GRANT BEALL V. RONALD L. WOLFE AND ASSOCIATES, INC.
GRANT BEALL V. RONALD L. WOLFE AND ASSOCIATES, INC.
Case Number
18CV03820
Case Type
Hearing Date / Time
Wed, 11/01/2023 - 10:00
Nature of Proceedings
Defendant’s motion for decertification of all classes; Plaintiff’s motion to redefine classes and/or modify the class certification order, etc.; Plaintiff’s motion to extend the five-year trial date
Tentative Ruling
Ron Bochner for Plaintiff and the class
Stanley M. Gibson/Andrew I. Shadoff of Jeffer Mangels Butler & Mitchell LLP and Robert M. Freedman of Freedman Law Firm for Defendant Ronald L. Wolfe and Associates, Incorporated, dba Wolfe & Associates, Property Services
HEARINGS
Defendant’s motion for decertification of all classes.
Plaintiff’s motion to redefine classes and/or modify the class certification order and/or for leave to amend to obtain new class representatives/set aside/continue trial date and extend discovery cut offs to new date.
Plaintiff’s motion to extend the five-year trial date
RULINGS
The Court will grant Wolfe’s motion for decertification of all classes it previously certified, will find that Plaintiff Beall is not an adequate class representative, will deny leave to amend to substitute an appropriate class representative, and will dismiss the class claims.
The Court will deny Beall’s motion to redefine classes, modify the certification order, for leave to amend, and to set aside and continue the trial date.
The Court will also deny Beall’s motion to extend the period within which to bring the action to trial, finding that it has no authority or ability to do so, and that it is not impossible, impracticable, or futile to proceed to trial within the existing statutory period to bring the action to trial.
The personal claims of Plaintiff Beall will proceed to trial on December 6, 2023; trial briefs; witness lists; exhibit lists; in limine motions; jury instructions and jury verdict form [if defense still wants a jury] are due 11/29/23. Beall never posted jury fees. Wolfe did post jury fees on 10/25/18; does Wolf waive a jury?
BACKGROUND
This action was commenced on August 3, 2018, with the filing of Plaintiff’s original complaint. The operative pleading is Plaintiff’s Fourth Amended Complaint (4AC), filed February 4, 2022. It alleges that Plaintiff Grant Beall (Beall) was a tenant of 6606-6608 Del Playa, HSE, in Isla Vista, owned by Defendant Ronald L. Wolfe and Associates, Incorporated, a California Corporation dba Wolfe & Associates, Property Services (Wolfe).
The 4AC alleged that Beall’s tenancy was subject to Civil Code section 1950.5, including subdivision (f)(1), and was served with a pre-termination notice which appeared to be a form notice, which did not contain a notice that:
“State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.”
Due to unforeseen circumstances, Beall left personal property at the residential unit, which was taken and destroyed, rather than stored. Wolfe maintained no policy regarding notice or storage of property left by residential tenants, and maintained a policy that items left in certain parts of units would be destroyed if left, without notice or storage.
The 4AC alleged further that Wolfe represented in the contract and in the pre-termination notice that it may impose a “vendor oversight fee” (VOF), in the form of a 10% administrative fee of the amount paid to cleaners, maintenance or contractors to repair resident-related damage, for managing, overseeing, coordinating, and administering repairs and/or cleaning. Beall alleged the VOF provision is inconsistent with limitations set forth by Section 1950.5(g)(b)(2) and (3), which limits deductions from the security deposit to the repair of damages caused by the tenant, and cleaning to the same level of cleanliness which existed at inception of the tenancy, and not for managing or oversight of such things. It is therefore apparently inconsistent with waiver provisions under Civil Code section 1953. The notice contained no itemization or justification suggesting why such fees would be reasonable regardless of actual costs incurred.
The 4AC alleged it does not appear Defendants’ tenant security deposit itemization is proper, in that it does not say how ordinary wear and tear is taken into account, and deductions are made from security deposits without properly accounting for ordinary wear and tear and are otherwise deficient in documenting charges as required by Civil Code section 1950.5(g)(2).
Beall alleged further that ¶ 32 of the lease contains a waiver/release/indemnification provision, under which Beall and other tenants were required to waive, release/indemnify Wolfe even for harms Wolfe caused, including violations regarding storage of property. Beall believes the clause is unenforceable, and there exists an actual controversy regarding its enforceability.
The 4AC alleged further that, based upon an examination of samples provided by Wolfe, it appeared there are uniform provisions in leases regarding:
(a) threats of credit reporting (either with UD registry, or with Core Logic or Experian), but no indication that Wolfe actually has agreements or actually exercise such treats as made, which is deceptive;
(b) there are additional waivers of rights made impermissible by Civil Code section 1953 in the joint and several provision (¶ 31 of Beall lease; ¶¶ 20, 22 in other leases), and in the renters insurance provision (¶ 32 of Beal lease; ¶¶ 19, 21, 31 in other leases);
(c) a Prop 65 provision (¶ 39 of Beall lease; ¶¶ 14, 30, 32 of other leases), which is unclear whether it its intended to meet Wolfe’s obligations under Health and Safety Code section 25249.6, or whether it provides proper notice or is deceptive in stating what it does and whether Wolfe has complied or will comply with the Prop 65 notice requirement;
(d) similar provisions about late and 3-day notice fees (¶ 25 of Beall lease; ¶¶ 15, 17 of other leases), with no demonstration of how such fees comport with Civil Code section 1671, or whether they are reasonably calculated to show properly liquidated damages, or are excessive and unjustified liquidated damages or otherwise unconscionable under civil Code section 1670.5; and
(e) charging from the deposit for late and related fees, when they are not accurate deductions.
The 4AC alleged further that Wolfe claimed that some charges for hauling were for items placed in the exterior of residence for garbage collection at the end of the lease, but the leases indicated that garbage collection is either a landlord cost or is already separately borne by tenants at regular rates, not ones they are liable to hauling companies for at the end of the lease. There was no notification nor consent by tenants to a charge for hauling off items known by Wolfe to be garbage. There is insufficient space to place garbage in dumpsters at the end of the leasehold, particularly for student rentals, because all such tenancies terminate at about the same time, and Wolfe insists on a hastened turnaround of property maintenance and does not store property.
