Filed 2/11/20 Fong v. Hoek CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

SYLVIA S.Y. FONG,

Plaintiff and Appellant,

v.

ERIC HOEK,

Defendant and Respondent.

B286485

(Los Angeles County

Super. Ct. No. SC114465)

APPEAL from a judgment of the Superior Court of Los Angeles County, Cary H. Nishimoto, Judge. Reversed.

Kirkland & Ellis, Michael Shipley and Allison Ozurovich for Plaintiff and Appellant.

Daniels, Fine, Israel, Schonbuch & Lebovits, Erin O. Hallissy, Shannon M. Popovich and Mark Israel for Defendant and Respondent.

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In 2011, Sylvia S.Y. Fong sued Erik Hoek. In 2017, the trial court dismissed Fong’s action for failure to bring it to trial within five years, under Code of Civil Procedure section 538.310. Fong appeals, contending that a bifurcated proceeding constituted a partial trial for the purposes of satisfying section 538.310. We agree and reverse the judgment.

BACKGROUND

In 2009, Fong was injured in a car accident involving Hoek. On October 12, 2011, Fong sued him for negligence. Thereafter, Fong made an offer under section 998. Although Hoek claimed he had accepted the offer, Fong denied there had been valid acceptance. After the trial court denied Hoek’s motion to enforce the settlement, Hoek amended his answer to assert settlement as an affirmative defense. Hoek later moved for summary judgment on the ground there was a settlement. The trial court denied the motion, finding a triable issue of material fact.

The parties agreed to bifurcate and to adjudicate the affirmative defense of settlement at what the parties and trial court referred to as a bench trial. Witnesses testified and exhibits were admitted at the proceeding, which was conducted on February 3, 2015. After, the trial court found there was no settlement. The trial court signed a “Judgment Re Phase 1 of Bifurcated Trial Re Issue of Settlement,” (capitalization omitted) which stated that the matter “came regularly for a bifurcated bench trial” on the affirmative defense of settlement.

Thereafter, little happened in the case until July 19, 2017, when Hoek moved to dismiss the lawsuit, as five years had passed since Fong filed the complaint. The trial court granted the motion, finding that whether a settlement had occurred was not an issue on the merits of Fong’s cause of action and was not a determination of nonnegligence. Likening the proceeding to something “in the nature of a pretrial 402 hearing,” the trial court found it was not a trial or the start of one. Because the action then “remained without forward progress” until the five-year limitations period expired without justification or excuse, the trial court dismissed it.

Thereafter, Fong moved for a new trial, which essentially reargued the motion to dismiss. She repeated that the bifurcated proceeding constituted a trial for the purposes of satisfying the five-year limitations period. The trial court denied the motion.

DISCUSSION

Public policy favors expeditious resolution of litigation. (Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal.App.4th 1396, 1404.) To further that policy, “[a]n action [must] be brought to trial within five years after the action is commenced against the defendant.” (§ 583.310.) If it is not brought to trial in that time, then the court shall dismiss the action on its own or the defendant’s motion. (§ 583.360, subd. (a).) We review for an abuse of discretion a trial court’s decision to dismiss an action under section 583.360, subdivision (a). (Sagi Plumbing v. Chartered Construction Corp. (2004) 123 Cal.App.4th 443, 447 (Sagi).) However, whether a proceeding was a trial for the purposes of the dismissal statute is an issue we review independently. (Rel v. Pacific Bell Mobile Services (2019) 33 Cal.App.5th 882, 889.)

Generally defined, a trial is an adversarial proceeding to determine a contested issue arising out of the pleadings in which a fact or conclusion of law is maintained by one party and controverted by the other. (Lakkees v. Superior Court (1990) 222 Cal.App.3d 531, 536.) An action is brought to trial when the jury is sworn or, in a bench trial, when the first witness is sworn. (Hartman v. Santamarina (1982) 30 Cal.3d 762, 765.) A bifurcated proceeding on defenses also constitutes a trial. (See § 597.) Section 597 provides that a trial court may hold a “trial” on a defense that the action is barred by the statute of limitations, by a prior judgment, or that another action is pending upon the same cause of action, or that “sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof.” (Accord, § 598 [court may order trial of any issue or any part thereof to precede trial of any other issue or part thereof].)

