Filed 11/14/18; Certified for Publication 11/20/18 (order attached)




 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                 DIVISION EIGHT

WARNER BROS.                                           B289109
ENTERTAINMENT INC.,

       Petitioner,                                      (Los Angeles County
                                                         Super. Ct. No. BC500040)
       v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

       Respondent;

LARCO PRODUCTIONS, INC.,
et al.,

        Real Parties in Interest.

     ORIGINAL PROCEEDINGS in mandate. Elihu M. Berle,
Judge. Petition granted.
     Irell & Manella, Steven A. Marenberg, Josh B. Gordon and
Andrew J. Strabone for Petitioner.
     No appearance for Respondent.
     Kiesel Law, Paul R. Kiesel, Jeffrey A. Koncius, Nicole
Ramirez; Boucher, Raymond P. Boucher, Shehnaz M. Bhujwala,
Maria L. Weitz; Johnson & Johnson, Neville L. Johnson, Douglas L.
Johnson and James T. Ryan for Real Parties in Interest.
              ____________________________________

                              SUMMARY
      On March 26, 2018, the trial court in this putative class
action filed on January 29, 2013, denied defendant’s motion to
dismiss for failure to bring the action to trial within five years
(Code Civ. Proc., §§ 583.310 & 583.360).1 The court then granted
plaintiffs’ motion for trial preference, setting the case for trial
“immediately” (on April 10, 2018). This was six days before the
five-year period was to expire, calculated to include a disputed 43-
day tolling period the court found applicable under section 583.340,
subdivision (b) (hereafter, section 583.340(b)) (excluding from the
calculation time during which “[p]rosecution or trial of the action
was stayed or enjoined”).
        The court set the matter for trial despite these circumstances:
Plaintiffs’ motion for class certification – the hearing of which was
also advanced to April 10, 2018 – had not yet been decided; the
court “[did] not believe that the reasonable diligence has been
exercised” with respect to class certification; discovery on the merits
of plaintiffs’ claims had not yet been permitted; and the court had
“not yet determined the order of the trial” (but ordered the parties
to file, by April 2, 2018, “the joint exhibit list, joint statement to be
read to the jury, joint witness list, joint jury instruction and joint
verdict form”).


1    All further statutory references are to the Code of Civil
Procedure.


                                    2
       We grant defendant’s petition for a writ of mandate and order
the trial court to dismiss the entire action as required under
sections 583.310 and 583.360. We hold that:
       An order staying responsive pleadings and outstanding
discovery requests, while also requiring the parties to “negotiate
and agree . . . on a case management plan” and to prepare and file a
joint statement specifically addressing case-related issues in
multiple areas (and also allowing the parties to informally exchange
documents), does not “effect a complete stay of the prosecution of
the action” within the meaning of Gaines v. Fidelity National Title
Ins. Co. (2016) 62 Cal.4th 1081, 1087 (Gaines), and Bruns v. E-
Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730 (Bruns).
Consequently, the trial court erred when it concluded the five-year
period was tolled for 43 days because of such a stay, issued at the
outset of the case. Thus, the five-year period expired on March 2,
2018, and dismissal of the action was mandatory.
       Alternatively, even if we assume the 43-day tolling period was
permissible, the trial court’s order granting trial preference and
setting the trial for April 10, 2018, the same date on which
plaintiffs’ motion for class certification was to be heard, was a
manifest abuse of discretion. Well-settled principles of law tell us
that (1) generally courts “should not resolve the merits in a putative
class action case before class certification and notice issues absent a
compelling justification for doing so” (Fireside Bank v. Superior
Court (2007) 40 Cal.4th 1069, 1083 (Fireside Bank), and (2) a class
action is subject to dismissal under the five-year statute if the class
issues are not decided, including notice to class members, with
enough time “to allow even a minimally reasonable period for
exercise by the class members of their options” (Massey v. Bank of
America (1976) 56 Cal.App.3d 29, 33 (Massey)). Setting a trial to
begin one week before expiration of the five-year statute is



                                  3
impermissible and would render the Fireside Bank and Massey
principles a nullity. Nor does the “ceremonial” principle stated in
Hartman v. Santamarina (1982) 30 Cal.3d 762, 766 (Hartman) –
allowing “the pro forma commencement of the trial” in order to
“preserv[e] the right to a trial on the merits” in the face of the five-
year statute – apply to the circumstances in this case.
                                 FACTS
1.     The Complaint and Related Actions
       On January 29, 2013, Stuntman, Inc., a loan-out company for
the services of Hal Needham, a writer and director, filed a class
action complaint against Warner Bros. Entertainment, Inc.
(defendant or petitioner). The substance of the complaint was that
defendant failed to account properly to profit participants
(Mr. Needham and class members) for income derived from the
distribution of motion pictures on home video formats. The
complaint asserted defendant engaged in the systematic practice of
accounting to and crediting profit participants based on 20 percent
of home video revenue, while it should have done so based on
100 percent of that revenue.
       Other named plaintiffs, represented by some of the same law
firms representing plaintiffs in this case, filed similar lawsuits
against other studios (Universal City Studios LLC, Paramount
Pictures Corp., Twentieth Century Fox Film Corp., and Sony
Pictures Entertainment, Inc.).
       On February 15, 2013, Judge Elihu M. Berle issued an initial
status conference order in the Paramount Pictures case, staying
those proceedings pending further order of the court and setting an
initial status conference for April 16, 2013.
       On February 28, 2013, Judge Lee Edmon (to whom this case
was originally assigned) issued a similar order in this case.
       On March 4, 2013, the five lawsuits were related.



