right

to a dismissal.” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1269,

fn. 3.) Here, the communications between the parties during settlement negotiations

reflect extensions of the deadline to file a first amended complaint and a demurrer or

other responsive pleading to that complaint. These communications are insufficient to

extend the time to bring the case to trial. (Westphal v. Westphal (1943) 61 Cal.App.2d

544, 547 [a stipulation extending a defendant’s time to answer is not a stipulation to

extend the trial deadline]; accord, J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d

666, 670.) There is no evidence in the record of any agreement between the parties to

extend the trial date. Therefore, Atashkar is not entitled to an extension of the trial date

pursuant to section 583.330.

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II. Equitable Estoppel

Atashkar contends that by including an “action filed” date of December 7, 2011,

on its pleadings, CHRB acquiesced to that date and lulled him into a false sense of

security about the five-year deadline, such that it should be equitably estopped from

seeking dismissal of the action based on Atashkar’s failure to comply with the five-year

statutory period. To the extent this contention may be raised for the first time on appeal

(Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 272, fn. 3), we

disagree with it.

“The doctrine of equitable estoppel is applicable to section 583.310 dismissal

motions. [Citations.] If a trial court finds statements or conduct by a defendant which

lulls the plaintiff into a false sense of security resulting in inaction, and there is

reasonable reliance, estoppel must be available to prevent defendant from profiting from

his deception.” (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1341.) “To establish

estoppel, the plaintiff must show: ‘ “(1) The party to be estopped must be apprised of the

facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party

asserting the estoppel had a right to believe it was so intended; (3) the other party must be

ignorant of the true state of facts; and (4) he must [reasonably] rely upon the conduct to

his injury . . . .” ’ ” (Biss v. Bohr (1995) 40 Cal.App.4th 1246, 1252.)

Here, there is no indication Atashkar was “ignorant of the true state of facts” in

that he is the party who filed the initial complaint. Indeed, throughout the course of

litigation, Atashkar frequently acknowledged he filed his action on April 23, 2008.

Moreover, there is no evidence that by erroneously listing the date the action was

filed as December 7, 2011, on its pleadings, CHRB intended Atashkar to rely on that date

in calculating the trial limitations period. Indeed, in many of its pleadings bearing this

erroneous date on the cover, CHRB referred to the correct filing date in the text of the

pleading itself. It even reverted to including the erroneous date on the cover page of the

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“Order After Hearing and Judgment of Dismissal” it submitted to the court for signature

and on its notice of entry of that order. Though we encourage counsel for CHRB to

exercise greater care in reviewing its pleadings for accuracy, we cannot find it was

reasonable for Atashkar to rely on this error in believing the initiation of the trial

limitations period had altered either pursuant to an agreement between the parties or

otherwise. Accordingly, we conclude equitable estoppel does not apply to prevent CHRB

from seeking dismissal of the action based on Atashkar’s failure to bring the case to trial

during the statutory trial limitations period.

III. Individual Defendants

Atashkar contends that even if dismissal was proper as to defendant CHRB, it was

not appropriate as to the individual defendants because they were not named as

defendants until February 21, 2013.3 We agree; therefore, we reverse the judgment of

dismissal as to the individual defendants.

Former section 583 had been interpreted consistently to mean that the five-year

period commenced on the filing of the original complaint, regardless of any new cause of

action or party being added in an amended complaint. (Gray v. Firthe (1987)

194 Cal.App.3d 202, 207.) However, in Gray, we interpreted section 583.310 to reflect

an intended change in the law by the Legislature such that the commencement of the

limitations period began not with the filing of the original complaint but with the

commencement of an action against any given defendant. (Gray, at pp. 208-209.) Thus,

“[a]s to a defendant either expressly named in the original complaint, or named in the

3 CHRB contends dismissal was proper as to the individual defendants because they

were not properly joined as parties. The individual defendants may not have been

properly joined, but the trial court did not make that finding in granting CHRB’s motion

to dismiss and it did not rule on CHRB’s demurrer or motion to strike which raised that

issue. Therefore, that issue is not properly before us.

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original complaint by a fictitious name, the action commences on the date of the filing of

the complaint. [Citation.] But when a new party is added to the action, the action

commences as to that party on the date of the order adding him or her as a party or on the

date of filing of the pleading naming him or her as a new party.” (Id. at p. 209.)

Here, the individual defendants were not named either expressly or as “Does” in

the original or amended complaint. Indeed, they were not named until Atashkar’s first

amended complaint, which was filed on February 21, 2013. Thus, the statutory period to

bring the action to trial as to those individual defendants had not expired when the trial

court granted CHRB’s motion to dismiss the action. Accordingly, it was error for the

trial court to dismiss the action as to these individual defendants.

DISPOSITION

The judgment of dismissal is affirmed as to defendant CHRB. The judgment of

dismissal is reversed as to defendants Fermin, Bon-Smith, and Williams. Each party

shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

BUTZ , J.

We concur:

BLEASE , Acting P. J.

HULL , J.

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