# Brown v. Mortensen CA2/1

> California Court of Appeal · October 26, 2023

URL: https://www.frixlaw.com/law-library/cases/9893399

## Case

- **Court:** California Court of Appeal
- **Decided:** October 26, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 10/26/23 Brown v. Mortensen CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

ROBERT A. BROWN et al., B318640

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC289546)
v.

STEWART MORTENSEN,

Defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Affirmed.
Law Offices of Lyle F. Middleton and Lyle F. Middleton;
Law Offices of Robert A. Brown and Robert A. Brown for
Plaintiffs and Appellants.
Dentons US and Steven A. Watkins for Defendant and
Respondent.
__________________________________
Appellant Robert A. Brown and his daughters, appellants
Kirsten Brown and Kayla Brown, appeal from the court’s
dismissal of their lawsuit against respondent Stewart Mortensen,
first filed over 20 years ago in January 2003. This case was last
before this court in 2019; we reversed the trial court’s judgment
and a remittitur was filed in March 2019. In December 2021, the
trial court dismissed the Browns’ case under Code of Civil
Procedure section 583.420, subdivision (a)(3)(C), permitting the
discretionary dismissal of a case that is not brought to trial
within two years of the judgment being reversed and the
remittitur being filed.1
According to the record below, Mortensen has suffered from
dementia since September 2020 and is incapable of making legal
decisions. Additionally, the Browns claim that the court
continued their trial date several times from March 2020 to
September 2021 due to COVID-19. Therefore, on appeal, the
Browns contend the court erred in calculating that two years had
elapsed since the remittitur was filed because it was required to
exclude from its calculation: (a) the period between September
2020 and November 2021, when the court appointed a guardian
ad litem for Mortensen, because the court lacked jurisdiction
during that time; and (b) the period between March 2020 and
September 2021. We conclude that: (a) the court never lost
jurisdiction; and (b) the Browns are not entitled to exclude any
time period in which trial was continued for COVID-19 because
they failed to demonstrate both that those continuances affected

1 Undesignated statutory references are to the Code of Civil

Procedure.

2
their trial preparation and that they had exercised reasonable
diligence in proceeding to trial. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

A. Background
In January 2003, the Browns filed a complaint against
Mortensen and others for allegedly disclosing the Browns’
confidential medical information in violation of the
Confidentiality of Medical Information Act. Neither the initial
complaint nor any of its later iterations are part of the record on
appeal but, according to opinions we have issued in the Browns’
previous appeals, the gist of their complaint seems to be that
Mortensen, a debt collector, disclosed information contained in
the Browns’ dental charts while trying to collect on a debt
allegedly owed by Robert Brown to some dentists.
For the past two decades, this case has traveled through
the various tiers of our court system. The case was last before us
in 2019—we reversed the judgment and the trial court clerk filed
a remittitur on March 5, 2019.3

B. Trial Dates Continued After Remittitur
On March 14, 2019, the court set a jury trial for September
30, 2019. On September 13, 2019, the parties stipulated to
continue trial to March 2020 for two reasons: (1) Robert Brown
(an attorney) had a trial set for September 16, 2019, and then
another for September 30, 2019; and (2) Mortensen was “not

2 We limit our summary to the facts and procedural history

relevant to the issues raised on appeal.
3 The details of that appeal are not pertinent to this appeal.

3
presently available for trial due to an expected protracted
confidential medical condition.” The court continued trial to
March 16, 2020, and set a final status conference for March 5,
2020.
At the final status conference, a request was made to
continue trial—the record does not disclose who made the
request—and the court continued the final status conference to
April 6, 2020. Four days later, the court, on its own motion, also
continued trial to April 6.
On March 18, 2020, on its own motion, the court continued
trial to May 1, 2020, due to the COVID-19 pandemic. On March
26, 2020, again due to the pandemic, the court continued trial on
its own motion to August 17, 2020.
On July 10, 2020, the Presiding Judge of the Los Angeles
Superior Court issued a general order providing that: “All Civil
jury trials, including Unlawful Detainer trials, scheduled from
July 10, 2020 to August 8, 2020, inclusive, are continued” and
that, excepting unlawful detainer trials, “the Court will not set
any Civil jury trials to commence before January 2021.” (Super.
Ct. L.A. County, Gen. Order No. 2020-GEN-019-00 (July 10,
2020), p. 6, lns. 7–15, emphasis in original.)
On August 6, 2020, the court issued a minute order stating
that it was “in receipt of a Stipulation to Vacate Trial Date and
Set Date for Trial Setting Conference” and “[p]ursuant to [the]
written stipulation,” the court was vacating the August 17, 2020
trial date and setting a trial setting conference for March 24,
2021.4

4 Although the stipulation is not in the record, the case

register indicates such a stipulation was filed on August 3, 2020.