The 4AC then made class allegations, after which it alleged causes of action for (1) violation of 1950.5(f)(1) for failure to disclose right of storage/failure to store/conversion; (2) violation of Sections 1953.5 and 1953 for improper imposition of vendor oversight fee; (3) violation of Sections 1950.5(g) and 1953 for failure to properly itemize security deposit deductions; (4) violation of the Unfair Business Practices Act (based upon a variety of alleged wrongs, including failure to provide notice of storage provision, destruction of property taken from unit, security deposit itemization issues, ¶ 32 of the lease regarding indemnification; lease provisions regarding late and 3-day notice fees as being improper liquidated damages under Civil Code section 1670.5, deduction of late and related fees from security deposit, and hauling charges); (5) declaratory relief (regarding the validity and enforceability of lease provisions regarding indemnification [¶ 32], the Prop 65 notice [¶ 39], and credit reporting [¶26]); and (6) violation of the unfair business practices act—general public injunctive relief, which Beall alleges is being asserted as an alternative if a class action cannot be maintained as to any class.
On June 9, 2022, Beall filed his motion for class certification, seeking certification of nine classes, most of which were untethered to causes of action alleged in the complaint. Wolfe opposed the motion.
This Court granted in part and denied in part the motion for class certification, after a hearing ultimately held on January 18, 2023. Certification was denied completely with respect to Beall’s proposed Class 1—Lease Provision Class, Class 2—Storage Notice Class, Class 3—Conversion and Hauling Class, Class 6—Ordinary Wear and Tear Class, and Class 9—Constitutionality Class. Certification was granted in part with respect to proposed Class 4—VOF Class, Class 5—Late Fee Class, Class 7—General Maintenance Itemization Class, and Class 8—Vendor Material and Supply Class. That certification was limited to declaratory relief with respect to Wolfe’s legal liabilities and possible injunctive relief to compel Wolfe’s practices to conform to law in the event that they were found (via declaratory relief) to have been contrary to law and was denied to the extent that damages or restitution were sought. The Court also modified the class definitions—including subdividing Class 5 into subclasses 5(a) (related to the propriety as liquidated damages of late fees charged by Wolfe) and 5(b) (related to the propriety as liquidated damages of the fees charged for preparation and service of Three-Day Notices). The denial of certification as to damages or restitution with respect to Classes 4-5 and 7-8 was largely based upon unascertainability of the damage/restitution class, lack of commonality, and/or predominant individualized questions, many of which would require resolution on a tenancy-by-tenancy basis throughout all of Wolfe’s tenants during the class periods.
Case No. 22CV01662
During the pendency of this action, and prior to Beall’s filing of the certification motion, Beall on April 29, 2022, filed a second complaint against Wolfe, which alleged causes of action for breach of contract, fraud, warranty of habitability, and two counts of unfair business practices—one seeking declaratory relief, and one seeking general public injunctive relief. Factually, the action was based upon Beall’s claims that the garage space for which a Lease Addendum prohibited overnight habitation and only permitted use as a day-use storage, office, or recreation space, did not have a permit for any livable use, and was a portion of the premises for which Beall paid rent. Since it had no occupancy permit, and was alleged to be an illegal garage conversion, Beall contended that the premises were not habitable. The complaint sought damages, restitution, punitive damages, declaratory relief, injunctive relief, and attorneys’ fees (under various theories). A First Amended Complaint was filed prior to service upon Defendant.
The Court sustained Wolfe’s demurrer to the First Amended Complaint, with leave to amend as to each cause of action. Beall’s Second Amended Complaint omitted the previously-alleged causes of action for fraud and declaratory relief. The demurrers to the Second Amended Complaint were sustained, without leave to amend, with respect to the breach of contract and breach of the implied warranty of habitability causes of action, on the same bases that the demurrers to those causes of action as alleged in the FAC had been previously sustained (i.e., with respect to breach of contract, on the basis that there was no breach of the lease given that the garage was not part of the leased premises for which the tenants were paying rent, and there was no allegation of how the tenants could possibly have been damaged, either by using or not suing the garage, simply because it was not permitted for what Beall characterized as “livable uses”; and as to breach of implied warranty of habitability cause of action on the basis that Beall had not identified any actual condition of the garage that would impact its habitability, as the term is understood within the context of such a cause of action). The Court sustained the demurrers to the two unfair business practices causes of action, on the basis that they were derivative of the breach of contract and breach of the implied warranty of habitability causes of action, and Beall had alleged insufficient facts to show he had standing to pursue the UCL claims, in that there was no showing that he had suffered injury in fact and lost money or property as a result of Wolfe’s alleged conduct. Because Beall represented that he believed he could state stand-alone causes of cation for violation of the UCL, the Court permitted him leave to amend those causes of action only.
Beall’s Third Amended Complaint contained only the two causes of action for unfair business practices. After a hearing on May 10, 2023, the Court sustained Wolfe’s demurrer to the Third Amended Complaint, without leave to amend. In doing so, the Court found that Beall had no standing to assert the UCL claims, since (a) he had not suffered any economic damage since the leased premises for which rent was paid did not include the garage, and (b) that his claim of justifiable reliance on the promise of legal use of the garage failed because Beall never alleged how he ever actually used the garage, or even if he used it, without which any such injury in fact he claimed to have suffered was conjectural or hypothetical, rather than concrete and particularized in affecting Beall in a personal and individual way, as required by law.
Beall subsequently filed a motion for reconsideration of the ruling sustaining the demurrer without leave to amend, and seeking to file a Fourth Amended Complaint, which was also styled as a class action. In that motion, Beall contended that he could allege that he used the converted garage as a bedroom, with Wolfe’s knowledge, and that he paid rent based upon his understanding that it could be so used, among other allegations. The Court denied the motion for reconsideration on June 28, 2023, finding that it failed to meet the requirements of such a motion in multiple respects, including that the facts he proposed to alleged were not “new or different facts, circumstances or law,” Beall’s motion had not explained why they were not previously alleged, the motion failed to include the declaration required by Code of Civil Procedure section 1008(a), and the information in the belatedly-submitted declaration revealed that the failure to earlier allege required facts was a tactical decision by counsel, among other reasons.
Judgment was entered in Case No. 22CV01661 on September 6, 2023.
