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Dismissal of Action Not Timely Brought to Trial Was Mandatory, Court of Appeal Declares
By a MetNews Staff Writer
The Court of Appeal for this district has concluded that a judge unreasonably declined a motion by a lawyer and his firm to dismiss a cross-complaint brought against them by a former client where the five-year period for bringing an action to trial had expired and the plaintiffs had voluntarily dismissed their action.
Div. Seven on Thursday, in a concluded unpublished opinion, granted a petition for a writ of mandate sought by Russell Berney and Berney Law Corporation to compel the Los Angeles Superior Court to dump cross-action brought by Robert G. Bartlett.
Both the complaint for fees and the cross-complaint for declaratory were brought in 2017; the parties had stipulated that the five-year period prescribed by Code of Civil Procedure §583.310 be extended to Feb. 29, 2024; on March 29, 2024, Berney and his firm made their motion to dismiss. On June 10, 2024, veteran Judge Mel Red Recana, a former presiding judge of the now-defunct Los Angeles Municipal Court, denied the motion, saying:
“In considering the totality of the circumstances, the court finds that the cross-action is not subject to dismissal under the five-year dismissal statue. In determining whether an exception applies under Section 583.360, it is important for the court to examine the conduct of the parties and the nature of the proceedings.”
Impractical to Sever
He declared:
“[C]ross-defendants’ underlying action and Bartlett’s cross-action present interrelated and interconnected factual and legal issues….Thus, considering it is policy to favor trial on the merits, it would be impractical to sever the two actions and allow only one to be heard.”
In Thursday’s decision, Div. Five’s presiding justice, Gonzalo Martinez, pointed out:
“…Berney had sought dismissal of his complaint. The dismissal was entered the next day by the clerk. Under these circumstances, there were not two actions to be concurrently resolved at trial.”
Cross-Defendants’ Conduct
Recana also found that “it was impracticable to bring the cross-action to trial based on cross-defendants’ tactics near the time of trial” in moving, successfully, for judgment on the pleadings on two of Bartlett’s causes of action.
Martinez said:
“[W]e conclude there is no factual support for an implied finding of a causal connection between Berney’s ‘tactics near the time of trial’ and Bartlett’s failure to move the case to trial….Berney’s motion for judgment on the pleadings was timely filed and meritorious.”
He noted that the time spent on “ordinary incidents of proceeding” such as motions do not render it “impracticable” to meet the five-year time limit.
The case is Berney Law Corp. v. Superior Court, B339580.
Gregory Bodell of the Century City firm of Kozberg & Bodell represented Berney and his firm, joining with Berney. Acting for Bartlett was Santa Monica attorney William Samoska.
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