4
On August 10, 2020, the Presiding Judge of the Los
Angeles Superior Court issued a general order providing that:
“All unlimited and limited Civil jury trials . . . scheduled from
August 10, 2020 to September 8, 2020, inclusive, are
continued until further notice” and that, excepting unlawful
detainer trials, “the Court will not set any Civil jury trials to
commence before January 2021.” (Super. Ct. L.A. County, Gen.
Order No. 2020-GEN-020-00 (August 10, 2020), p. 10, lns. 4–12,
emphasis in original.) On October 9, 2020, the Presiding Judge of
the Los Angeles Superior Court issued a general order providing
that: “All non-preference civil jury trials may commence on or
after January 4, 2021.” (Super. Ct. L.A. County, Gen. Order No.
2020-GEN-023-00 (October 9, 2020), p. 10, ln. 4.)
On March 24, 2021, after the parties discussed the status of
the case with the court, the court set trial for September 20,
2021.
In or around August 2021, Mortensen apparently filed an
ex parte application to continue trial.5 In a response, the Browns
conditionally agreed to a “brief continuance of trial” if Mortensen
would submit a “Capacity Declaration” and if “some person who
meets the . . . qualifications of Code of Civil [Procedure] §372 will
soon file a Petition For Conservatorship or Guardian Ad Litem.”
The Browns added that Robert Brown was scheduled for surgery
on September 14, 2021, and would be unavailable for a jury trial
on September 20, 2021, and that he was trying to postpone his
surgery until after he received a COVID-19 booster vaccine.

5 The ex parte application is not in the record, nor is there

an entry for it in the superior court case register included in the
record. In the Browns’ response, they described the application
as “represent[ing] to the court that [Mortensen] lacks capacity.”

5
C. The Court Asks Why the Case Should Not Be
Dismissed for Failure to Prosecute
The court granted Mortensen’s application in part, vacating
the trial date and setting a trial setting conference for September
17, 2021. The court also scheduled for November 21, 2021, an
order to show cause on why the case should not be dismissed for
failure to prosecute.
On September 17, 2021, the court ordered Mortensen’s
counsel to file by October 18, 2021, an application for
appointment of a guardian ad litem or, alternatively, that the
parties stipulate by November 1, 2021, to the appointment of
Mortensen’s wife as his guardian ad litem. The court continued
the trial setting conference and the OSC re dismissal to
December 7, 2021.
On October 22, 2021, Mortensen filed a brief in response to
the court’s order to show cause. He claimed that his dementia-
induced incapacity was irrelevant to the Browns’ lack of
prosecution because the incapacity was easily remedied by an
application for a guardian ad litem, as filed by Mortensen’s wife a
week prior.6 Mortensen further added that the Browns had been
aware of his condition since September 2019. Supporting this
brief was a declaration from Mortensen’s attorney attaching,
among other documents: (1) a September 14, 2020 letter from
Mortensen’s doctor, stating he suffered from dementia and was
no longer able to make decisions on legal matters; and (2)
correspondence between Mortensen’s attorney and Brown in
September 2019, and in February 2020. The September 2019
correspondence included a statement from Mortensen’s attorney

6 The court granted the application on November 9, 2021.

6
that Mortensen had undergone brain surgery in June 2018 and
“his memory is now intermittent and [he] will not be able to
handle the travel and attendance at trial,” and a statement that
Mortensen’s attorney “wish[ed] to read his prior trial testimony
into the record.” In response, Brown tersely replied: “Attached:
Stip Continue Trial.” Mortensen’s counsel elaborated in his
declaration that Brown’s response “was only that they needed to
continue trial anyway and did not want to address the
unavailability issue at this time.”7 In February 2020,
Mortensen’s counsel again communicated to Robert Brown that
they needed to “discuss the upcoming trial, including the
unavailability of Stuart [sic] Mortensen.” The record does not
disclose what reply was made, if any.
On November 22, 2021, the Browns filed their own brief in
response to the court’s OSC. They claimed that “[t]he time period
from March 9, 2020 until September 20, 2021 is not included in
any period of time to bring the case to trial because this period
was the product of successive court orders continuing trial based
on COVID.” They contended additionally that “the court has
lacked personal jurisdiction of defendant, Stewart Mortensen,
since at least September 14, 2020, i.e., the date by which
[Mortensen’s doctor] expressly stated that Stewart Mortensen
‘has dementia and is no longer able to make decisions on . . . legal
matters.’ ” Therefore, they concluded, “[t]he record in this case is
that, except for about a six month period from March 5, 2019
until September 12, 2019, there is no time that would be included

7 As discussed above, the stipulation filed two days later

stated that the Browns needed to continue trial because Robert
Brown was set to commence trial on both September 16, 2019,
and on September 30, 2019.