                                   4
      The parties agree that as a result of the March 4, 2013 order
relating the cases, Judge Berle’s initial status conference order was
entered in this case, and that the stay Judge Berle ordered lasted
for 43 days.2
2.    The Initial Status Conference Order
      Judge Berle’s order included the following provisions. With
respect to the stay, the order stated:
             “To facilitate the management of this complex case
      through the development of orderly schedules for briefing and
      hearings on procedural and substantive challenges to the
      complaint, discovery, and other issues, pending further order
      of this Court, and except for service of the summons and
      complaint and as otherwise provided in this Initial Status
      Conference Order, these proceedings are stayed in their
      entirety. This stay shall preclude the filing of any responsive
      pleadings, including any answer, demurrer, motion to strike,
      or motions challenging the jurisdiction of the Court.
      However, any defendant may file a Notice of Appearance for
      purposes of identification of counsel and preparation of a
      service list. . . . This stay shall not preclude the parties from
      continuing to informally exchange documents that may assist
      the parties in their initial evaluation of the issues presented
      in this case; however, it shall stay all outstanding discovery
      requests. [¶] Nothing herein stays the time for filing an


2     Despite this agreement, plaintiffs refer to Judge Edmon’s
February 28, 2013 minute order, while defendant uses Judge
Berle’s order. There are no substantive differences in these orders.
We will use Judge Berle’s order, because the joint initial status
conference report filed by the parties on April 8, 2013, states that it
was submitted “pursuant to the Court’s February 15, 2013 and
March 4, 2013 Initial Status Conference Orders.”


                                   5
       affidavit of prejudice pursuant to Code of Civil Procedure
       Section 170.6.”
       The remainder of the order concerned what the parties were
required to do before the initial status conference on April 16, 2013,
while the stay of responsive pleadings and outstanding discovery
requests was in effect. Thus:
       Counsel were ordered to meet and confer to discuss
17 matters, “and to prepare to address these issues with this Court
at the Initial Status Conference.”
       Plaintiffs’ counsel was ordered “to take the lead in preparing”
a joint initial status conference report to be filed before the initial
status conference. The order delineated the 17 matters to be
addressed in the joint report. These included such matters as the
service list, any issues of jurisdiction or venue, an outline of claims
and cross-claims, a list of related litigation, a description of core
factual and legal issues, a description of discovery completed and
any outstanding discovery, issues regarding electronic discovery,
whether particular documents could be voluntarily exchanged, and
so on.
       The parties were required to set forth their positions on those
matters separately if they could not agree. The order encouraged
the parties “to propose, either jointly or separately, any approaches
to case management that they believe will promote the fair and
efficient handling of this case. The Court is particularly interested
in identifying potentially dispositive or significant threshold issues
which may assist in early resolution or moving the case toward
effective ADR and/or a final disposition.”
       The parties complied with the order. They met and conferred
on March 20, 2013. Counsel then prepared the required joint report




                                   6
and submitted it on April 8, 2013.3 The 28-page report addressed
the issues specified in the court’s February 15 order, plus five
additional points the court specified when the cases were related on
March 4, 2013. With respect to the voluntary exchange of
documents, the report stated that, subject to the court’s entry of an
appropriate protective order, the parties agreed on March 20 “to a
voluntary exchange of certain materials.”4 On the issue of a target
trial date, plaintiffs stated that they would be seeking to certify one
or more classes and would “file such motions within 12 months of
discovery being opened,” and “trial could then occur within twelve
months of such motion practice being resolved.” (On the topic of a
discovery cut-off date, plaintiffs stated they “anticipate that they
can complete sufficient discovery within twelve months after the
discovery stay is lifted to move for class certification.”)
3.     The Substitution of Plaintiffs
       Mr. Needham died on October 25, 2013, and on November 26,
2013, a first amended complaint substituted Larco Productions, Inc.
and Michael Elias as named plaintiffs. The parties agree that the
five-year statute was tolled during this 32-day period, so the


3     When we refer to “defendants” (in the plural) in this opinion,
the term includes the defendants in the related cases.

4      “Specifically, defendants agreed to voluntarily produce to
plaintiffs, subject to the attorney-client and other applicable
privileges, the contract negotiation files, participation statements,
and any audit reports or settlement agreements related to the
named plaintiffs. Plaintiffs agreed [to] make a good faith effort to
collect from their present and former representatives and to
voluntarily produce documents related to the subject contracts,
including negotiation files, participation statements, and any audit
reports or settlement agreement related to the named plaintiffs.”



