Dowling v. Farmers Ins. Exch.
| Decision Date | 16 August 2012 |
| Docket Number | No. B228899.,B228899. |
| Citation | 145 Cal.Rptr.3d 748,12 Cal. Daily Op. Serv. 9430,2012 Daily Journal D.A.R. 11473,208 Cal.App.4th 685 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Rhonda DOWLING et al., Plaintiffs and Appellants, v. FARMERS INSURANCE EXCHANGE, Defendant and Respondent. |
OPINION TEXT STARTS HERE
See 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 358 et seq.
Roxborough, Pomerance, Nye & Adreani, Woodland Hills, Drew E. Pomerance, Burton Falk; Goshgarian & Marshall and Mark Goshgarian, Calabasas, for Plaintiffs and Appellants.
Barger & Wolen, Los Angeles, Steven H. Weinstein, Marina M. Karvelas and Peter Sindhuphak for Defendant and Respondent.
Rhonda Dowling, individually and on behalf of others similarly situated, appeals the dismissal of her class action and individual complaint against Farmers Insurance Exchange (Farmers). The trial court concluded that the five-year period to bring the action to trial (Code Civ. Proc., § 583.310) expired on June 17, 2010, pursuant to the parties' written stipulation. The court therefore granted Farmers's motion to dismiss the class action allegations and later dismissed the entire action. Plaintiffs contend the court's interpretation of the stipulation was erroneous and the five-year period should be tolled beyond June 17, 2010.
We believe that the court properly interpreted the stipulation but erred by failing to consider the potential impact on this case of appellate proceedings in a related action in determining whether it was impracticable or futile to bring this action to trial. We therefore will reverse the judgment and remand for a limited reconsideration of Farmers's motion to dismiss.
Douglas Ryan commenced the present action by filing a complaint against Farmers in June 2003 alleging a single count for violation of the unfair competition law (Bus. & Prof.Code, § 17200 et seq.). The trial court determined that the case was related to Poss v. 21st Century Ins. Co. (L.A.Sup.Ct. No. BC297438) and transferred both cases to the same judge. 1 The court then stayed this action in October 2003 pending a decision by the Court of Appeal in Donabedian v. Mercury Ins. Co. The court later extended the stay pending a decision by the Court of Appeal in Poirer v. State Farm Mut. Auto Ins. Co.2 California voters passed Proposition 64 in November 2004, restricting a plaintiff's standing under the unfair competition law. The trial court granted Farmers's motion for judgment on the pleadings in May 2005 based on the new standing requirements, but granted Ryan leave to amend the complaint to allege a count for violation of Insurance Code section 1861.02. Farmers challenged the ruling by petitioning this court for a writ of mandate. The trial court stayed the action in June 2005 pending our decision in the writ proceeding. In our opinion on the issues raised by that writ petition ( Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 853–859, 40 Cal.Rptr.3d 653( Farmers )), we held that there is no private right of action for a violation of Insurance Code section 1861.02.
Following remand, the trial court, in September 2006, granted the motion for judgment on the pleadings and dismissed the action in its entirety. In the trial court's view, our opinion in Farmers, supra, 137 Cal.App.4th 842, 40 Cal.Rptr.3d 653, disposed of the entire action. Ryan petitioned for writ review and, on November 16, 2006, we filed an order, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893, stating that we were considering the issuance of a peremptory writ of mandate in the first instance directing the trial court to vacate its order. We stated that our opinion in Farmers did not address the question whether plaintiff could amend his complaint, and that the California Supreme Court, in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 46 Cal.Rptr.3d 66, 138 P.3d 214, filed after our opinion in Farmers, held that Proposition 64 did not necessarily preclude an amendment to a complaint to substitute a new plaintiff who had suffered an injury in fact. The trial court responded with an order in December 2006 vacating its prior order granting judgment on the pleadings.
Plaintiffs' counsel filed a first amended class action complaint in January 2007 naming Rhonda Dowling as the sole class representative. The parties filed a stipulation in April 2008 stating:
“IT IS HEREBY STIPULATED, by and between the parties, through their counsel as follows:
“1. Whereas the class action lawsuit originally entitled Douglas Ryan, an individual, and on behalf of the general public, Plaintiff v. Farmers Insurance Company, and Does 1 through 100, inclusive, Defendants, LASC No. BC297437 was filed on June 13, 2003 (‘Farmers action’);
“2. Whereas the class action lawsuit originally entitled Dana Poss, an individual, and on behalf of the general public, Plaintiff v. 21st Century Insurance Company, and Does 1 through 100, inclusive, LASC No. BC297438 was filed on June 13, 2003 (‘21st Century action’);
“3. Whereas on October 3, 2003, the Superior Court deemed the Farmers action and the 21st Century action, and several other actions, related and stayed all of these actions pending a final decision by the Court of Appeal in Donabedian v. Mercury Ins. Co.