7
for purposes of discretionary dismissal.” On December 1, 2021,
Mortensen filed a response, reiterating his previous arguments.

D. The Trial Court Dismisses the Case
On December 7, 2021, the court dismissed the case “for
failure to prosecute pursuant to Code Civ. Proc., §§ 583.410(a)
and 583.420(a)(3)(C).” The court found it was the Browns’ burden
to justify their delay in bringing the case to trial and faulted
them for failing to “file any accompanying declarations or submit
any admissible evidence in support of their opposition. Nor did
Plaintiffs request judicial notice of any relevant facts. As such,
Plaintiffs have not met their burden of justifying their delay in
bringing their action to trial.”
The court then considered the “relevant [California Rules of
Court] Rule 3.1342(e) factors”—the court considered subdivisions
(e)(1), (e)(5), (e)(6), (e)(7), (e)(8), (e)(9), and (e)(10)—and concluded
they all favored dismissal.8 As to the Browns’ argument that

8 California Rules of Court rule 3.1342 is entitled “Motion

to dismiss for delay in prosecution.” Subdivision (e) provides that
“In ruling on the motion, the court must consider all matters
relevant to a proper determination of the motion, including: [¶]
(1) The court’s file in the case and the declarations and
supporting data submitted by the parties and, where applicable,
the availability of the moving party and other essential parties
for service of process; [¶] (2) The diligence in seeking to effect
service of process; [¶] (3) The extent to which the parties engaged
in any settlement negotiations or discussions; [¶] (4) The
diligence of the parties in pursuing discovery or other pretrial
proceedings, including any extraordinary relief sought by either
party; [¶] (5) The nature and complexity of the case; [¶] (6) The
law applicable to the case, including the pendency of other
litigation under a common set of facts or determinative of the
(Fn. is continued on the next page.)

8
delays were caused by COVID-19, citing the Presiding Judge’s
October 9, 2020 general order, the trial court noted that “jury
trials in civil matters were permitted as early as January 2021.”
As to their argument that the court lacked jurisdiction over
Mortensen due to his incapacity, the court found the Browns had
been aware of Mortensen’s condition since September 2019 and
did nothing to address it; the court noted the problem was “easily
cured by appointing a guardian ad litem, which this Court
eventually did on November 9, 2021.” The court also noted that,
due to a bankruptcy filed by Mortensen, the Browns were
permitted “to proceed against available insurance only, and not
against Defendant’s personal assets” and “Defendant represents
that the insurance policy has been exhausted.” Finally, the court
noted Mortensen’s inability to testify and concluded that “Given
the limited recovery available to Plaintiffs, Defendant’s
incapacity, the fading recollections of any percipient witnesses,
and for all the other reasons stated herein [i.e., that the Browns
had failed to submit any evidence to support their opposition;
that the Rule 3.1342(e) factors favored dismissal; and that the
Browns did nothing to bring their case to trial despite the fact
that COVID-19 only delayed civil trials until January 2021 and
despite the fact that the Browns knew about Mortensen’s
incapacity since September 2019], the Court finds that a trial

legal or factual issues in the case; [¶] (7) The nature of any
extensions of time or other delay attributable to either party; [¶]
(8) The condition of the court’s calendar and the availability of
an earlier trial date if the matter was ready for trial; [¶] (9)
Whether the interests of justice are best served by dismissal or
trial of the case; and [¶] (10) Any other fact or circumstance
relevant to a fair determination of the issue.”

9
would not serve the interests of justice.” The court therefore
dismissed the case for failure to prosecute. The Browns timely
appealed.