                                   7
earliest date on which the five-year statute could have run was
March 2, 2018.
4.      Further Proceedings
        Following is a general description of various proceedings that
took place as the case moved toward the class certification motion,
as well as events after that motion.
        a.    April 16, 2013 – July 3, 2017
        December 2013: The parties had agreed to a discovery
procedure by December 2013. (At a status conference on
December 3, 2013, the court also ruled that merits-based discovery
was not permitted.) The parties selected a random sampling of
25 motion pictures for document production by defendant, which
would form a basis for plaintiffs’ class certification motion. The
parties refer to this as the Pioneer sample of films; notice was
issued to putative class members under Pioneer Electronics (USA),
Inc. v. Superior Court (2007) 40 Cal.4th 360 (Pioneer). Disputes
over the Pioneer notice were finally resolved, and the court
approved dissemination of the notice on May 14, 2014.
        May 2015: Defendant eventually produced documents related
to the Pioneer sample on a rolling basis, with its final production on
May 29, 2015, by which time it had produced over 69,000 pages of
documents.
        July 2015: In a joint status conference report dated July 30,
plaintiffs stated they anticipated taking depositions “and being able
to file their motions . . . within 180 days after the last Pioneer
documents are received.”5 They also reported they had proposed to

5     After a production in May 2015, the parties conferred over
additional documents plaintiffs sought. Defendant conducted
additional searches and made a supplemental production later in
May, and in July 2015 informed plaintiffs it had produced all the
additional documents it was able to locate. Thus, in July 2015,


                                  8
the studios that they would move for class certification “on the
information and documents produced in discovery to date,” but this
was subject to the caveat that defendants would oppose class
certification “on the documents and information disclosed relating
to the named Plaintiffs and the films included in the 25 Film
Sample, only.” Defendants did not agree they were confined to the
existing discovery record in opposing class certification. Defendants
anticipated needing about six months from the date of filing of
plaintiffs’ motion to complete discovery necessary for their
oppositions.
       August 2015: At a hearing on August 27, plaintiffs’ counsel
told the court plaintiffs would be prepared to file their class
certification motion as to defendant “within six months from today.”
The court then set the deadline for February 26, 2016.
       November 2015: On November 23, the court ordered
plaintiffs to file the class certification motions by April 29, 2016.
(Other defendants (Fox, Paramount and Sony) wanted an extension
until that date, and no one objected. Defendant’s counsel explained:
“Your Honor, just so that we’re clear, what we are doing in this –
what we have all agreed to is the Warner Bros. motion that was set
for [February 26, 2016] is now being pushed back so they are all on
the same schedule.”)
       April 2016: On April 13, the parties stipulated to extend the
deadline to July 28, 2016. (The stipulation states that plaintiffs –
“in order to conclude discovery pertaining to class certification
issues prior to filing the Motion” – requested, and defendant did not
oppose, the 90-day extension. The stipulation also stated the
parties in the Fox and Sony cases had stipulated to staying those
cases through July 31, 2016, to pursue settlement discussions, so

plaintiffs planned to file their class certification motion by January
2016.


                                   9
this extension would not “impact the other actions” or “the Court’s
attempt to have all of the Motions for Class Certification filed on
the same date.”)
       May – June 2016: E-mail correspondence in May and June
2016 refers to scheduling and re-scheduling of the depositions of
defendant’s personnel, including dates beyond the July 28 deadline
for the class certification motion, for which the parties blamed each
other.
       July 2016: At an informal discovery hearing on July 1,
defense counsel suggested that all counsel (for plaintiffs, defendant,
Fox and Sony) confer and suggest a date for plaintiffs to file their
motion “in all of the cases like we had originally contemplated.”
Plaintiffs’ counsel agreed with that suggestion, saying that “we
have to . . . get Fox and Sony back on track,” and referring to
“a reasonable schedule to allow the discovery to occur with Fox and
Sony . . . and then to have a filing date for all three of the motions
for class certification.”
       August 2016: On August 10, the parties submitted a joint
report agreeing plaintiffs’ deadline for the three motions for class
certification would be extended for six months to January 30, 2017.
One reason cited was that plaintiffs “require[d] the additional time
to complete discovery, including deposition discovery from
[defendant] and discovery that, in the case of Fox and Sony, was
held in abeyance while settlement discussions continued.” The
court ordered the January 30, 2017 deadline.
       October 2016: On October 28, plaintiffs stated in a joint
report that they intended to file their motion for class certification
as to defendant by the January 30, 2017 deadline. (They stated an
intention to do so as to Sony and Fox also, but reserved the right to
seek additional time if the parties were unable to agree on a




