07AS00311

Linda A. Boblitt vs. Steven B. Boblitt

Nature of Proceeding: Motion to Dismiss

Filed By: Boblitt, Steven B.

Self-represented Defendant Steven Boblitt’s Motion to Dismiss the Self-represented
Plaintiff’s Second Amended Complaint (“SAC”) is DENIED.

Plaintiff’s Second Amended Complaint alleges tort causes of action for assault and
battery; domestic violence; intentional infliction of emotional distress; negligence; and
negligent infliction of emotional distress against her former husband Steven.

Plaintiff’s Request for Judicial Notice is GRANTED.

Defendant Steven Boblitt (hereinafter “Steven”) moves to dismiss the action based on
plaintiff Linda Boblitt’s (“Linda”) failure to bring the matter to trial within five years
(C.C.P., sec. 583.310) and failure to bring the matter to trial within three years of the
remittitur (C.C.P., sec. 583.320)

This action was filed on Jan. 22, 2007. Defendant Steven’s motion for judgment on
the pleadings, which was based on the collateral estoppel and res judicata effect of the
prior holdings of the family law court, was granted by this court on Dec. 26, 2008.
Notice of Entry of Judgment was served Jan 23, 2009.

Plaintiff Linda filed her Notice of Appeal on March 11, 2009. The Third District Court of
appeals reversed and remanded the action, holding, in part that “a request for spousal
support in a marital dissolution proceeding is not based on the same primary right as a
tort action based on domestic violence and therefore a party is not necessarily
precluded from seeking damages for alleged acts of domestic violence and also asking a family law court to consider those same acts of domestic violence in awarding
spousal support. Because this tort action for domestic violence was not precluded by
the judgment in the dissolution proceeding, we will reverse the judgment in this action
and remand the case with instructions to the trial court to deny Steven’s motion for
judgment on the pleadings.” The remittitur was issued on Feb. 8, 2011.

Exceptions to dismissals under either the five-year provision of section 583.110 or
dismissals under the three-year provision of C.C.P., sec. 583.340 may be found where
it was impracticable and/or impossible to timely bring the action to trial. Good v. State
(1969) 273 Cal. App. 2d 587, 591.

What is impossible, impracticable, or futile is determined in light of all the
circumstances of a particular case, including the conduct of the parties and the nature
of the proceedings. The critical factor is whether the plaintiff exercised reasonable
diligence in prosecuting its case. (Baccus v. Superior Court (1989) 207 Cal.App.3d
1526, 1532.) The statute must be liberally construed, consistent with the policy
favoring trial on the merits. (Ibid.)

Generally, the determination whether prosecution of an action was impossible,
impracticable, or futile is a matter within the trial court’s discretion and will not be
disturbed on appeal unless an abuse of discretion is shown. (Hughes v. Kimble (1992)
5 Cal.App.4th 59, 66-67.) Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co.
(1994) 24 Cal. App. 4th 247, 251-252.

Here, plaintiff contends that the years of physical and emotional abuse suffered during
her marriage to defendant has left her with PTSD. She has submitted her psychiatrist’s
representations that she has been in his care since 2007, is suffering from PTSD
relating to severe physical and emotional abuse during her marriage, including major
depression, panic attacks and bipolar I disorder, which psychiatric symptoms have
worsened in the several months before November 2013, affecting her ability to focus
and get things done in a timely manner.

Plaintiff submits her declaration and those of two friends which represent to the Court
that her therapy has progressed to the point where she is now able to prosecute her
case.

In opposition, Steven again relies upon the Statement of Decision of the family law
court from April 2008 (more than four years ago) to purport to establish plaintiff Linda’s
mental health in the last three to five years is good. As the Court of appeals has
already made clear, the family judge’s opinion on a motion to establish the division of
property and support orders, does not conclusively establish the torts alleged in the
complaint, nor Linda’s recent mental health.

The Court notes that the Presiding Judge has granted Plaintiff’s Dec. 6, 2013 ex parte
application to set a trial date on shortened time, and trial is currently set for Jan. 20,
2015 and a settlement conference has been calendared for Dec. 9, 2014.

In the exercise of its discretion, the Court finds that plaintiff’s mental health issues,
arising out of the alleged abuse by defendant during their marriage, made it
impossible, impracticable, or futile for plaintiff to bring the action to trial within three
years of the remittitur or five years of the filing of the complaint. The motion to dismiss
is denied. Defendant shall file and serve his responsive pleading to the Second Amended
Complaint not later than Monday, June 30, 2014. CCP sec. 418.10(b)

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.