DISCUSSION
“The court may in its discretion dismiss an action for delay
in prosecution pursuant to this article on its own motion . . . if to
do so appears to the court appropriate under the circumstances of
the case.” (§ 583.410, subd. (a).) However, “[t]he court may not
dismiss an action pursuant to this article for delay in prosecution
except after one of the following conditions has occurred: [¶] . . .
[¶] (3) A new trial is granted and the action is not again brought
to trial within the following times: [¶] . . . [¶] (C) If on appeal . . .
a judgment is reversed and the action remanded for a new trial,
within two years after the remittitur is filed by the clerk of the
trial court.” (§ 583.420, subd. (a)(3)(C).) The times provided
“shall be computed in the manner provided for computation of the
comparable times under Articles 2 (commencing with Section
583.210) and 3 (commencing with Section 583.310).” (§ 583.420,
subd. (b).)
Article 3 is entitled “Mandatory Time for Bringing Action to
Trial or New Trial” and section 583.340 therein provides: “In
computing the time within which an action must be brought to
trial pursuant to this article, 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. [¶]

10
(c) Bringing the action to trial, for any other reason, was
impossible, impracticable, or futile.”9
“[I]n determining whether the impracticability exception [of
section 583.340, subdivision (c)] applied, the court must find the
following three factors: (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. The plaintiff has
the burden of proving these factors.” (De Santiago v. D & G
Plumbing, Inc. (2007) 155 Cal.App.4th 365, 372.)
The Browns argue the trial court erred in failing to exclude
from the two-year calculation: (a) the period between September
14, 2020 (when Mortensen’s doctor stated he lacked capacity) and
November 9, 2021 (when the court appointed a guardian for
Mortensen) because the court lacked jurisdiction during that time
period; and (b) the period between March 9, 2020, through
September 20, 2021, because that delay was caused by court
orders to continue the trial due to COVID-19.
When the trial court has ruled on a motion brought under
section 583.420, “ ‘ “ ‘ “unless a clear case of abuse is shown and
unless there has been a miscarriage of justice[,] a reviewing court
will not substitute its opinion and thereby divest the trial court of
its discretionary power.” ’ [Citations.] ‘ “The burden is on the
party complaining to establish an abuse of discretion . . . .” ’ ” ’ ”
(Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th
1422, 1430.) We find no abuse of discretion.

9 Article 2 is entitled “Mandatory Time for Service of

Summons” and contains no provisions relevant to this appeal.
(See §§ 583.210–583.250.)

11
A. Mortensen’s Incapacity
“When . . . a person who lacks legal capacity to make
decisions . . . is a party, that person shall appear . . . by a
guardian ad litem appointed by the court in which the action or
proceeding is pending . . . .” (§ 372, subd. (a)(1).) The Browns
argue that, because the trial court allegedly lacked jurisdiction
over Mortensen during the period in which he was incapacitated
but had no guardian ad litem, that time period must be excluded
from the calculation of the two years the Browns had to bring the
case to trial. Specifically, citing Siegal v. Superior Court of Los
Angeles County (1962) 203 Cal.App.2d 22 (Siegal), they argue
that “ ‘[L]ack of capacity’ is a ‘jurisdictional defect’ ” and “ ‘[t]o
proceed to trial and judgment’ for a person who lacks legal
capacity ‘would be an act in excess of ‘jurisdiction’ which could be
prevented by prohibition.’ ” We disagree.
First, we note that despite the Browns’ inaccurate assertion
to the contrary, Siegal never stated that “ ‘[L]ack of capacity’ is a
‘jurisdictional defect.’ ” Indeed, Siegal expressly noted that
“legal incapacity to sue does not go to the jurisdiction of the
court” and that an incapacitated party’s failure to appear through
a guardian ad litem can “be cured . . . and presents no
jurisdictional question.” (Siegal, supra, 203 Cal.App.2d at pp. 25,
27.)
Second, while Siegal cautioned that “[t]o proceed to trial
and judgment in the present posture of this case [where one party
lacked capacity] would be an act in excess of ‘jurisdiction’ which
could be prevented by prohibition” (Siegal, supra, 203 Cal.App.2d
at p. 27), our Supreme Court has held that “so long as a court
possesses fundamental jurisdiction, an act that it takes in excess
of jurisdiction is ‘ “valid until set aside, and parties may be

12
precluded from setting it aside by such things as waiver,
estoppel, or the passage of time.” ’ ” (Quigley v. Garden Valley
Fire Protection Dist. (2019) 7 Cal.5th 798, 813.) In other words,
whether or not proceeding to trial with Mortensen would have
been an act in excess of jurisdiction, his incapacity did not cause
the court’s jurisdiction to be suspended, and therefore the period
of his incapacity was not required to be excluded from the court’s
two-year calculation under section 583.340.