- Wolfe’s motion for decertification of all classes:
Wolfe filed the current motion on August 24, 2023. The motion set forth the history of Beall’s tenancy; the progression of the litigation through Beall’s Fourth Amended Complaint; Beall’s filing of the certification motion after being ordered to do so by Judge Geck; that the certification motion sought certification of nine classes; primarily for damages but expressly seeking certification of two classes for declaratory and injunctive relief; how Wolfe did not challenge standing for one of the claims because of the multiple additional defects with the claim; this Court’s certification order and the lack of rulings based upon Beall’s lack of ongoing relationship with Wolfe or his lack of standing with respect to the classes that were certified for declaratory relief; the subsequent dismissal by the Court of what Wolfe describes as Beall’s “tag-along” lawsuit (Case No. 22CV01662) which arose out of the same tenancy.
Against that factual and procedural backdrop, Wolfe seeks the decertification of all classes, asserting that the trial Court retains broad discretion to decertify a class if class treatment is inappropriate.
Wolfe first claims that decertification is appropriate because Beall lacks standing to seek declaratory or injunctive relief, and he cannot pursue declaratory or injunctive relief on behalf of a class of which he is not a member. Wolfe asserts that Beall lacks standing because both declaratory relief and injunctive relief operate prospectively, and Beall’s transactional relationship with Wolfe ended in 2018. Declaratory relief does not address past wrongs (Babb v. Superior Court (1971) 3 Cal.3d 841, 848), and where there are no present or future duties under a contract which has terminated, declaratory relief as to the rights and duties under the contract is inappropriate. (Cordoba Corp. v. City of Industry (2023) 87 Cal.App.5th 145, 157.) Wolfe cited Harris v. Itzhaki (9th Cir. 1999) 183 F.3d 1043, 1047, for the proposition that a tenant loses standing to seek declaratory or injunctive relief once they move out of the property. Beall cannot purport to represent any class of which he is not a member. (CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300, 307.) Because damages are no longer recoverable on a class-wide basis, and because Beall lacks standing to pursue declaratory or injunctive relief, the classes should be decertified.
Wolfe also contends that there are changed circumstances to support decertification and dismissal of the class claims, because: (1) The case materially changed when the certification order eliminated damages as the primary relief and certified classes for declaratory or injunctive relief only, causing Beall to lose standing. Standing was not addressed at any length because Plaintiff primarily sought damages for those classes, and it was difficult for Wolfe to understand exactly what Beall sought in his certification motion, because of his jumbled briefing style. (2) The conduct of Beall and his counsel in Case No. 22CV01662 created significant, individualized credibility concerns that did not exist at the time of the certification order, and credibility problems can be an appropriate ground to reject the adequacy of a class representative or class counsel. Beall attempted to mislead the Court in that case because of his tactical decision not to allege facts he knew to be true. (3) In light of the jumbled and incoherent nature of Beall’s operative pleading, the certification of classes for declaratory and injunctive relief rendered the case unmanageable as a class action. It is unclear which causes of action apply to which classes, or what elements Beall will need to establish to obtain judgment in favor of any class, and what burdens apply. Without causes of action underlying the certified class issues, Plaintiff cannot obtain injunctive relief. Plaintiff has never articulated any specific declarations or injunctive relief he is seeking.
Finally, Wolfe contends that Beall and his counsel should not be permitted to further prolong the case by trying to find another class representative—which is what Wolfe expects Beall to request. Wolfe cites Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 847, to support its contention that there is no absolute rule that a trial Court must grant leave to amend to add a new class representative in every case in which a Court concludes that the named Plaintiff is inadequate. In Payton, the case was filed three years before the certification motion, and the Court found that the trial Court could rely on the age of the case in denying the request to find a new class representative. It noted that providing leave to amend makes sense when a Plaintiff is disqualified as a result of a defense strategy to defeat a class action by offering individual relief, a situation that was not present in Payton, and is not present here. Plaintiff is disqualified, not because he originally had standing to pursue declaratory or injunctive relief and then lost such standing, but because he has never had standing to pursue those remedies, because he has not had any business relationship with Wolfe since 2018. Further, he waited almost 4 years to file his certification motion, and only did so after Judge Geck set a deadline to do so. Wolfe contends that the proper result is the dismissal of the class claims, with prejudice.
Beall’s Opposition
Beall contends that the comments the Court made about its class representative did not express any difficulty with his standing, and that “all of the issues regarding declaratory and injunctive relief were raised by the pleadings and in the class certification motion,” and Wolfe should not be permitted to challenge the certification decision.
With respect to standing, Beall notes that he pleaded for both declaratory and injunctive relief under the UCL, which is equitable, and provides the Court with broad discretion in granting relief. He further contends he has standing to pursue UCL claims under Bus. & Prof. Code, § 17203, in that he has suffered injury in fact and has lost money or property as a result of the unfair competition. (Bus & Prof Code, §§ 17203, 17204.) Wolfe cannot argue that the matter is moot, because it presented no evidence that the practices have been corrected, and where practices may recur, injunctive relief is proper. With respect to certification for declaratory relief, the Court made clear that the legality of the charges were in issue, and therefore controversial. He argues that whether a matter is appropriate for declaratory relief is within the trial Court’s discretion. That another remedy is available is insufficient ground to refuse declaratory relief, which is intended to serve a practical end in quieting or stabilizing an uncertain or disputed jural relation. Because there is uncertainty as to whether the law or contract terms have been breached, a declaration of legality is required.
Beall next asserts that Wolfe has not properly justified decertification by showing changed circumstances. He cites Williams v. Superior Court (2013) 221 Cal.App.4th 1353, 1360-1361) for the proposition that decertification requires new law or newly discovered evidence showing changed circumstances and is not a chance for a do-over by a disgruntled Defendant. All of the issues Wolfe challenges were presented in the certification motion. Beall further asserts that the events which occurred in the related case did not constitute changed circumstances to support the decertification in this case. What occurred has nothing to do with his credibility or ability to represent the class.
Beall asserts that Wolfe’s other bases for decertification “mitigate for redefinition and certification of other issues.” He claims (1) the lease provision and other apt classes should be redefined such that it or they can be certified; (2) the Court should confirm that restitution will be ancillary to any injunctive relief; and (3) the Court may modify the classes to make them for restitution even without injunction and should do it for damages.
If the Court finds it necessary, Beall argues that he should be permitted leave to amend to find a new class representative. The issue of Beall’s standing was never raised before, and Wolfe’s delay in raising it without amendment is prejudicial to the class and its rights. Alternatively, the Court should modify class definitions or the class itself to include damages classes and allow the matter to be certified on that basis, as well as for declaratory relief on the remaining controversies. If a motion is necessary, he asks that his opposition be deemed an application to do so, that Wolfe’s motion and reply be deemed the response, and the issue be heard on the date of the hearing.
