In re Fid. Nat'l Home Warranty Co., D074161

• Court: California Court of Appeals
• Writing for the Court: AARON, J.
• Citation: 46 Cal.App.5th 812,260 Cal.Rptr.3d 200
• Parties: FIDELITY NATIONAL HOME WARRANTY COMPANY CASES
• Decision Date: 20 March 2020
• Docket Number: D074161

46 Cal.App.5th 812
260 Cal.Rptr.3d 200

FIDELITY NATIONAL HOME WARRANTY COMPANY CASES

D074161

Court of Appeal, Fourth District, Division 1, California.

Filed March 20, 2020

Bottini & Bottini, Francis A. Bottini, Jr., Yury A. Kolesnikov, La Jolla; Cotchett, Pitre & McCarthy, Niall P. McCarthy and Anne Marie Murphy, Burlingame, for Plaintiff and Appellants.

Hahn Loeser & Parks, Michael J. Gleason and Steven A. Goldfarb, San Diego, for Defendant and Respondent.

AARON, J.

260 Cal.Rptr.3d 204

46 Cal.App.5th 816

I.

INTRODUCTION

Plaintiffs Dan Kaplan, James Baker, Janice Fistolera, Fernando Palacios, and Hamid Aliabadi appeal from two judgments dismissing two coordinated actions against defendant Fidelity National Home Warranty Company (Fidelity): Fistolera v. Fidelity National Home Warranty Company (Super. Ct. San Joaquin County, No. 39-2012-00286479-CU-BT-STK) (Fistolera Action) and Kaplan v. Fidelity National Home Warranty Company (Super. Ct. San Diego County, No. 37-2008-00087962-CU-BT-CTL) (Kaplan Action).¹ The trial court dismissed the actions after determining that the plaintiffs failed to timely prosecute each case. With respect to the Fistolera Action, a putative class action, the trial court concluded that the Fistolera Plaintiffs failed to bring the action to trial within the five-year mandatory period specified in Code of Civil Procedure section 583.310.² As to the Kaplan Action, a certified class action, the trial court concluded that the Kaplan Plaintiffs failed to bring the action to trial within three years of the issuance of the remittitur in a prior appeal in that action ( Kaplan v. Fidelity National Home Warranty, 2013 WL 6641365 (December 17, 2013, D062531, D062747) [nonpub. opn.] ( Kaplan I )), as required by section 583.320.³ On appeal, plaintiffs claim that the trial court erred in dismissing each action.

Prior to addressing the merits of the plaintiffs' claims, we consider in part III.A, post , whether the plaintiffs' appeals are timely. For reasons that we explain in that part, we conclude, as a matter of first impression, that the trial

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court's order dismissing the actions did not constitute a judgment pursuant to section 581d, and that the plaintiffs' appeals from the ensuing judgments were timely.

On the merits of the plaintiffs' claims, we conclude that, in calculating the five-year and three-year mandatory dismissal periods, the trial court erred in failing to exclude 135 days immediately following the

260 Cal.Rptr.3d 205

assignment of a coordination motion judge to rule on a petition to coordinate the Fistolera Action and the Kaplan Action. We reach this conclusion because it was "impracticable" to bring either action to trial (§ 583.340, subd. (c)) during this period since California Rules of Court, rule 3.515(i) provides that "no trial may be commenced" during such a period. We further conclude that this error requires reversal of the dismissal of the Fistolera Action because, after excluding these 135 days, the five-year period had not expired as of the time the trial court dismissed that action, and the matter was set for trial within the five-year period.

However, we conclude that this error does not require reversal of the trial court's dismissal of the Kaplan Action. We reach this conclusion because, even after excluding 135 days related to the coordination proceedings, the three-year period that the Kaplan Plaintiffs had to bring that action to trial had expired as of the time the trial court dismissed that case. Further, none of the Kaplan Plaintiffs' arguments for additional tolling of the three-year period has merit.

