Chamberlain v. Fern

• Court: California Court of Appeals
• Writing for the Court: SANCHEZ, ACTING P. J.
• Docket Number: G062316
• Decision Date: 24 July 2024
• Citation: Chamberlain v. Fern, G062316 (Cal. App. Jul 24, 2024)
• Parties: DAVID T. CHAMBERLAIN et al., Plaintiffs and Appellants, v. MARTIN D. FERN et al., Defendants and Respondents.

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DAVID T. CHAMBERLAIN et al., Plaintiffs and Appellants, v. MARTIN D. FERN et al., Defendants and Respondents.

G062316

California Court of Appeals, Fourth District, Third Division

July 24, 2024

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County, No 30-2015-00826601 Ronald L. Bauer, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded. Appellants' motion for judicial notice is granted in part and denied in part. Respondents' request for judicial notice is granted in part and denied in part.

Garcia Rainey Blank & Bowerbank, Norma V. Garcia, Jeffrey M Blank; Law Office of Gregory S. Page and Gregory S. Page for Plaintiffs and Appellants.

Greines, Martin, Stein & Richland, Robin Meadow and Anne Guidroz for Defendants and Respondents.

OPINION

SANCHEZ, ACTING P. J.

INTRODUCTION

David T. and Linda Chamberlain (the Chamberlains) appeal from the order granting the motion of Martin D. Fern, Linda Taylor-Fern, and First Realm, LLC,^[1] to dismiss the Chamberlains' complaint pursuant to Code of Civil Procedure section 583.310.^[2] The trial court found the Chamberlains had failed to bring the action to trial within five years as required by section 583.310. We reverse because in calculating those five years, the trial court did not exclude all periods of time in which bringing the action to trial was impossible, impracticable, or futile within the meaning of section 583.340, subdivision (c).

The trial court should have excluded the period of time from March 17, 2020 through August 18, 2021 in calculating when the five years in which to bring the action to trial expired. The Chamberlains filed their complaint on December 22, 2015. On February 18, 2020, counsel for the Chamberlains and counsel for defendants appeared before Judge Linda S. Marks,^[3] and answered ready for trial. Boxes of exhibits were brought to the courtroom. Some 40 pretrial motions were argued on March 4 and 5 and ruled on by Judge Marks, who ordered the parties to return on March 17 for jury selection.

Then the COVID-19 pandemic struck. Nearly every facet of life was upended. The Superior Court of Orange County (Superior Court) closed on March 17 and soon thereafter all jury trials statewide were suspended for 60 days. In July 2020, Judge Marks told the parties she did not know when the trial might resume. In bankruptcy court filings in September 2020 and April and August 2021, counsel for the Ferns admitted the jury trial in this matter had been placed on hold indefinitely. In June 2021, Judge Marks recused herself and was not replaced until August 18, when Judge Gregory H. Lewis was assigned to this case.

Those circumstances made it impossible, impracticable, or futile to bring this action to trial from March 17, 2020 through at least August 18, 2021. When that time period is excluded, the five years in which to bring the action to trial ended on May 25, 2022. California Rules of Court, emergency rule 10(a) extended the time by six months-to November 25, 2022. (Cal. Rules of Court, appen. I, emergency rule 10(a); Emergency Rule 10(a).) When retired Judge Ronald L. Bauer granted the Ferns' motion to dismiss in May 2022, the Chamberlains still had six more months in which to bring the action to trial or, more accurately, to resume where the proceedings had left off on March 5, 2020.

The Chamberlains have brought a motion for judicial notice of 29 items, marked as exhibits Nos. 3 through 5, 48, 50 through 54, 56 through 61, 64 through 68, 70 through 75, 86, 87, and 89. The Ferns oppose the Chamberlains' motion for judicial notice (except for exhibits 54, 61, and 68) and have brought their own request for judicial notice of four items, marked as exhibits A, B, C, and D.

We grant the Chamberlains' motion as to exhibits Nos. 48, 50, 51, 52, 53, 54, 57, 58, 60, 61, 64, 65, 66, 67, 68, 71, and 87. We deny the motion as to exhibits Nos. 3, 4, 5, 56, 59, 70, 72, 73, 74, 75, 86, and 89. We grant the Ferns' request for judicial notice as to exhibits A, B, and C, and deny the request as to exhibit D.

FACTS

I. The Parties and Counsel Appear Ready for Trial in February 2020

December 22, 2015 is the starting date for calculating the five years in which to bring this action to trial: On that date, the Chamberlains filed their complaint against defendants. The complaint asserted causes of action for breach of oral contract, breach of implied in fact contract, fraud, constructive trust, common counts, and other causes of action arising out of a failed joint venture between the Chamberlains and the Ferns.