B. COVID-19
The Browns argue that “the time period commencing
March 9, 2020 until September 20, 2021 is also not properly
included in any period of time to bring the case to trial because
this period was the product of successive court orders continuing
trial based on COVID.” Again, we disagree.
First, the Browns cite nothing to substantiate their claim
that the continuances until September 20, 2021, were due to
COVID-19. As the Browns themselves admit in their appellate
brief, the superior court’s general order provided that “ ‘the Court
will not set any Civil jury trials to commence before January
2021.’ ” So, at most, any tolling would have ended on January 4,
2021, eleven months before the case was dismissed.10

10 We are aware that the emergency rules relating to

COVID-19 set forth in the California Rules of Court added six
months to the five- and three-year periods specified in sections
583.310 and 583.320, respectively. (Cal. Rules of Court, appendix
1, Emergency Rules Related to COVID-19, rules 10(a) & 10(b).)
However, they did not provide a tolling period to the statute at
issue here, the two-year discretionary period set forth in section
583.420, subdivision (a)(3)(C).

13
Second, while the Browns do not state which subdivision of
section 583.340 they rely on for their tolling argument,
subdivision (c) is the only potentially relevant subdivision.11 To
assert this exception, the Browns had the burden of
demonstrating a causal connection between the circumstance
causing the impossibility, impracticability, or futility, and their
failure to move the case to trial, and the burden of demonstrating
they were reasonably diligent in moving the case to trial. (De
Santiago v. D & G Plumbing, Inc., supra, 155 Cal.App.4th at p.
372.) But neither in the trial court nor on appeal did the Browns
even argue that the trial continuances due to COVID-19 impeded
their trial preparation in any way, much less did they provide
any evidence to support such an argument.12 The superior court’s

11 Subdivision (a) governs time periods when the

jurisdiction of the court to try the action was suspended—as
discussed above, the court never lost jurisdiction. Subdivision (b)
governs time periods when prosecution of trial of an action is
stayed or enjoined—our Supreme Court has made clear that
“subdivision (b) of section 583.340 governs only complete stays
that are ‘used to stop the prosecution of the action altogether.’ ”
(Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730.)
The Browns do not contend they were precluded from litigating
during the trial continuances that were due to COVID-19.
12 In fact, on August 6, 2020, when trial was still set for

August 17, 2020, the parties asked the trial court to vacate the
trial date and set a trial setting conference. While the Browns
imply that the court’s action was due to the Presiding Judge’s
July 10, 2020 general order, the court’s minute order makes no
mention of that general order, referencing instead a stipulation it
received from the parties. In any case, the July 10, 2020 general
order only continued trials set between July 10 and August 8,
2020, not trials set on August 17, 2020. Nor could the trial court
(Fn. is continued on the next page.)

14
general orders did not preclude litigation activities, just an actual
trial. Similarly, the Browns did not and do not attempt to show
they were reasonably diligent in moving the case to trial.13
Therefore, the court did not err in dismissing the case. (See
Jordan v. Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1421
[five-year period in which to bring case to trial not tolled under
section 583.340, subdivision (c) by “ ‘official moratorium on all
civil trials’ ” or “ ‘when the civil department had a de facto
moratorium on all but priority cases’ ” because “these
moratoriums did not prevent or interfere with plaintiffs’
prosecuting their case” and “[i]t is apparent from the record that
plaintiffs were not ready for trial at the time of the
moratoriums”].)

have been acting on the Presiding Judge’s subsequent general
order issued on August 10, 2020, continuing trials set between
August 10 and September 8, 2020, as that general order did not
issue until four days after the trial court issued its order vacating
the trial date pursuant to the parties’ stipulation.
13 Thus, we find distinguishable the Browns’ citation to

Chin v. Meier (1991) 235 Cal.App.3d 1473. There, the court
found that the 5-year period in which an action must be brought
to trial under section 583.310 was tolled during “4 court-ordered
trial continuances . . . when both sides announced ‘ready’ [for
trial] but no courtrooms were available.” (Chin, at p. 1476.)
Here, there is no evidence that the Browns ever announced
“ready” for trial. (See also De Santiago v. D & G Plumbing, Inc.,
supra, 155 Cal.App.4th at p. 376 [criticizing Chin for failing to
consider reasonable diligence in determining whether the
impracticability exception applied].)

15
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs
on appeal.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9893399. Public record. Not legal advice.