Nunn v. JPMorgan Chase Bank, N.A.

• Decision Date: 18 May 2021
• Docket Number: A160286, A160794
• Citation: 278 Cal.Rptr.3d 726,64 Cal.App.5th 346
• Court: California Court of Appeals Court of Appeals
• Parties: Gerald L. NUNN et al., Plaintiffs and Appellants, v. JPMORGAN CHASE BANK, N.A. et al., Defendants and Respondents. Gerald L. Nunn et al., Petitioners, v. The Superior Court of Napa County, Respondent, JPMorgan Chase Bank, N.A. et al., Real Parties in Interest.

64 Cal.App.5th 346

278 Cal.Rptr.3d 726

Gerald L. NUNN et al., Plaintiffs and Appellants,

v.JPMORGAN CHASE BANK, N.A. et al., Defendants and Respondents.

Gerald L. Nunn et al., Petitioners,

v.The Superior Court of Napa County, Respondent,JPMorgan Chase Bank, N.A. et al., Real Parties in Interest.

A160286, A160794

Court of Appeal, First District, Division 4, California.

Filed May 18, 2021

Alan Charles Dell'Ario, Napa, for Plaintiffs and Appellants.

Bryan Cave Leighton Paisner, Glenn J. Plattner, Santa Monica, Joseph J. Poppen, Daniel T. Rockey, San Francisco, and David Harford, Irvine, for Real Parties in Interest.

TUCHER, J.

This consolidated appeal and petition for writ of mandate call upon us to apply two provisions in the Code of Civil Procedure: section 583.320 limits to three years the time within which a plaintiff, having succeeded on appeal, may bring a case to trial after the remittitur is filed in superior court, and section 583.330 allows the parties to extend that deadline by agreement. (All statutory references are to the Code of Civil Procedure, unless otherwise indicated.) We conclude the parties’ agreement here to a trial date outside the three-year period extended the statutory deadline to that trial date, and on that basis we reverse the judgment dismissing this case for failure to prosecute.

BACKGROUND

Gerald and Judith Nunn, husband and wife, owned a home in Napa with a mortgage they refinanced in July 2006 through Washington Mutual Bank, F.A. The loan was a negative amortization loan, and when the Nunns’ payments jumped from less than $2,900 per month to almost $4,300 in August 2008, they defaulted on the loan. In January 2009, the Nunns filed an application for a loan modification with JPMorgan Chase Bank, N.A. (Chase), which had acceded to Washington Mutual's loan. In 2010, Chase denied the Nunns’ modification application but continued negotiations with them until the Nunns finally sued.

In August 2011, the Nunns filed the underlying action against Chase and its affiliates (Chase Defendants), alleging wrongful foreclosure, quiet title, and negligence, among other things, based on allegations that Chase had "dual track[ed]" them during loan modification negotiations. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 904–905, 153 Cal.Rptr.3d 546 [describing "dual tracking"].) The superior court granted the Chase Defendants’ motion for summary judgment in 2013 and entered judgment in their favor.

The Nunns appealed, and in 2016 this court reversed the judgment, finding that the Nunns stated valid causes of action for negligence and violation of the implied covenant of good faith and fair dealing. (See Nunn v. JPMorgan Chase Bank, N.A. (May 13, 2016, A139718) 2016 WL 2793003 [nonpub. opn.] ( Nunn I ).) This court's appellate opinion was followed by a remittitur filed in the superior court on July 18, 2016. The following month, Chase sold the Napa house in a foreclosure sale, in which Chase itself was the highest bidder and acquired the property. In April 2017, the Nunns filed a notice of lis pendens against the property, giving any potential purchaser notice that it was subject to litigation.

Under section 583.320, the Nunns had until July 18, 2019 to bring their case to trial, which was three years from the date the remittitur was filed in the superior court. Meanwhile, the parties resumed pre-trial activities, which included amending pleadings, filing demurrers, and conducting discovery. In March 2019, the Chase Defendants filed a case management conference statement in which they advised the court of their intent to complete discovery by "Summer 2019" and to file a motion for summary judgment prior to trial.

On May 16, 2019, a case management and trial setting conference was held before the Honorable Victoria Wood without a court reporter. The minutes from this hearing indicate that the parties "apprised" the court that the matter was ready to be set for trial and a trial date was set for January 13, 2020.

On August 30, 2019, with the January 2020 trial date pending, the Chase Defendants moved to dismiss the Nunns’ case pursuant to section 583.320 on the ground that the three-year deadline for bringing the case to trial had passed. Defendants argued dismissal was mandatory because they had not stipulated or agreed in open court to extend the three-year deadline. The Nunns opposed this motion on various grounds: compliance with the statutory deadline was impracticable due to the death of their former counsel and their own illnesses; the Chase Defendants were estopped from seeking dismissal because they abused the discovery process; the court's calendar precluded setting an earlier trial date; and the trial deadline was reset by a pleading amendment changing the gravamen of their complaint.