Wolfe’s Reply
(1) Wolfe first objects that the opposition was untimely and proceeds to reiterate that Beall lacks standing to remain as class representative.
Beall failed to address any authority that provides that declaratory relief is not available where only past wrongs are alleged, and merely argues that the legality of the charges is disputed. That does not give him standing to pursue a class action lawsuit seeking declaratory relief. Further, the fact that declaratory relief is available even if other remedies are available is irrelevant and does not resolve the standing issue. Even Plaintiff’s cited case holds that declaratory relief becomes moot when an event has occurred which deprives the controversy of its life. (Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 530.) Plaintiff fails to dispute he lacks standing to pursue declaratory relief, and that he therefore cannot represent a class seeking declaratory relief.
Wolfe further contends there are sufficient changed circumstances to warrant decertification, including how the certification order effectively changed the scope of the case to one for declaratory relief. While Plaintiff claims the issues were presented in the class certification motion, he does not say where that occurred, and fails to acknowledge that he sought primarily to certify classes for damages, which the Court rejected. Whether or not standing was raised, the Court should exercise its discretion and decertify the classes, since the case is not properly a class action. While Plaintiff continued to justify his pleading tactics in the related case, the Court found them deliberate and tactical, and Wolfe submits they were intended to prolong the meritless litigation in an attempt to create settlement leverage.
Wolfe asserts further that Beall’s untimely and defective requests to reconsider the certification ruling should be denied. The Court should not redefine or certify any additional classes, including for damages, as suggested by Plaintiff. The Court correctly found that Plaintiff failed to meet the burden that class treatment was appropriate for his proposed classes, and there is no basis for reconsideration of that decision. Beall contended that Wolfe’s motion itself suggest the Court should have certified classes as to damages/restitution/disgorgement, but Wolfe does not understand that argument, and denies its motion did any such thing; Wolfe argued against certifying any classes for any purpose. Beall’s proposal that his opposition be treated as a motion would violate Wolfe’s due process rights.
Beall asks the Court to clarify that the injunctive relief contemplated by the certification order could include mandating that Wolfe pay damages to class members in the form of restitution, in an attempt to bootstrap damages onto the certified declaratory relief claims—which was rejected by the Court. The five classes were certified for declaratory relief only, with the potential for injunctive relief compelling compliance with the law, and the Court clearly rejected the requests to certify the classes for restitution or damages.
Beall requested leave to find another class representative but fails to address the authority cited by Wolfe’s motion that demonstrates why no leave to amend here is necessary, where the case is old and he has lacked standing to pursue declaratory or injunctive relief from the inception of the action.
Prior to the scheduled September 27, 2023, hearing date on the decertification motion, the trial Court advised the parties of its intent to continue the hearing to November 1, 2023. Subsequent to that notification, Plaintiff Beall filed two motions, discussed below.
Trial of this action is currently set for December 6, 2023.
(2) Beall’s motion to redefine classes and/or modify the class certification order and/or for leave to amend to obtain new class representatives/set aside/continue trial date and extend discovery cut-off dates
Beall’s motion, filed September 26, 2023, makes multiple claims.
First, it requests the Court to redefine or modify the classes regarding injunctive relief under the UCL, since Beall has standing under the UCL, and the Court has discretion to fashion appropriate equitable relief under the UCL. He therefore seeks a modification to state that injunctive relief is sought only pursuant to the UCL. He also asks that the modification also ensure that restitution is included as ancillary relief, also based upon the trial Court’s broad discretion to fashion appropriate remedies under the UCL.
Second, Beall requests that the Court redefine/modify the classes regarding declaratory relief. The certification order found it unclear with respect to whether there were violations of law with respect to various classes. The rights of tenants and the duties of Defendant, and the constitutionality of lease provisions and Section 1950.5(b), are in question and require a judicial declaration to resolve these uncertain issues. The fact that it is unclear if there are damages is the reason certification is apt for declaratory relief. There is a continuing need to determine the legality of terms which do not result in damage, in order to determine the legality of the terms and to guide future conduct.
Third, Beall asks the Court to redefine or modify the classes that request damages, contending that there does not appear to be any good reason not to do so, since individual damage questions rarely stand as a bar to certification. (Sav-On Drug Stores v. Superior Court (2004) 34 Cal.4th 319, 334, 339-340.) Further, due process does not prevent calculation of damages on a class-wide, aggregate basis. (Bruno v. Superior Court (1981) 127 Cal.App.3d 120, 129, n.4 and other cases.)
Fourth, Beall argues that leave to amend to find a new class representative should be allowed if the Court finds it necessary. Beall quotes language from the Court about Beall that did not express difficulty with his standing. Beall had damages standing, and it appears he also has injunctive relief and declaratory relief standing as asserted above. The issue was never raised before. He reiterates his argument (made in opposition to the decertification motion) about why this mitigates for allowing the class to seek a proper representative.
Fifth, Beall asserts that the continuance of the hearing on the decertification motion provided good cause for continuance of the trial, in that it made it unclear which experts will be necessary, whether a new Plaintiff will be necessary and/or possible for the trial as set, and both may make the parties unable to obtain essential testimony and evidence in time for trial. Beall has asked Wolfe to stipulate to the continuance and was under consideration at the time the motion was filed.
Wolfe’s Opposition
Wolfe first asserts that the untimely/defective request to change the certification should be denied, for four reasons.
First, the death knell doctrine, under which the order denying certification became immediately appealable because it effectively terminates the action as to the class, bars Plaintiff from challenging the Court’s denial of certification because he did not appeal.
Second, the motion is an untimely and defective motion for reconsideration. It was filed 8 months after entry of the certification order, and did not identify any new or different facts, circumstances, or law that the Court could not have earlier considered, instead raising the same arguments the Court considered.
Third, the Court already rejected Beall’s request to certify classes for damages or restitution, and the certification order addressed the requests for damages or restitution for each of the five certified classes. Wolfe does not understand Beall’s argument that there does not appear to be any good reason not to certify the classes that specifically seek damages and specifically request it. The Court already held Beall failed to meet his burden of establishing that class treatment is appropriate for any classes for purposes of damages.
