Metropolitan News-Enterprise


Thursday, January 19, 2017


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C.A. Revives Alta Dena Heirs’ Suit Against Buchalter Nemer

Case Was ‘Brought to Trial’ When Prospective Jurors Were Sworn, Justices Say




The statutory requirement that a lawsuit be “brought to trial” within five years of the filing of the complaint is satisfied if a panel of prospective jurors is sworn before the deadline, the Fourth District Court of Appeal ruled yesterday.

Div. Three reinstated a suit by members of the Stueve family, which founded Alta Dena Dairies, charging the law firm of Buchalter Nemer and others with fraud and negligence. Orange Superior Court Judge Robert J. Moss erred in ruling that the five-year period expired during voir dire because a jury had not been “impaneled and sworn” to try the case, the panel held.

The Stueve litigation has spanned several years and a number of Court of Appeal opinions. The essence of the allegations, as explained in one of the prior opinions, is that the family’s attorneys swindled the plaintiffs out of millions of dollars over a period of years.

The complaint was filed on Sept. 24, 2010. One of the defendants, the law firm of Berger Kahn, was dismissed before trial, but that ruling was overturned in Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303.

Voir Dire Questions

Jury selection began on Sept. 21, 2015. A panel of 75 prospective jurors was sworn to answer voir dire questions truthfully, and questioning began and continued for three days.

On Sept. 23, Moss continued the questioning until the following Monday, Sept. 28, due to scheduling conflicts. When court resumed on that date, the defendants moved to dismiss under the five-year statute.

Moss granted the motion, citing Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717. The high court held in that case that when trial is by jury, “the case is brought to trial when the jury is impaneled and sworn.”

Moss terminated the action as to all defendants except Berger Kahn, as to whom the statute had been tolled due to the prior appeal. In addition to challenging Moss’s interpretation of the “brought to trial” requirement of Code of Civil Procedure §583.310, the plaintiffs argued that the prior appeal tolled the statute as to all defendants, an issue the Court of Appeal found unnecessary to resolve.

Narrow Definition

Justice Eileen Moore, in her opinion for the appellate panel, said the trial judge defined the terms “impaneled” and “sworn” too narrowly. She cited Black’s Law Dictionary, which defines “impaneled” as “ascertaining who shall be the proper jurors to sit in the trial of a particular case” and noted that “sworn,” while not defined in the jury selection statutes, “generally means providing an affirmative response to an oath or affirmation.”

Thus, she reasoned, by the time the jury is finally chosen and hears the evidence, the jurors will have been sworn twice—first to truthfully answer questions on voir dire, and then to “well and truly try the cause now pending.” That the second oath might be administered after the five-year period has run “is of no consequence,” the justice said, because the case has already been “brought to trial.”

Accordingly, “a jury is impaneled when the jury trial panel of prospective jurors is assembled in a courtroom for the purposes of voir dire,” Moore wrote.

She elaborated:

“We note that the word ‘panel’ is used consistently throughout the statutes and refers exclusively to the ‘prospective juror[s],’ not the final ‘trial jurors.’  Further, we conclude that a panel is sworn when the court (usually the court clerk) administers the initial oath of truthfulness and the panel collectively responds, ‘I do.’  Although the actual trial jurors will ultimately be sworn again—this time to try the cause—that does not negate the fact that the panel was sworn at the beginning of voir dire.”

The case is Stueve v. Buchalter Nemer, 17 S.O.S. 219.


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