On September 26, 2019, the Honorable Monique Langhorne dismissed this action, finding that the Nunns failed to carry their burden of establishing a statutory exception to the three-year mandatory dismissal statute. In December 2019, the Nunns’ attorney, Ronald Freshman, sought permission to withdraw as counsel, which was granted on January 14, 2020. On January 30, the court entered a judgment of dismissal with prejudice and notice of entry of judgment was given on February 18, 2020.

The Nunns, with the assistance of new trial counsel, filed two post-judgment motions on February 18, 2020. They filed a motion to correct the minutes of the May 16, 2019 hearing, seeking to have the minutes reflect that the January 2020 trial date was set "by the agreement of the parties and to accommodate [the Chase Defendants’] request for a trial date sufficiently in the future to take deposition discovery and bring a motion for summary judgment." Opposing this motion, the Chase Defendants argued the correction requested by the Nunns was "improper" because there was no evidence that the Chase Defendants "expressly agreed to waive Plaintiffs’ deadline" for bringing their case to trial.

The Nunns also filed a motion for a new trial on the ground that their case should not have been dismissed because the trial date was set pursuant to an agreement between the parties, which was enforceable under section 583.330. The Nunns argued that, even if the record was not corrected to reflect this agreement, theories of waiver or estoppel extended the deadline for bringing the case to trial. In their opposition to this motion, the Chase Defendants admitted requesting a trial date that would allow them to conduct further discovery and move for summary judgment, but they argued this fact was irrelevant because the Nunns did not object to the trial setting or obtain a waiver of the statutory deadline.

On March 13, 2020, Judge Langhorne denied the Nunns’ motion to correct the minutes, treating it as an improper motion for reconsideration of her September 2019 order of dismissal. On April 3, 2020, the court denied the Nunns’ new trial motion for "the reasons set forth in defendant[s’] opposition." On June 1, 2020, the Nunns filed the instant appeal from the judgment and the orders denying their motions to correct the record, and for a new trial.¹

On June 1, 2020, the Chase Defendants filed a motion in the superior court to expunge the lis pendens the Nunns had filed against the property. The court granted the expungement motion and ordered the lis pendens expunged effective August 28, 2020, giving the Nunns time to seek an appellate remedy. On August 26, 2020, the Nunns filed a petition for writ of mandate in this court, seeking an order directing the trial court to vacate its order expunging the lis pendens.

The Nunns, who are both 80 or nearly 80 years old, filed a motion for calendar preference, a motion for a stay of the order expunging the lis pendens, and a motion to consolidate their writ petition with their appeal. We granted the stay pending further order of this court, granted the motion to consolidate, and set an expedited schedule for briefing and oral argument. Unable to obtain a transcript for dispositive hearings, the parties proceed on appeal in part by way of a settled statement of proceedings had on May 16, 2019 and September 26, 2019, as certified by the superior court on July 14, 2020. (See Cal. Rules of Court, rule 8.137.)

DISCUSSION

I. The Parties Agreed to Extend the Mandatory Trial Deadline

The Nunns contend the judgment dismissing this action under section 583.320 must be reversed because the statutory deadline for bringing their case to trial was extended to January 13, 2020 pursuant to section 583.330.

We review a judgment of dismissal under section 583.320 for abuse of discretion. ( Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100, 199 Cal.Rptr.3d 137, 365 P.3d 904.) Under this standard, " ‘[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ " ( Ibid . ) Thus, while we review the trial court's order for abuse of discretion, to the extent our decision requires us to construe sections 583.320 or 583.330, the de novo standard of review applies. ( Gaines , at p. 1100, 199 Cal.Rptr.3d 137, 365 P.3d 904 ; see Williams v. Superior Court (2017) 3 Cal.5th 531, 540, 220 Cal.Rptr.3d 472, 398 P.3d 69.)

Section 583.310 sets forth the requirement of bringing a case to trial in five years, and section 583.320 lays out the three-year deadline following appeal and remand. Dismissal is mandatory for a violation of either statute absent a statutory exception. ( § 583.360, subd. (a).) While this case was dismissed under the three-year statute, we also consider cases applying the five-year statute because the same policies apply to both statutes. (See e.g., Hattersley v. American Nucleonics Corp. (1992) 3 Cal.App.4th 397, 401, 4 Cal.Rptr.2d 331.)

The Nunns rely on an exception to the mandatory dismissal statutes, which allows parties to stipulate to...