                                  10
settlement and if there were discovery disputes or unexpected
delays in the discovery process.)
       November 2016: On November 4, plaintiffs in the related
cases proposed an extension of the deadline as to Sony and Fox for
an additional 90 days, because those parties had reached a
tentative settlement. Counsel for plaintiffs told the court that as to
defendant, plaintiffs “should be able to file by the current deadline.”
Defendant suggested the motions continue to be filed
simultaneously, and plaintiffs agreed that doing so “made sense
from the Plaintiffs’ perspective.” The deadline was thus extended
from January 30 to May 1, 2017.
       April 2017: In early April, plaintiffs asked defendant to agree
to an extension to July 1, 2017. Defendant informed plaintiffs it
would not agree to any extension, but would not oppose it either.
On April 13, 2017, plaintiffs filed an ex parte application to extend
the deadline. They did so because the parties in the Fox case had
agreed to extend the deadline in that case to July 1 “in order to
continue with settlement discussions.” Plaintiffs cited the previous
efforts “to maintain a parallel litigation schedule and class
certification schedule.” Plaintiffs stated that “[t]he parties, and this
Court, will suffer irreparable harm if the deadline . . . is not
extended to July 1, 2017, because the pattern of uniformity will be
broken and the duplication of work and expenditure of needless
resources which to date has sought to be, and has been, avoided,
will be lost.” The trial court granted the application.
       b.     July 3, 2017 – March 2, 2018
       July 2017: Plaintiffs filed their motion for class certification
on July 3, 2017 (July 1 was a Saturday). As evidentiary support,
plaintiffs relied “on approximately 60 participations contracts that
had been produced to them by [defendant] by May 2015,” and also
presented deposition testimony from various representatives of



                                   11
defendant.6 “[B]ased upon the agreement of the parties,” the court
granted defendant until January 15, 2018, to file opposition to class
certification, and gave plaintiffs until March 15, 2018, to reply. The
court set the hearing on class certification for April 18, 2018.
(Plaintiffs point out that defendant proposed that schedule, “which
happened to be after March 2, 2018, the date on which [defendant]
now contends the Five-Year-Statute expired.”)
       August – September 2017: Defendant sought documents from
plaintiffs, and from studio defendants in the related cases, asserting
the documents were relevant to its opposition to the class
certification motion. Plaintiffs objected on the ground, among
others, that the discovery was directed to the merits and merits
discovery should be taken after class certification.
       November 2017: On November 14, 2017, the court granted
plaintiffs’ motion to quash the discovery, and denied defendant’s
motion to compel. The ruling was “without prejudice to defendant
Warner Bros. seeking the documents to defend against the merits of
the case.” As plaintiffs tell us, the court “again [found] that the
discovery sought . . . encompassed issues related to the merits and
was not permitted at this stage of the litigation.” (As early as
December 2013 and April 2014, the court had stated that “discovery
at this point [April 2014] is limited to class issues.”)




6      According to plaintiffs, the “PMQ depositions” of defendant
began on October 25, 2016, and ended on January 17, 2017.
Defendant says the depositions occurred between October 25 and
December 20, 2016, “with one deposition completed on January 17,
2017.” In their return, plaintiffs admit the May 1, 2017 deadline
was nearly five months after plaintiffs completed PMQ depositions
of defendant.



                                 12
       The parties agree that, before January 2018, plaintiffs never
mentioned the five-year rule to defendant or the court; nor did
defendant raise the issue.
5.     The Motion To Dismiss and the Motion for Trial
       Preference
       On March 2, 2018, defendant filed its motion to dismiss,
contending the five-year deadline expired that day, or in the
alternative that the case could not be brought to trial by a date that
included the 43-day initial stay (by April 16, 2018). On the same
day (March 2), plaintiffs filed a motion for an order finding the five-
year deadline was extended, or in the alternative granting plaintiffs
“preference for trial immediately.”
       The trial court heard both motions on March 26, 2018.
6.     The Trial Court’s Ruling
       The court denied defendant’s motion to dismiss and granted
plaintiffs’ motion for trial preference. Among the court’s
conclusions were these.
       First, the court concluded the five-year statute would expire
on April 16, 2018, because of two tolling periods.
       The 43-day initial stay came within section 583.340(b),
excluding time during which “[p]rosecution or trial of the action was
stayed or enjoined.” The court explained that “plaintiff could not
advance the case, could not even require the defendant to answer
the complaint. There was no way a case could be at issue or take
discovery or any of the normal activities incurred during litigation.”
“[O]bviously, the case is not even advancing if the pleadings are not
at issue.”
       In addition, the court found the five-year statute was tolled
for 32 days under section 583.340, subdivision (c) (excluding time
when bringing the action to trial was “impossible, impracticable, or
futile”) (hereafter, section 583.340(c)). This was the time between