Fourth, there is no basis to change any other part of the certification order. References to generic purposes of declaratory or injunctive relief do not support a request to reconsider and change the certification order. Wolfe also does not understand Beall’s argument that classes should have been certified for declaratory relief because it was unclear whether there had been damages. A failure to meet the burden on certification does not support certification for declaratory relief. The Court never suggested that class-wide declaratory relief would be appropriate for any class for which certification was denied.
Wolfe argues further that Beall failed to demonstrate good cause to continue the 12/6/23 trial date or extend discovery deadlines.
Beall’s Reply
Since Wolfe did not file the motion to decertify until nine months after certification, and after the Court continued the hearing, Wolfe cannot assert the motion was untimely, since it has only itself to blame.
Beall denies that the death knell doctrine applies here, given that it applies where the class action is entirely vitiated by the entire denial of a certification motion, after which the Plaintiff seeks to appeal the decision as being equivalent to a final judgment. Partial certifications are not appealable judgments. Second, the Court has power to modify the class certification order by redefining the class at any time and may also reconsider it when there is a change in circumstances. If the Court determines Beall is inadequate and/or has no standing, that will be sufficient changed circumstance to permit the order to be modified to find a new representative.
If the Court modifies the class definitions or finds Beall not to have standing or to be an adequate representative, or allows restitution to be sought, there would be good cause to continue the trial date.
(3) Beall’s motion to extend the five year trial date
Beall seeks an order extending the five year period to bring the action to trial (Code Civ. Proc., § 583.310), of at least six months. He argues that the Court can extend the period when bringing the action to trial is impossible, impracticable, or futile, pursuant to Section 583.340(c). He argues that if the Court grants any part of Wolfe’s decertification motion with respect to his standing to assert declaratory or injunctive relief on behalf of the class, he is seeking leave find a new class representative, and it will be impossible, impracticable, or futile to bring the claims to trial prior to February 3, 2024, because it may take longer than that to find a new class representative. He argues further that if the Court grants his requests to redefine or modify the class definitions or class certification order, additional discovery will be required, and new experts may have to be brought in. Finally, he contends that if the Court grants his other motion and determines that ancillary restitution is required, and he is required to make a showing of aggregate damages or individual showings, those efforts would also require more discovery and experts.
Wolfe’s Opposition
Wolfe opposes the motion, asserting that Plaintiff has not diligently prosecuted this action through much of its pendency, filing five iterations of the complaint over three-and-a-half years, stonewalling Wolfe’s discovery, and failing to move for certification until June 10, 2022, doing so at that time only because the Court set a deadline to do so. The motion does not establish that it is impracticable to bring the case to trial at any particular time.
Wolfe asserts the 5-year rule is mandatory, subject to narrow statutory exceptions, that Plaintiff bears the burden of establishes. Beall relies only on the impracticability exception, but the critical factor in applying that exception is whether Plaintiff exercised reasonable diligence in prosecuting his case at all stages of the proceedings, which Beall has not. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730; Lauriton v. Carnation Co.(1989) 215 Cal.App.3d 161, 164.) There must also be a causal connection between the claimed circumstances of impracticability and Plaintiff’s failure to move the case to trial. (Martinez v. Landry’s Restaurants, Inc.(2018) 26 Cal.App.5th 783, 793.)
Wolfe asserts that Beall has failed to identify any particular time period during which he contends it has been impracticable for him to bring the case to trial, instead arguing that possible future rulings might affect his ability to be ready for trial before the period expires, without establishing any causal connection. Further, Beall provided no evidence to support the conclusory statement that he operated with reasonable diligence on all issues, and the evidence shows that he has not. Additionally, Beall’s other arguments do not establish that it has been, is, or will be impracticable to bring the matter to trial, as that word is used in the statute.
Beall notes that it was Wolfe who challenged his standing, and the Court continued the hearing from 9/27 to 11/1, and he then filed his own motion to redefine the classes (etc.), which is why the motion to extend the 5-year period was filed. He contends that Wolfe does not appear to disagree about the Court’s ability to extend the 5-year period, and Wolfe focused solely upon Beall’s diligence rather than the trial Court’s evaluation of a determination of excessive and unreasonable difficulty or expense in light of all the circumstances of the case—which Beall contends appears to mandate grant of the motion.
He contends he believed that restitution would be ancillary to any injunction the Court might order, and only now understands that may or may not be the case, and has proffered alternatives by which the Court could redefine classes or modify its order such that damages or restitution could be a part of the case in chief, each of which would constitute impracticability. Given Wolfe’s 9-month delay in filing the decertification motion, there would be undue prejudice if the motion is granted, and the 5-year statute is not extended. Beall also contends that the Court should consider extending the 5-year period even if none of the other motions are granted, given the complexity of the case.
ANALYSIS
The Court will deny Beall’s motion to redefine classes, modify the certification order, for leave to amend, and to set aside and continue the trial date.
The Court will also deny Beall’s motion to extend the period within which to bring the action to trial, finding that it has no authority or ability to do so, and that it is not impossible, impracticable, or futile to proceed to trial within the existing statutory period to bring the action to trial.
The personal claims of Plaintiff Beall will proceed to trial on December 6, 2023.
1. Request for judicial notice.
In support of its motion for decertification of the classes, Wolfe has sought judicial notice of a number of state Court records, including (A) this Court’s certification order, entered January 18, 2023; (B), Order entered October 3, 2022, in Case No. 22CV01662; (C) Order dated January 18, 2023, entered in Case No. 22CV01662; (D) Order dated May 10, 2023, entered in Case No. 22CV01662; and (E) Order dated June 28, 2023, entered in Case No. 22CV01662.
Matter to be judicially noticed must be relevant to the issues in the case. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Pursuant to Evidence Code section 452(d), judicial notice may be taken of the records of any state Court. Wolfe seeks judicial notice of the documents from Case 22CV01662 in support of its claim that Beall’s and his counsel’s credibility have been impaired to the point that they are no longer able to represent the absent class. Plaintiff has not challenged the propriety of the request for judicial notice of the trial Court records, and the Court will therefore grant the request to judicially notice all such records.