Accordingly, we reverse the judgment in the Fistolera Action and affirm the judgment in the Kaplan Action.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Kaplan Action prior to Kaplan I⁴

In 2008, Kaplan and Baker, as putative class representatives (Kaplan Plaintiffs),⁵ each filed a lawsuit against Fidelity. In their complaints, the Kaplan Plaintiffs alleged that they had entered into home warranty agreements with Fidelity. The Kaplan Plaintiffs further alleged that they had made claims under the agreements and that Fidelity failed to properly address their

46 Cal.App.5th 818

claims. According to the Kaplan Plaintiffs, Fidelity violated its contractual obligations and engaged in unfair and unlawful business practices. The Kaplan Plaintiffs later consolidated their complaints.

In November 2010, the trial court certified a class of "[a]ll persons and entities residing in the United States who, during the period from July 18, 2002 through the present ... made a claim under a home-warranty plan obtained from defendant Fidelity...."

In December 2011, Fidelity moved to strike and dismiss a fourth amended complaint that had been filed in the Kaplan Action. The trial court granted Fidelity's motion and dismissed the entire action without prejudice. The Kaplan Plaintiffs appealed.

B. The Fistolera Action prior to Kaplan I

While the Kaplan Action was being appealed, on August 30, 2012, Fistolera, Palacios, and Jared Whitfield filed the Fistolera Action in San Joaquin County Superior Court. As in the Kaplan Action, the complaint alleged that Fidelity had engaged in various types of wrongful conduct in connection with Fidelity's home warranty business. The complaint in the Fistolera Action indicated that it was brought on behalf of all persons or entities who had purchased or received a Fidelity home

260 Cal.Rptr.3d 206

warranty plan from July 18, 2002 through the present.⁶ In October 2013, the Fistolera Plaintiffs filed the operative second amended complaint, adding Aliabadi as a named plaintiff and withdrawing Whitfield. The operative second amended complaint contains an individual breach of contract cause of action and six additional causes of action that are brought on behalf of both the individual named plaintiffs and the class.

C. Kaplan I

In December 2013, this court issued our opinion in Kaplan I . As relevant here, we reversed the dismissal of the action without leave to amend and remanded the matter with direction to permit the Kaplan Plaintiffs an opportunity to amend their complaint. ( Kaplan I, supra , D062531, D062747.) The remittitur in Kaplan I issued on April 14, 2014.

46 Cal.App.5th 819

D. The coordination proceedings

In September 2014, the Kaplan Plaintiffs filed a petition for coordination with the Judicial Council, seeking to coordinate the Kaplan Action and the Fistolera Action.

The Fistolera Plaintiffs notified the San Joaquin County Superior Court of the petition for coordination that same month.

On October 19, 2014, the Judicial Council assigned San Diego County Superior Court Judge Eddie Sturgeon to be the coordination motion judge.⁷ On March 3, 2015, Judge Sturgeon granted the petition for coordination. On April 10, 2015, the Judicial Council appointed Judge Sturgeon as the coordination trial judge⁸ in the proceedings.

E. Fidelity's motions to dismiss

In August 2017, Fidelity moved to dismiss the Kaplan Action for failure to bring the case to trial in a timely manner, and in October 2017, Fidelity moved to dismiss the Fistolera Action on the same ground. In November 2017, plaintiffs filed an omnibus opposition to Fidelity's motions to dismiss.

F. The trial court sets a trial date in both actions

Three days after Fidelity filed its motion to dismiss the Kaplan Action, the plaintiffs filed an ex parte application seeking to consolidate the actions and set them for trial. The trial court denied the consolidation request, but set the matters for trial on February 16, 2018.

G. The Fistolera Plaintiffs' motion for leave to amend

In September 2017, the Fistolera Plaintiffs moved for leave to amend the second amended complaint to permit Fistolera, Aliabadi, and Palacios to be dismissed from the action and to add a new named plaintiff, Richard Eidson. The motion indicated that it would be set for hearing in January 2018.

260 Cal.Rptr.3d 207

H. Plaintiffs' Motions for Class Certification

Plaintiffs filed motions for class certification in both actions in November 2017. In their motion, the Kaplan Plaintiffs explained that they were seeking

46 Cal.App.5th 820

to certify additional claims in that action on behalf of the already certified class. The Fistolera Plaintiffs sought to certify a class and to have Eidson appointed as a class representative. Both motions indicated that they would be set for a hearing in April 2018. Plaintiffs filed an omnibus memorandum in support of their motions.

I. The trial court's dismissal of the actions

On December 15, 2017, the trial court granted Fidelity's motions to dismiss both cases for failure to...