                                  13
the death of the original plaintiff and the substitution of present
plaintiffs. The court observed these were “extraordinary
circumstances beyond the control of the parties,” and “it was
impossible and impractical for plaintiff to pursue the action without
a client, without a plaintiff in this case.”
       Second, the court rejected plaintiffs’ claims that “at least
1,035 days” should also be excluded from the computation on the
ground it was “impossible, impracticable, or futile” to bring the
action to trial.
       Specifically, the court rejected plaintiffs’ claim the statute
should be tolled for 542 days based on identification of the Pioneer
sample and the related production of documents. The court
observed the “simple process regarding the Pioneer notice . . . is
typical in the complex case,” and the Pioneer production “occurred
between April 2014 and May 2015, over three years before the five-
year deadline.”
       The court also rejected plaintiffs’ claim for exclusion of
493 days based on “the parties’ desire to maintain a parallel track
with the related cases.” The court concluded plaintiffs “did not
establish they were faced with impossible or impractical choices
between prosecuting the case and tracking the other cases. [¶] The
fact that defendant’s counsel [sic] chose to simultaneously track
related actions, even though the court was agreeable to that and
thinks it was appropriate, but that does not [a]ffect the running of
the five-year statute.”
       Third, the court rejected plaintiffs’ contention that equitable
estoppel precluded defendant from arguing the case should be
dismissed. (The reasons plaintiffs gave included that defendant
“agreed to, and even advocated for, delay,” promoting
postponements of the class certification filing deadline so the action
could proceed on the same schedule as the related cases, and



                                  14
proposing a deadline of more than six months for its opposition to
the motion.) The court reasoned:
       “Equitable estoppel requires a party invoking estoppel to
exercise reasonable diligence to ensure a reasonable case be brought
to trial [within] the statutory period. Insofar as the class
certification goes, the court does not believe that the reasonable
diligence has been exercised with the certification earlier, and that
does not justify or delay [sic] the tolling of the statute.”
       Fourth, the court “grant[ed] the motion of the plaintiff for
trial preference and set the case for trial immediately.” The court
set both the hearing on class certification and the trial for April 10,
2018. The court ordered “all the status conference documents . . . to
be filed with the court no later than April 2nd.” The court
continued:
       “[T]hat includes the statement to be read to the jury, the
exhibit list, joint exhibit list, joint statement to be read to the jury,
joint witness list, joint jury instruction and joint verdict form. [¶]
I have not yet determined the order of the trial, whether we would
proceed with a non-jury phase of the trial of unfair competition
before the other phase of the trial, but still would be under
consideration. [¶] But the trial will be set to proceed forthwith on
April 10 at 9:00 a.m. . . . [¶] . . . [¶] . . . As far as counsel is
concerned about discovery, all discovery is opened.”
       Two days later, on March 28, 2018, the court granted
defendant’s ex parte application and stayed the case until the later
of April 30, 2018, or this court’s ruling on defendant’s writ petition
for review of the trial court’s orders.
7.     Defendant’s Writ Petition
       Defendant filed its writ petition on April 2, 2018, seeking
dismissal of the lawsuit and a written decision “clarifying that




                                   15
proceeding with the lawsuit would violate the five-year rule and
that trial preference was improperly granted.”
       We issued an order to show cause and set dates for a written
return and reply. Our order directed the parties to address seven
questions, in addition to any other issues they wished to address.
These questions were whether the trial court erred in refusing to
dismiss the case under the five-year statute; what circumstances
tolled the five-year period; whether the court found reasonable
diligence and excusable delay; whether the court erred in granting
trial preference; the scope of the trial that was set for April 10,
2018; whether defendant’s procedural rights were violated by
setting trial despite no hearing on class certification and no merits
discovery; and whether the court erred in deciding to empanel a
jury before deciding class certification in view of Fireside Bank.
       As indicated at the outset, we now grant defendant’s writ
petition.
                             DISCUSSION
1.     Dismissal Under the Five-year Statute
       a.    The applicable law
       We reiterate the applicable statutory rules for tolling the five-
year period within which an action must be brought to trial under
section 583.310. The time during which “[p]rosecution or trial of
the action was stayed or enjoined” is excluded from the
computation. (§ 583.340(b).) And, the time during which
“[b]ringing the action to trial, for any other reason, was impossible,
impracticable, or futile” is also excluded. (§ 583.340(c).)
       The Supreme Court explained these tolling provisions, first in
Bruns and then in Gaines. Bruns tells us that section 583.340(b)
“contemplates a bright-line, nondiscretionary rule that excludes
from the time in which a plaintiff must bring a case to trial only
that time during which all the proceedings in an action are stayed.”



                                   16
(Bruns, supra, 51 Cal.4th at p. 726; see also Gaines, supra,
62 Cal.4th at p. 1087 [“A complete stay will operate to automatically
toll the five-year period.”].) Section 583.340(c) “gives the trial court
discretion to exclude additional periods, including periods when
partial stays were in place, when the court concludes that bringing
the action to trial was ‘impossible, impracticable, or futile.’ ”
(Bruns, at p. 726.)
       Bruns addressed “whether a stay of the ‘prosecution’ of the
action . . . includes a stay of specific proceedings, such as a stay of
discovery, while other aspects of the action may go forward.”
(Bruns, supra, 51 Cal.4th at pp. 721-722.) The court rejected that
proposition, concluding “the prosecution of an action is stayed under
subdivision (b) only when the stay encompasses all proceedings in
the action.” (Id. at p. 722.) Section 583.340(b) “governs only
complete stays that are ‘used to stop the prosecution of the action
altogether.’ ” (Bruns, at p. 730; see also Gaines, supra, 62 Cal.4th
at p. 1094 [“ ‘The term “prosecution” is sufficiently comprehensive
to include every step in an action from its commencement to its
final determination.’ ”).]
       In this case, the question is whether an order that specifically
stays “any responsive pleadings” and “outstanding discovery
requests” – but requires the parties to do many other things during
the same period – is a “complete stay[]” that “ ‘stop[s] the
prosecution of the action altogether.’ ” Our answer, informed by the
principles stated in Bruns and Gaines, is “no.”
       As in Gaines, “[w]e review the question de novo because it
does not hinge on the resolution of factual questions concerning
credibility of extrinsic evidence.” (Gaines, supra, 62 Cal.4th at
p. 1092.)