2. Decertification and/or modification of classes motions
A. Authority.
Pursuant to California Rules of Court, Rule 3.764(a)(4), any party may file a motion to decertify a class. Decertification generally requires new law or newly discovered evidence showing changed circumstances, and a motion for decertification is not an opportunity for a disgruntled class Defendant to seek a do-over of its previously unsuccessful opposition to certification. (Williams v. Superior Court (2013) 221 Cal.App.4th 1353, 1360.) Modifications of an original class ruling, including decertifications, typically occur in response to a significant change in circumstances, and in the absence of materially changed or clarified circumstances, Courts should not condone a series of rearguments on the class issues. (Id, at pp. 1360-1361.)
However, Courts retain inherent authority to decertify a class if a merits ruling makes clear that individual issues will engulf the litigation such that the class litigation becomes unmanageable and/or will substantially interfere with one or both of the parties’ due process rights. (Kight v. CashCall, Inc. (2014) 231 Cal.App.4th 112, 127.) Further, trial Courts should retain flexibility in conducting class actions, including entertaining successive certification-related motions, if the Court subsequently discovers that a class action is not appropriate. (Weinstat v. Dentsply International, Inc. (2010) 180 Cal.App.4th 1213, 1226.) A Court should not force maintenance of a class action where there is a proper reason for decertification. (Green v. Obledo (1981) 29 Cal.3d 126, 148.)
B. Standing for declaratory relief and injunctive relief
1. Standing, generally.
In general, a named Plaintiff must have standing to prosecute an action. (Code Civ. Proc., § 367.) The question of standing is one of the right to relief, and goes to the existence of a cause of action against the Defendant. (Payne v. United California Bank (1972) 23 Cal.App.3d 850, 859.)
As set forth by the Court in CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 286, quoting Holmes v. California National Guard (2001) 90 Cal.App.4th 297, 314-315:
“As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator. [Citations.] To have standing, a party must be beneficially interested in the controversy; that is, he or she must have “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” [Citation.] The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.
Without standing, there is no actual or justiciable controversy, and Courts will not entertain such cases. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.)
2. Declaratory relief.
As noted by Wolfe, the Court in Harris v. Itzhaki (9th Cir. 1999) 183 F.3d 1043, found that once the lease between the parties had terminated and the tenant had vacated the premises, the tenant no longer had standing to pursue injunctive or declaratory relief. In that case, the Court found that the Plaintiff retained her right to pursue damages, but that her requests for declaratory and prospective injunctive relief were mooted by her vacation of the premises. (Id. at p. 1050.)
3. UCL actions and injunctive relief.
Pursuant to Business & Professions Code section 17203, any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any Court of competent jurisdiction, and the Court may make such orders as may be necessary to prevent the use or employment of any practice which constitutes unfair competition. Such person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Code of Civil Procedure section 382 (related to class action proceedings.
The UCL’s standing requirement applicable to individual Plaintiffs provides that such an action may be brought only by a person who “has suffered injury in fact and lost money or property as a result of the unfair competition.” (Bus. & Prof. Code, § 17204.) “Injury in fact” is a legal term of art and is “an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) ‘actual or imminent, not “conjectural” or “hypothetical,”’ [citations].” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322-323 (Kwikset), quoting Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560.) “Particularized in this context means that “the injury must affect the Plaintiff in a personal and individual way.” (Id., at p. 323.)
Under the UCL, injunctive relief is not available for completed wrongs absent a showing of threatened future harm or continuing violation. (People v. Toomey (1984) 157 Cal.App.3d 1, 20; Sun Microsystems, Inc. v. Microsoft Corp. (N.D. Cal. 2000) 87 F.Supp.2d 992. 1004-1005, citing People v. Toomey (1984) 257 Cal.App.3d 1, 20; Gladstone v. Hillel (1988) 203 Cal.App.3d 977, 990; and Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 542.)
C. Requirement that the named Plaintiff’s claim be typical of that of the class.
The Court discussed the typicality requirement for class certification during the course of its analysis of the certification motion itself. The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class. Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose, or the relief sought. The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct, which is not unique to the named Plaintiffs, and whether other class members have been injured by the same course of conduct. (Kizer v. Tristar Risk Management (2017) 13 Cal.App.5th 830, 840.)
As noted by Wolfe in its decertification motion, a representative Plaintiff must also be a member of the class he or she seeks to represent. (CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300, 307.) The duty a Plaintiff has to other class members should not be confused with an additional claim for relief, since a representative Plaintiff still possesses only a single claim for relief—the Plaintiff’s own. (Schoshinski v. City of Los Angeles (2017) 9 Cal.App.5th 780, 792, quoting Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1592, and Deposit Guaranty Nat. Bank v. Roper (1980) 445 U.S. 326, 322.) That the Plaintiff has undertaken to also sue ‘for the benefit of all’ does not mean that the Plaintiff has somehow obtained a ‘class claim’ for relief that can be asserted independent of the Plaintiff's own claim. (Ibid.) The right of a litigant to employ the class action procedural is a procedural right only, ancillary to the litigation of substantive claims. (Ibid.) A representative Plaintiff cannot give themselves standing by purporting to represent a class of which they are not a member. (Payne v. United California Bank (1972) 23 Cal.App.3d 850, 860.)
D. Application to the decertification and class certification modification motions before the Court.
As a prefatory matter to addressing the issues raised by the motions, the Court will note that Beall’s certification motion was peculiarly and confusingly drafted, as repeatedly noted by this Court throughout its analysis of the motion. The motion made no mention of any of the classes for which it was seeking certification until page 12, and confusingly referred to both certification of these classes, and certification of causes of action—many of which contained multiple claims of alleged misconduct by Wolfe that would involve multiple diverse issues and classes of tenants. The Court struggled long and hard in its evaluation of the motion and the propriety of any of the certification requests—expending literally weeks of time in its attempt to first ascertain the issues raised by the motion, and then to resolve them to the best of its ability.
