Mooney v. Argus Realty Inv'rs, G060076

CourtCalifornia Court of Appeals
Writing for the CourtO'LEARY, P.J.
PartiesLORELEI MOONEY, as Trustee, etc., et al., Plaintiffs and Appellants, v. ARGUS REALTY INVESTORS et al., Defendants and Respondents.
Docket NumberG060076
Decision Date29 November 2022

LORELEI MOONEY, as Trustee, etc., et al., Plaintiffs and Appellants,

ARGUS REALTY INVESTORS et al., Defendants and Respondents.


California Court of Appeals, Fourth District, Third Division

November 29, 2022


Appeal from a judgment of the Superior Court of Orange County, No. JCCP 4811, Peter J. Wilson, Judge. Affirmed.

Catanzarite Law Corporation, Kenneth J. Catanzarite, Nicole M. Catanzarite-Woodward and Eric V. Anderton for Plaintiffs and Appellants.

Tencersherman, Philip C. Tencer and Jessica L. Mulvaney for Defendants and Respondents.




Lorelei Mooney as trustee and on behalf of the Herbert and Helen Schweiger Trust, ARI-DFW East &West 9, L.P., Gary Lamm, and James Mieuli (Plaintiffs) are a group of investors who filed a lawsuit in 2014 on behalf of themselves and a putative class. Plaintiffs appeal from an order of dismissal based on their failure to bring the action to trial within five years after it was commenced. (Code Civ. Proc., § 583.310.)[1] Plaintiffs allege that due to several stays of the proceedings, the time to bring the case to trial should have been extended. Assuming that we would agree with this argument, Plaintiffs raise the additional argument the court should not have sustained defendants' demurrer to their third amended complaint. We need not reach this issue, however, because we conclude the trial court correctly dismissed the lawsuit. We affirm the judgment.


Plaintiffs' lawsuit (the Mooney Action) initially named over 20 defendants, who they alleged were involved in a fraudulent tenant-in-common investment scheme designed to wrongfully induce the class members to sell their real property, invest in real property, and defer capital gains taxes via these transactions pursuant to Internal Revenue Code section 1031. Over time, several defendants were dismissed from the case and all that remained in 2021 were Argus Realty Investors, L.P., ARI Financial Services, Argus Realty, L.L.C., ARI Commercial Properties, Inc., Richard Gee, Maxwell B. Drever, Timothy E. Snodgrass, William Brain Candler, ARI-DFW, East &West, L.P., ARI-Barrett Office Center, LLC, ARI-Atrium Office Building, LLC, ARI-Powers Ferry Office Park, LLC, ARI Copley Business Center, LLC, ARI-Shoreview Corporate Center, LLC, ARI-Securities Centre One &Two, LLC, and ARI-Meridian Plaza, LLC. For ease of reading, we will refer collectively to these parties as Defendants.


Because the trial court's dismissal of these Defendants was based on Plaintiffs' failure to bring the action to trial within the statutory time period, we discuss only the relevant facts relating to the procedures employed after the filing of the lawsuit, not the facts that underlie Plaintiffs' complaint or Defendants' affirmative defenses.

I. The Complaint and the First Stay Order

Plaintiffs filed the Mooney Action on February 3, 2014, in Los Angeles. The following month, on March 26, 2014, a Los Angeles Superior Court judge ruled the case was complex. The court issued an order stating, "By this order, the court stays the case, except for service of the summons and complaint. The stay continues at least until the initial status conference . . . set for May 2, 2014 . . . in this department. At least 10 days prior to the initial status conference, counsel for all parties must discuss the issues set forth in the initial status conference order issued this date. The initial status conference order is to help the court and the parties manage this complex case by developing an orderly schedule for briefing, discovery, and court hearings. The parties are informally encouraged to exchange documents and information as may be useful for case evaluation. [¶] Responsive pleadings shall not be filed until further order of the court. Parties must file a notice of appearance in lieu of an answer or other responsive pleading....Nothing in this order stays the time for filing an affidavit of prejudice pursuant to . . . section 170.6."[2]

On April 1, 2014, two parties in the action filed a petition to compel arbitration and to stay all further proceedings. Thereafter, the court continued the scheduled May status conference to June 23, 2014.