                                  17
       b.    Contentions and conclusions
       Plaintiffs contend the stay of responsive pleadings and
discovery “halt[ed] prosecution of the case altogether.” The legal
support plaintiffs offer for this conclusion consists, in its entirety, of
(1) distinguishing the facts in Gaines from the facts here, and
(2) pointing to a sample initial status conference order available on
the superior court’s website, apparently updated in April 2015, that
refers to section 583.310.7 Neither point is persuasive.
       The Gaines case involved an order “entered pursuant to the
parties’ agreement” that struck the trial date “and ‘stayed’ the
proceedings while the parties engaged in mediation and completed
all outstanding discovery.” (Gaines, supra, 62 Cal.4th at p. 1087.)
The court found, under section 583.340(b), both that the order did
not constitute “a stay of the ‘trial of the action’ ” (Gaines, at
p. 1091), and that it “did not effect a complete stay of the
prosecution of the action” (id. at p. 1087). On the first point, the
court found the order effected a stipulated continuance of the trial
rather than a stay. (Id. at p. 1093; see id. at p. 1092 [“The long-
standing judicial understanding of the term ‘stay’ in the context of
the five-year statute is that it refers to those postponements that
freeze a proceeding for an indefinite period, until the occurrence of
an event that is usually extrinsic to the litigation and beyond the
plaintiff’s control.”].)
       On the second point, relying on Bruns, the court concluded
the order did not completely stay prosecution of the action. This
was because the order required the parties to comply with
outstanding written discovery, and so “did not ‘ “stop the

7     Section 583.310 states the general rule that “[a]n action shall
be brought to trial within five years after the action is commenced
against the defendant.”



                                    18
prosecution of the action altogether.” ’ ” (Gaines, supra, 62 Cal.4th
at p. 1094.) In addition, the submission of the action to mediation
“constituted a ‘step in [the] action’ . . . within the meaning of
section 583.340(b) and Bruns.”8 (Id. at p. 1095, citation omitted.)
      The Gaines facts are, of course, different from the facts in this
case. But Gaines is merely one application of the rule. Nothing in
Gaines confines, limits or contradicts the fundamental principle
stated in Bruns: that section 583.340(b) “governs only complete
stays that are ‘used to stop the prosecution of the action
altogether.’ ” (Bruns, supra, 51 Cal.4th at p. 730.) We find it


8      Gaines further held the order did not create a “circumstance
of impracticability” under section 583.340(c). (Gaines, supra,
62 Cal.4th at p. 1087.) This was because “plaintiff agreed to [the
order], remained in control of the circumstances, and made
meaningful progress towards resolving the case during the stay
period.” (Ibid.)
       In this case, no issue of impossibility, impracticability or
futility exists with respect to the 43-day stay. Plaintiffs do not
contend otherwise, nor could they; the existence of circumstances
making it impracticable to “[b]ring[] the action to trial, for any other
reason” (§ 583.340(c)), has no apparent application when a lawsuit
has just begun. (See Gaines, supra, 62 Cal.4th at p. 1101 [“It would
thus be illusory to ask if it was impracticable for [the plaintiff] to try
the case during the period of the stay because the posture of the
case would not have allowed for such a result.”].) And as Bruns
tells us, “[t]he effect of a partial stay . . . can vary from stay to stay
and from case to case. A partial stay might, or might not, make it
‘impossible, impracticable, or futile’ to bring the action to trial. . . .
[W]hen the effect of a partial stay is raised by a plaintiff under
section 583.340, the trial court must determine whether or not
subdivision (c) applies to that partial stay.” (Bruns, supra,
51 Cal.4th at p. 726.) Plaintiffs here did not raise any such claim
with respect to the 43-day stay.