In his certification motion papers, Beall repeatedly contended that, at a minimum, at least a declaratory relief and injunctive relief class would be mandated for most of the proposed classes. His theory in urging this alternative was that proceeding solely on declaratory and injunctive relief would remove any issues of ascertainability of the class, or predominance of individualized issues, since it would focus solely upon whether Wolfe’s actions violated the law (declaratory relief) and whether injunctive relief to compel Wolfe’s future compliance with the law was warranted—and could therefore proceed to trial without providing notice to the class. (See, e.g., Certification motion at 16:13-14 [predominance not required to certify a class for injunctive or declaratory relief]; 18:12-14 [superiority not required in class actions for declaratory and injunctive relief]; 19:26—20:2 [ascertainability requirement does not apply when declaratory and injunctive relief is sought and notice to the class is not required]; 21:14-16 [class can be certified on issues alone]; 22:4-6 [declaratory and injunctive relief should be available to the class regardless of whether any damages class may be certified]; and Certification Reply at 4:7-9 [as to declaratory and injunctive relief, all acts are currently controversial and no notice to the class is required]; 5:16-17; 10:15-17 [“a declaratory and injunctive relief class is mandated compelling Defendant to comport with common depreciation principles before seizing deposits without a hearing”]; 11:11-12 [declaratory and injunctive class appropriate where Defendant admitted it oftentimes did not follow a policy of properly itemizing general maintenance fees]; 11:24-25 [“at a minimum” a declaratory and injunctive class is mandated to compel compliance in providing a proper vendor receipt].)
Consequently, even after finding that class treatment was improper for purposes of damages/restitution, the Court continued to evaluate the proposed classes to determine if they might be properly certified for declaratory and/or injunctive relief only. As noted, in addressing the motion for class certification, the Court was required to address an overwhelming number of issues related to the propriety of certifying the nine classes which Plaintiff proposed, which did not align to the causes of action alleged in Beall’s obscurely drafted Fourth Amended Complaint. Once the Court determined that Plaintiff’s motion was insufficient to support certification of any class for purposes of damages or restitution, it failed to recognize that such a finding would jeopardize Beall’s standing to continue to pursue the declaratory relief and injunctive relief claims as class claims, and/or the typicality of his claims and his adequacy as a class representative, and likely should have simply denied the motion in its entirety at that time. Contrary to Beall’s current claims, the issues were never directly argued in the certification motion papers.
1. Decertification of classes, and request for leave to amend to add new representative Plaintiff.
It is clear that because of the fact that Beall’s relationship with Wolfe terminated at the expiration of the lease in June 2018, he has no personal right to declaratory relief on any issue related to the contract or the statutes upon which liability is based in his 4AC. Rather, his personal claims against Wolfe all involve alleged wrongs which are completely in the past and have been reduced to claims for damages and/or restitution. Beall’s personal claims will either result in a finding of liability against Wolfe, or they will not. However, because there is no continuing relationship between the two, there is no basis upon which to seek a declaration of the respective rights and duties of Beall and Wolfe.
With respect to declaratory relief, the law makes clear that the lack of any ongoing relationship between Beall and Wolfe, and the fact that Wolfe’s alleged wrongs toward Beall are all in the past, eliminates any standing by Beall to seek declaratory relief. The same is not entirely true with respect to injunctive relief—at least as sought under the UCL. Certainly, injunctive relief also acts prospectively, and is not available where (as here) the claim against the Defendant is for a completed wrong, with no indication of any threatened future harm to the Plaintiff by the Defendant. Within the causes of action for violation of the UCL, however, the fact that Beall has no ability to seek injunctive relief with respect to Wolfe’s violations of the UCL law, as they relate to him personally, does not divest Beall of standing under the UCL. He still has the ability to pursue his own claims for restitution under the UCL, and for damages under the other causes of action, even though this Court did not certify any damages or restitution claims for class treatment.
The fact that Beall cannot pursue injunctive relief against Wolfe on his own behalf under the UCL, is more clearly analyzed under the question of whether he is an adequate class representative, who is a member of the class that he seeks to represent, and whose claims are typical of those of the absent class, rather than on whether he has lost (or never had) standing under the UCL as a whole, or to seek injunctive relief under the UCL.
Do Beall’s interests align with those of the class with respect to his claims for injunctive relief? As noted above, typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose, or the relief sought. (Kizer v. Tristar Risk Management (2017) 13 Cal.App.5th 830,840.) Given that Beall has no personal ability to seek injunctive relief under the UCL, his incentives in pursuing his UCL claims—apart from those motivated by his counsel’s desire for an award of private attorney general attorneys’ fees—are not reflective of the interests and incentives of the absent class members. Under the circumstances, the Court cannot find that Beall is a member of the class he seeks to represent with respect to the claim for injunctive relief, or that his claims are typical of those of the class, in a manner that would permit him to continue to act as class representative for purposes of any injunctive relief claims under the UCL.
Given the circumstances as they currently exist—and which were not readily apparent at the time of the original certification order—which make clear that Beall is not a member of the class he seeks to represent for purposes of seeking injunctive relief, and that his interests do not align with those of the absent class, the Court will exercise its discretion to alter its class certification order finding Beall to be an adequate class representative, and will make a finding that he is not.
This leaves the question of whether the correct course of action for this case is to decertify the classes and dismiss the class action claims, or to permit Plaintiff leave to find a new representative Plaintiff.
Generally speaking, where the trial Court concludes that the named Plaintiff or Plaintiffs may not adequately represent the class, it should afford them an opportunity to amend their complaint to redefine the class or to add new individual Plaintiffs. (CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 284.) However, the Court in Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.Ap.5th 832, 847, noted that it is not an absolute rule that the trial Court must grant leave to amend to add a new class representative in every case in which a Court concludes that the named Plaintiff is inadequate, and stated further that an absolute rule requiring substitution of a new class representative after a ruling that the named Plaintiff is inadequate would be inconsistent with the general principle that a trial Court has discretion in deciding whether to permit an amended complaint. (Id., at p. 848.) The Payton Court further found significant the length of time the action had been pending and confirmed that the trial Court could properly rely on the age of the case in denying a request to find a new class representative, particularly when other problems with certification would make obtaining a new class representative futile.
Given the extraordinary length of time this action has been pending—and was pending even before Beall made any attempt to certify any classes—the Court will decline to permit Beall leave to amend to find another class representative, will decertify the remaining classes, and will dismiss the class claims. This action will proceed to trial on December 6, 2023, with respect to Plaintiff Beall’s personal claims against Wolfe.
The Court notes that this course of action does not impair the claims of absent class members; those with standing to pursue claims, and/or whose claims are typical of the class—unlike Beall’s—will retain those claims and could pursue them at any time.
2. Beall’s request to redefine classes and/or modify class order and/or for leave to amend, and to vacate trial and discovery cut-off dates.
The Court has already ruled on the request for leave to amend to obtain a new class representative, which was also made by Beall in opposition to the decertification motion.