This is what occurred here. Hoek’s answer, which is a pleading (see § 422.10), raised settlement as an affirmative defense. The defense constituted a bar to further prosecution of the action. (§ 597.) The trial court held a bifurcated trial on that defense. At the proceeding, exhibits were introduced and witnesses were sworn, both hallmarks of trial. (See, e.g., In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 255–256.) The proceeding therefore met the basic definition of trial (an adversarial proceeding to determine a contested issue arising out of the pleadings) and fell under section 597. That is, the proceeding determined a disputed issue raised in the answer, whether the parties entered a valid settlement. As such, the proceeding satisfied the five-year statute.

Although they do not involve trial on affirmative defenses under section 597, other cases have found that partial trials or bifurcated proceedings can satisfy the five-year limitations period. Mussat v. Superior Court (1936) 16 Cal.App.2d 291, 292 was an accounting action. The trial court appointed a referee to perform an accounting. The referee’s report was offered at what was referred to as a “ ‘further trial’ ” where, it appears, the report was rejected. (Ibid.) Additional hearings were conducted at which witnesses were sworn and exhibits were introduced. Mussat found that these “partial hearings were sufficient to take the case out of the statute though it may be conceded that, aside from the documentary evidence received, the proceedings may not have contributed materially to a final determination of the issues,” as the report was rejected. (Ibid.) There, the partial hearings failed to advance the case significantly; yet, the hearings still satisfied the five-year statute.

In Patapoff v. City of Los Angeles (1959) 171 Cal.App.2d 635, 637 to 638, the plaintiff sued the Department of Water and Power for damages for trespass. The trial court consolidated that action with another brought by the Schworers against plaintiff involving ownership of the same property at issue in plaintiff’s case. (Id. at p. 638.) The trial court tried the Schworers’ action first to determine the plaintiff’s interest in the property, reserving trial on the trespass action. (Id. at p. 645.) Because an issue to be proved in an action for trespass and damage to real property is the plaintiff’s interest in that property, trial of the Schworers’ action constituted a partial trial for the purposes of satisfying the five-year limitations period. (Id. at p. 644.) In In re Marriage of Macfarlane & Lang, supra, 8 Cal.App.4th 247, 250 to 251, the trial court bifurcated the dissolution proceedings, reserving jurisdiction over certain issues. The trial court held a bifurcated trial concerning how to characterize property. (Id. at pp. 251, 254–255.) This constituted a partial trial for the purposes of the five-year statute. (Id. at p. 255.)

Nor does Sagi, supra, 123 Cal.App.4th 443 compel a different result, as Hoek suggests. The plaintiff in Sagi, a subcontractor, sued the general contractor, alleging three causes of action for breach of contract based on three separate, unrelated projects. (Id. at p. 445.) The parties agreed to try one cause of action first, and to try the remaining two causes of action thereafter. The majority held that trial on the one cause of action did not constitute a trial for the purposes of the statute because that first proceeding did nothing to resolve any of the issues in the remaining two causes of action. (Id. at p. 449.) “Consequently, the bifurcation could not simplify or expedite their resolution.” (Ibid.) Justice Epstein dissented. He focused on the term “action” in the statute and found that the common sense meaning of that term is the lawsuit, not its component parts. (Id. at p. 452.) He therefore would have found that the action was brought to trial when the cause of action selected to be tried first came to trial, thereby satisfying the five-year statute. (Ibid.)

Sagi, supra, 123 Cal.App.4th 443 does not concern trial of a defense under section 597, and is therefore of limited utility here. In any event, we agree with Justice Epstein. As he observed, the Sagi majority’s rule rendered the five-year statute dependent “on fine distinctions whether the cause of action first tried had some impact on those not yet tried,” which would lead to a “regime rife with opportunities for mischief” and would discourage courts and counsel from managing cases through bifurcation. (Sagi, at p. 452.) Here, section 597 provides for bifurcated trials on defenses, thereby furthering the policy of encouraging early disposition of cases.

DISPOSITION

The judgment is reversed. Sylvia S.Y. Fong is awarded her costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.