                                   19
impossible to conclude that an order requiring the parties to engage
in significant litigation-related activities can nevertheless be
considered to have stopped prosecution of the case altogether. As
we have seen, the parties met and conferred on March 20, 2013;
agreed to the exchange of various documents (see fn. 4, ante);
prepared the joint report discussing numerous topics; and
submitted the report to the court on April 8, 2013. These are
significant litigation activities that occurred while other litigation
activities (responsive pleadings and discovery) were stayed.
       Equally impossible is a conclusion that this initial stage of the
litigation, during which the parties are compelled to focus on case
management issues, is nevertheless not a “ ‘step in [the] action’ ”
(Gaines, supra, 62 Cal.4th at p. 1095). On the contrary, it seems to
us this period in the litigation is a step that contributes
significantly to the advancement of a complex action to eventual
resolution. The stay of responsive pleadings and formal discovery
during this time effectively facilitates the parties’ focus on case
management issues, including multiple issues concerning how
discovery is to be conducted. Plainly, this is a step – an important
step – in the action. Plaintiffs have offered us no basis to conclude
otherwise.
       Instead, plaintiffs refer us to the form of an initial status
conference order posted on the website of the Los Angeles Superior
Court and denominated “4/1/15 SAMPLE.”
(<http://www.lacourt.org/division/civil/pdf/InitialStatusConferenceO
rder(ComplexLitigationProgram).pdf> [as of Nov. 14, 2018].) This
sample form contains much the same language as the order entered
in this case, and it has two additions tangentially pertinent to
plaintiffs’ argument. According to this form of order, one of the
topics that the joint initial status conference report must include is:
“Whether the parties are prepared to stipulate that discovery and/or



                                  20
pleading stays entered by the Court for case management purposes
shall not be considered in determining the statutory period for
bringing the case to trial under Code of Civil Procedure
Section 583.310.” (Id., at p. 4, item 10.) The form of order also
provides: “Hereafter, all management stays, including stays of
discovery issued by the Court, shall not be considered as a stay per
Code of Civil Procedure section 583.310 unless specifically ordered
by the Court.”9 (Id., at p. 5.)
       We do not see how this order would assist plaintiffs, even if it
had been entered in this proceeding, which it was not. It is a
different (form of) order, and cannot supersede or otherwise affect
an actual order made two years earlier. But even more to the point,
no matter what a sample order may say, the superior court cannot
declare whether or not the five-year statute is tolled in any way
other than in conformance with law. If, as we have concluded, an
order has not effected a complete stay of proceedings, a trial court’s
declaration otherwise changes nothing.
       In sum, the order imposing a 43-day stay of responsive
pleadings and formal discovery was not “a complete stay ‘ “used to
stop the prosecution of the action altogether,” ’ ”and
“[s]ection 583.340(b) is therefore inapplicable.” (Gaines, supra,
62 Cal.4th at p. 1097.) Absent any other basis for tolling the five-
year statute for those 43 days – and plaintiffs suggest none – the
five-year period ended on March 2, 2018, and dismissal of the action
was mandatory.




9    Plaintiffs rely only on the second sentence quoted in the text,
and do not mention the first. Neither provision appears in the
sample order cited by plaintiffs that is an exhibit in this case.



                                  21
2.     The Trial Preference Ruling
       Defendant’s writ petition asserts a second basis for concluding
the trial court was required to dismiss plaintiffs’ action under the
five-year statute. We agree with defendant that, even if the trial
court was correct in concluding the five-year statute would not
expire until April 16, 2018, its order granting trial preference and
advancing the trial date to April 10 was a manifest abuse of
discretion.
       Several principles apply when we consider the propriety of
trial preference in the context of a class action. In this case, in
addition to its failure to apply the general factors that determine
whether trial preference is appropriate, the trial court did not
consider two important legal rules that apply to putative class
actions. These rules, together with the court’s own findings on
plaintiffs’ lack of reasonable diligence, require the conclusion that
granting trial preference was an abuse of discretion.
       a.     Fireside Bank
       Fireside Bank instructs that ordinarily courts should not
resolve the merits in a putative class action before class
certification and notice issues, without compelling justification.
(Fireside Bank, supra, 40 Cal.4th at p. 1083.) The reason for the
Fireside Bank rule is the need to protect against the harms of “one-
way intervention.” (Ibid.) One-way intervention occurs when “not-
yet-bound absent plaintiffs may elect to stay in a class after
favorable merits rulings but opt out after unfavorable ones.” (Id. at
p. 1074; see id. at p. 1083 [“in dicta we have gone so far as to
attribute to defendants a due process right to avoid one-way
intervention”].)
       Fireside Bank summarized several rules “governing the
parties’ and trial court’s orderly conduct of putative class action
cases.” (Fireside Bank, supra, 40 Cal.4th at p. 1083.) These are:



                                 22
       “First, a defendant must actively preserve its protection
against one-way intervention by objecting. If it fails to timely
object, or affirmatively seeks resolution of the merits before
certification, it will be deemed to have waived its rights.
[Citations.] Second, the plaintiffs should seek certification before
moving for any resolution of the merits. [Citation.] If they seek
certification after seeking resolution of the merits then, in the
absence of a defense waiver, they must demonstrate changed
circumstances or other good cause justifying the belated motion
before the trial court may consider it. [Citation.] Third, though
trial courts generally have broad discretion to manage and order
class affairs, in the absence of a defense waiver they should not
resolve the merits in a putative class action case before class
certification and notice issues absent a compelling justification for
doing so.” (Fireside Bank, supra, 40 Cal.4th at p. 1083, fn. omitted.)
       Plaintiffs agree that these are the rules. Their principal
contention is that Fireside Bank is inapplicable here because
defendant “unquestionably waived [its] Fireside Bank rights when
it sought to file, and did file on June 6, 2014, a dispositive motion
for summary adjudication.” We reject this claim.
       Plaintiffs did not raise this contention in the trial court – and
indeed, told the trial court in its motion for trial preference that
without a class certification decision, it was “impossible for
Plaintiffs to proceed with a trial as to the claims of the class.” And
at the hearing, when the court asked plaintiffs’ counsel whether
starting a trial before the notice period “would affect the
defendant’s rights under Fireside Bank,” plaintiffs’ counsel replied:
“I don’t see how, Your Honor. If we start trial before, we’re starting
it as an individual case because Your Honor has yet to certify a
class, so I don’t see how that would impinge upon Fireside Bank and