Defendants answered the complaint, and in October 2017, the Ferns filed a cross-complaint against the Chamberlains.

The case was diligently and vigorously litigated. A jury trial was set for January 6, 2020, before Judge Marks. Estimated time for trial was five to six weeks.

Trial was continued (apparently by the court) to February 18, 2020. On January 13, the parties filed a statement of stipulated facts, a statement of controverted issues, and a witness list. On January 14, the parties filed a total of 39 motions in limine and a motion to bifurcate trial.

On February 18, 2020, the date set for trial, counsel appeared before Judge Marks and answered ready for trial. Boxes containing trial exhibits were brought to the courtroom. After reviewing trial procedures and schedule, Judge Marks ordered a recess and ordered everyone to return on February 25. While in chambers, Judge Marks told counsel they were "engaged in trial" and admonished them not to engage in any other trials.

On February 25, 2020, counsel appeared before Judge Marks, who announced: "The case comes before the court this morning. It is set for trial. [T]he plan is to conduct our jury selection starting March 17, 2020, and follow the Court's schedule, which is on Tuesday, Wednesday, Thursday trial days." The parties had filed a total of 39 motions in limine, and the Chamberlains had brought a motion to bifurcate trial between legal and equitable claims. Judge Marks heard argument on all those motions on February 25, March 4, and March 5. Judge Marks granted some and denied other motions in limine and denied the motion to bifurcate. After extended argument, Judge Marks granted a motion to bifurcate liability from damages.

Before ordering a recess on March 5, Judge Marks announced: "I have ordered counsel to return on the 17th at 9:30 a.m. for trial. I would like the jury verdict forms and special . . . jury instructions to be provided to the court by the Friday before you return on the 17th, and in addition to, the court is anticipating telling the jury that this case will start on the 18th of March and conclude by the 23rd of April ...." The register of actions reflects proposed jury instructions were submitted by the Chamberlains on March 12, 2020 proposed verdict forms were submitted the next day.

II. Court Closure Due to COVID-19

On March 16, 2020, the Superior Court issued a news release stating that in response to the COVID-19 outbreak the court would be closed at all locations from March 17 through March 27, 2020. On March 17, 2020, in response to the outbreak, Judge Marks issued a minute order stating: "Due to COVID-19 outbreak, the Court makes a finding of good cause and orders this matter continued as follows: [¶] Pursuant to Government Code [section] 68115 this trial will be set out for a future date. [¶] An interim Status Conference is scheduled for 04/01/2020 at 10:00 AM in Department C10. [¶] Counsel are to meet and confer regarding a new trial date and be prepared to discuss at the Status Conference." The boxes of exhibits remained in Judge Marks's courtroom until December 2021.

On March 23, 2020, the Chief Justice of California issued a statewide order suspending jury trials for 60 days due to the COVID-19 pandemic.

On April 2, 2020, the Superior Court issued administrative order No. 20/11 establishing the procedures to determine whether good cause existed to conduct a jury trial during the 60-day suspension of trials.

The parties were informed that trial would resume on April 1, 2020. Then, trial was suspended, and a status conference was set for April 1, 2020, in place of trial. Another status conference was scheduled for July 6, 2020.

On April 6, 2020, Emergency Rule 10(a) became effective. Emergency Rule 10(a) extended the time in which to bring an action to trial by six months.

On April 24, 2020, the Superior Court issued a press release announcing the court would be closed through at least May 22, 2020, with a few exceptions, and stating, "There is no date certain for when the Court will reopen to the public."

On May 21, 2020, the Superior Court announced a partial reopening for limited services. It was announced, "'We will be resuming four criminal trials that were suspended due to the Court closure and we hope to commence additional criminal jury trials in early June.'" (Italics added.)

On June 9, 2020, the Superior Court issued administrative order No. 20/18 reestablishing "a procedure for determining priority for jury trials among noncriminal case types ...." (Super. Ct. Orange County, Admin. Order No. 20/18 (June 9, 2020).) The trial judge would make the initial determination whether there was good cause for a jury trial to resume or commence in civil cases. (Ibid.)

The status conference before Judge Marks went forward as scheduled on July 6, 2020. Judge Marks stated it was unclear when trial would resume as it was a long cause matter, but counsel would receive updates. Judge Marks set another status conference for September 21, 2020, but on September 10 the court took that status conference off calendar.

On ...