Apparently not taking this Court at its word that the lengthy certification decision it issued in January 2023 reflected a full consideration of the issues regarding the propriety of certifying the nine proposed classes which Beall sought to certify in this action, Beall now—35 days before trial, and 93 days prior to the running of the period within which to bring this long-pending action to trial—seeks to redefine the classes, and/or to modify the class order, including to reintroduce back into the action the damages and restitution claims about which this Court found Beall failed to meet the burden of establishing were proper for certification.
Some of Beall’s requests simply reargue matters that were, or should have been, raised and resolved in the course of the original certification motion. The requested modifications are therefore largely simply rearguments of the underlying certification motion, which are not to be condoned by the Courts. (See Williams v. Superior Court (2013) 221 Cal.App.4th 1353, 1360-1361.) The Court’s comprehensive ruling on the certification motion found each of the classes improper for certification as to damages or restitution, on grounds which varied from class to class, but which included problems of ascertainability, typicality, numerosity, commonality, and the inability to prove fact of damage by common proof. The Court is not inclined to revisit that lengthy analysis simply because Beall believes that “it does not appear there is any good reason” not to redefine or modify the classes and permit them to seek damages or restitution.
Similarly, Beall requests the Court to redefine or modify the classes regarding injunctive relief to be solely under the UCL, since he has standing under the UCL, and further asks that the modification ensure that restitution is included as ancillary relief. In opposition to the decertification motion, his counsel expressed that he understood that the class certification ruling regarding possible injunctive relief to compel Defendant’s compliance with the law would include requiring Defendant to identify class members, calculate, and make restitution to the class members.
To the extent that this Court certified causes of action only as to declaratory relief and potential injunctive relief, that injunctive relief was intended only to compel future compliance with the law, should the declaratory relief claim establish that Wolfe’s conduct and/or practices were contrary to law. The Court only did so based upon Beall’s repeated contentions that it could certify classes for declaratory and injunctive relief, focused on whether Wolfe’s actions violated the law, which would avoid issues of ascertainability, predominance, superiority, and other issues that could prevent certification of a damages/restitution class, and would not require notice to the class to proceed to trial. Its certification of classes for declaratory and possible injunctive relief only did not contemplate rolling “compelled restitution” into such injunctive relief, since doing so would run afoul of the many problems the motion had with respect to the certifiability of the class for purposes of damages or restitution—including ascertainability, fact of damage for the class, numerosity, commonality, and typicality. Restitution under the UCL is a remedy separate and apart from injunctive relief. When the certification ruling with respect to each class is read in the context of the motion as a whole, the Court believes that this intention was clear. (See, e.g., the Court’s discussion of Class 8—the Vendor Material and Supply Class—where the Court stated: “The issue of whether Wolfe’s practice of purchasing items in bulk, marking up the price of some items, and charging the tenant through use of a receipt prepared by Wolfe complies with the provisions of Civil Code section 1950.5(g)(2)(C) could easily a subject of a declaratory relief claim given the competing claims by Beall (that the practice does not comply with the statutory requirements) and Wolfe (that the practice is compliant) and, if the issue is found against Wolfe, injunctive relief to require compliance [sic] its compliance with the proper standard.”)
Beall further seeks redefinition or modification of the classes regarding declaratory relief, but it is unclear to the Court what he is seeking. Certainly, as explained by Wolfe’s decertification motion, and by this Court (above), given that Beall’s claims against Wolfe have ripened into claims for damages, and given that there is no ongoing contractual or other relationship between Beall and Wolfe, there is no legal basis for declaratory relief, and Beall does not have standing to seek declaratory relief.
Finally, Beall seeks to vacate and continue the currently scheduled trial date, and the discovery cut-offs. In light of this Court’s previous rulings, the Court will deny the motion.
3. Five year period within which to bring cases to trial.
Pursuant to Code of Civil Procedure section 583.310, and action must be brought to trial within five years after it is commenced against the Defendant. By operation of Emergency Rule 10(a), adopted in response to the Covid-19 pandemic, the Judicial Council extended the five year period by a period of six months, for all civil actions filed on or before April 6, 2020.
Code of Civil Procedure section 583.330, provides two methods through which parties may extend the time within an action must be brought to trial, including: (a) by written stipulation brought to the attention of the Court if relevant to a motion for dismissal, or (b) by oral agreement made in open Court, if entered in the minutes of the Court or a transcript is made.
Section 583.340 provides:
In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:
(a) The jurisdiction of the Court to try the action was suspended.
(b) Prosecution or trial of the action was stayed or enjoined.
(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.
Finally, Section 583.360 provides:
(a) An action shall be dismissed by the Court on its own motion or on motion of the Defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.
(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.
This action was filed on August 3, 2018. Consequently, the five-year and six month period within which it must be brought to trial expires on February 3, 2024. Trial of this action is currently set for December 6, 2023, slightly less than two months prior to the expiration of the five year and six month period. Indeed, it is Plaintiff himself who seeks to vacate and continue the trial date for “at least six months” beyond the expiration of the 5 year and 6-month period, in order to facilitate his attempt to continue to maintain the action as the sort of class action that he desires and envisions the case to be. Plaintiff apparently envisions locating and bringing in a new class representative during this time (which the Court has denied him leave to do), and the conduct of discovery with respect to the new representative and/or the amended class definitions and/or class remedies that he would like to reintroduce into the action (which have also not been permitted by the Court). In furtherance of those goals, he has preemptively moved for an order extending the five year period, based upon his conclusion that it will be impossible, impracticable, or futile to bring to trial the class action as structured in the manner which he wants this case to be, prior to the expiration of the current statutory period.
Nothing which has occurred has impacted Plaintiff’s personal claims against Wolfe, which can and will go to trial as scheduled.
This Court is unaware of any authority or precedent which would permit it to simply extend the five-year period upon a Plaintiff’s request and over a Defendant’s objection. Code of Civil Procedure section 583.330 specifies that the period can only be extended by written stipulation of the parties or oral agreement entered into the record. This Court has only ever addressed the issues set forth in Sections 583.310 [period during which case must be brought to trial] and 583.340 [permissible exclusions in calculating the period during which a case must be brought to trial] in the course of a Defendant’s motion to dismiss made pursuant to Section 583.360(a) after the period has run. Even if it were permissible for the Court to do so, however, the Court does not find that it is impossible, impracticable, or futile to bring the action to trial within the remaining time prior to the expiration of the statutory period.
The Court will therefore deny the motion to extend the period.