II. The Stay Order Continued and Modified

On June 23, 2014, the court held the status conference and ordered Defendants to prepare a notice of ruling. The ruling stated the court held a status conference to discuss the possible coordination of the Mooney Action with eight lawsuits pending in the Orange County Superior Court. The court determined the lawsuits should be coordinated and it ordered one of the parties to prepare the necessary documents. It also ruled, "The Mooney Action remains stayed pending further order of the Court. There shall be no responsive pleadings or discovery filed or served pending the stay." The court scheduled a non-appearance status conference on October 20, 2014.

On January 14, 2015, the Los Angeles Superior Court held a nonappearance review hearing. It reviewed the parties' joint status report indicating the petition for coordination was still pending. It continued the matter to March 17, 2015.

The Orange County Superior Court granted the petition for coordination on February 4, 2015. Thereafter, Plaintiffs' counsel filed a peremptory challenge as to Judge Gail Andler, and in March 2015, the matter was reassigned to Judge Kim Dunning.

III. The Stay Order Again Continued and Modified

The court (in Orange County) held a status conference on April 22, 2015. The notice of ruling announced three orders in the coordinated action. First, the court granted an unopposed motion for good faith settlement. Second, it set a status conference for May 27, 2015. Third, the court continued the stay originally ordered by the Los Angeles County trial judge "other than for Plaintiffs' ability to file a first amended complaint as a matter of right, alternatively a motion for leave to file a first amended complaint and/or a dismissal of any defendants." The status conference was continued several times, sometimes by the court and twice by Plaintiffs.

On January 11, 2017, the court held a status conference. The court 's minute order stated Plaintiffs' counsel intended to "narrow down the case by filing requests for dismissals without prejudice as to certain defendants by January 17, 2017,


and then filing a first amended complaint" (FAC) by February 13, 2017. The court noted Plaintiffs' counsel stated the FAC would be against certain defendants, and it directed counsel to "confer with the attorneys that represent the defendants they intend to pursue by amended complaint, whether or not it is a matter of right." The court ordered counsel to "circulate the proposed amended complaint with a redline version to Defendants' counsel." Finally, the court noted the parties indicated some defendants had reached a settlement with Plaintiffs and "parties shall be in a position to dismiss within 60 days."

IV. Stay Lifted

On August 30, 2017, the court held a status conference. The court ordered "the stay lifted with respect solely to . . . Catanzarite, Plaintiffs' counsel filing an amended pleading in the Mooney case and any responsive pleadings by the defendants." The court directed Plaintiffs' counsel to prepare the amended pleadings and "disseminate a draft to allow all of the parties to review" it before it was filed. It ordered the parties to meet and confer to discuss the amended pleadings.

The court gave Plaintiffs a deadline of September 18, 2017, to provide all the parties with a copy of the proposed FAC, and specified the pleading must be filed by October 2, 2017. If Plaintiffs failed to meet their deadline, the court gave Defendants the option of filing responses to the original complaint by October 30, 2017. It continued the status conference to December 6, 2017. Plaintiffs filed their FAC on November 27, 2017.

V. Pre-trial Litigation Activity

In early 2019, Plaintiffs filed a third amended complaint. Defendants filed a demurrer, and Plaintiffs filed an objection to it. The court continued the hearing on the demurrer to November 2019. That same month, Defendants filed a response to the list of facts, and provided court-ordered documents and exhibit lists. Plaintiffs filed an omnibus objection.


The court continued the hearing on the demurrer to January 2020. When the court heard the matter, it sustained the demurrer to the seventh and fourteenth causes of action without leave to amend. It sustained the demurrer to all the other causes of action with leave to amend, specifying: "Leave to amend is restricted to claims based on and/or arising out of the alleged lack of a real estate broker's license, as the court finds that all other asserted claims are time-barred." It set a status conference for April 17, 2020, and indicated the fourth amended complaint must be served and filed by February 21, 2020. Plaintiffs filed a fourth amended complaint on February 24, 2020.

VI. Motion to Dismiss

On December 28, 2020, Defendants filed a motion to dismiss for failure to bring the action to trial within five years. They cited case authority holding that the trial court, in computing the five-year period, must exclude time during which all the proceedings in the action were stayed. Defendants maintained that in their case, no stay order tolled the five-year period because the court ordered partial not complete stays of the case.

Plaintiffs opposed the motion, arguing the court's initial stay order was continued from March 2014 through August 2017, and they were not permitted to conduct discovery or move the case toward trial. They presented evidence that by the time Plaintiffs were allowed to amend the complaint, several appeals were pending making this option impractical.

The court dismissed the case with prejudice. It stated on the record that it was mindful of the "extreme...

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