“4. Whereas after that opinion was filed on March 11, 2004 in Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968 , the Superior Court continued the stay pending a final decision by the Court of Appeal in Poirer v. State Farm Mut. Auto Ins. Co. (B165389).
“5. Whereas on October 15, 2004, the nonpublished opinion by the Court of Appeal in Poirer v. State Farm Mut. Auto Ins. (B165389) was issued;
“6. Whereas after a petition for writ of mandate was filed in the Court of Appeal in the Farmers action, the Superior Court issued a stay of the Farmers action and the 21st Century action on June 30, 2005, which remained in effect until June 22, 2006 when the Court of Appeal issued a remittitur, remanding the Farmers action back to the Superior Court;
“7. Whereas the jurisdiction of the Superior Court to try the Farmers action was suspended while the cases were stayed from October 3, 2003 to October 15, 2004 (i.e., one year and 12 days) and June 30, 2005 to June 22, 2006 (i.e., 11 months and 22 days);
“8. Whereas Code of Civil Procedure § 583.310 requires an action to be brought to trial within five years after the action is commenced;
“9. Whereas in computing the five year time period within which an action must be brought to trial pursuant to Code of Civil Procedure § 583.310, Code of Civil Procedure § 583.340 excludes from the computation the time during which the jurisdiction of the Superior Court to try the action was suspended;
“10. Whereas the jurisdiction of the Superior Court to try the Farmers action was suspended while the cases were stayed as described above; and
“11. Whereas the parties have agreed to identify the five year period required to bring an action to trial under Code of Civil Procedure § 583.310.
IT IS HEREBY STIPULATED TO AND BETWEEN THE PARTIES AS FOLLOWS:
“Absent any further periods wherein the Superior Court's jurisdiction to try the Farmers action is suspended under Civil Code [ sic ] § 583.340 and/or any further Court orders or party stipulations extending or tolling the time period to bring either action to trial, the five year time period to bring the Farmers action to trial under Code of Civil Procedure § 583.310 does not expire until June 17, 2010.
“IT IS SO STIPULATED.”
The trial court entered an order on the stipulation on April 29, 2008. The parties to the MacKay action, represented by the same counsel as the parties to this action, entered into a virtually identical stipulation, and the MacKay court entered an order on that stipulation on the same date, April 29, 2008.
Both parties to the MacKay action petitioned this court for a writ of mandate challenging the trial court's rulings on the defendant's motion for summary adjudication. The plaintiffs filed their writ petition on November 24, 2009, and 21st Century Insurance Company (21st Century) later filed its own writ petition. We issued an order to show cause on the plaintiffs' petition on April 7, 2010, including a stay of all trial court proceedings in the MacKay action and in another action, Karnan v. Safeco Ins. Co. (L.A.Sup.Ct. No. BC266219). We later issued an order to show cause on 21st Century's petition and consolidated it with plaintiffs' petition. We filed our opinion in MacKay v. Superior Court (2010) 188 Cal.App.4th 1427, 115 Cal.Rptr.3d 893 on October 6, 2010. Our stay in MacKayremained in effect until we filed a remittitur on October 25, 2010.3
Farmers filed a motion to dismiss the class action allegations in this matter on May 13, 2010, arguing that the April 2008 stipulation (quoted above) established a deadline of June 17, 2010, to bring the case to trial pursuant to Code of Civil Procedure section 583.310. Farmers argued that plaintiffs had failed to diligently prosecute this action, could not possibly obtain class certification by that date and that the class action allegations therefore should be dismissed. Plaintiffs argued in opposition that the stipulation did not preclude additional tolling periods that would extend the five-year period beyond June 17, 2010, and that they had diligently prosecuted this action. Plaintiffs urged that the five-year period should be tolled by an additional 21 months based on four events.
Plaintiffs asserted that (1) the then-pending extraordinary writ proceedings in the MacKay action presented unsettled legal questions of significance in this action making it impracticable or futile to bring this case to trial; (2) the dismissal of this...
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