                                  23
their right on one-way intervention. I just don’t.” There was no
mention of waiver.
       In any event, the claim that defendant waived its Fireside
Bank rights is inconsistent with the record and with the law.
       The record does show, as plaintiffs assert, that at a hearing
on June 14, 2013, in a discussion of summary judgment motions,
the court said that if defendant filed a summary judgment motion,
“it’s only going to apply to the named plaintiffs who are in the
lawsuit now, not to other members of the class,” and “obviously
there’s no res judicata effect on anybody else.” Defense counsel
replied: “We understand that, Your Honor. And we are willing to
waive our Fireside Bank rights in this case because we think that
it’s important – [¶] . . . [¶] . . . And so . . . I think it really makes
sense to deal with these individual plaintiff issues first.” Based on
that exchange, plaintiffs now say that defendant “waived its rights
under Fireside Bank five years ago.” But the record also shows that
defendant’s waiver was related to a single cause of action. Thus:
       When plaintiffs filed a notice of ruling for the hearing at
which the above exchange occurred, they included a paragraph on
the deadline for filing the motions for summary judgment or
adjudication, and the limited discovery that was authorized relating
to the issues defendants intended to present in support of their
motions. The notice said nothing about the waiver. Defendants
then filed a counter-notice of ruling correcting that paragraph. The
counter-notice stated:
       “Based on Defendants’ willingness to waive their Fireside
       Bank protections as to certain claims if they prevail prior to
       certification of a class, the Court granted Defendants
       permission to file early summary judgment or summary
       adjudication motions against certain of the named
       Plaintiffs’ claims, without waiver of Defendants’ right to



                                   24
       file summary judgment or adjudication motions later in the
       case, either before or after a decision on class certification.”
       (Boldface & italics added.)
The record shows no objection by plaintiffs to defendants’ corrected
notice of ruling.
       Defendant then filed a summary adjudication motion
addressed to plaintiffs’ cause of action for conversion, and the trial
court granted the motion and dismissed that cause of action on
October 14, 2014.
       Waiver is the intentional relinquishment or abandonment of
a known right, and “ ‘ “always rests upon intent.” ’ ” (Lynch v.
California Coastal Commission (2017) 3 Cal.5th 470, 475.) The
record plainly shows defendant had no intention of waiving its
Fireside Bank rights with respect to anything but the claims on
which it sought summary adjudication.
       Moreover, plaintiffs misread Fireside Bank when they suggest
that a limited waiver of the sort just described somehow amounts to
an all-purpose waiver of a defendant’s right to protection against
one-way intervention for all class claims. Fireside Bank did not say
or suggest anything of the sort. Such a construction makes no
sense; it is contrary to the very purpose of the rules against one-way
intervention, which protect defendants from the no-win situation
that exists when class members can opt out if a ruling on the merits
is favorable to them and remain in the class if it is not. Fireside
Bank itself makes the point clear, repeatedly, in its discussion of
the scope of the rule. Thus, “the scope of any rule should be
coextensive with its rationale,” and the scope of the Fireside Bank
principle “depends precisely on the extent to which the ruling gives
rise to concerns about one-way intervention.” (Fireside Bank,
supra, 40 Cal.4th at p. 1084.) “What matters is the extent to which
a [summary adjudication or other] motion impacts the principal



                                  25
legal issue or issues in a case and thereby poses for the defendants
the risk of one-way intervention depending on its outcome.” (Id. at
p. 1086.)
       Here, defendant’s motion for summary adjudication of
plaintiffs’ conversion claim did not “impact[] the principal legal
issue” – whether defendant is obligated to account to and credit
profit participants based on 100 percent rather than 20 percent of
home video revenue. Plaintiffs say this is “the central issue in the
case.” Defendant has never sought a ruling on the merits of this
issue, or any issue other than plaintiffs’ conversion claim.
       A ruling on the merits of that central issue in advance of class
certification would plainly create an untenable risk of one-way
intervention. Successfully seeking summary adjudication on a
collateral claim did not waive defendant’s Fireside Bank right to
avoid one-way intervention with respect to pending class claims.
       Next, plaintiffs contend defendant is deemed to have waived
its Fireside Bank rights by “fail[ing] to timely object.” (Fireside
Bank, supra, 40 Cal.4th at p. 1083.) Plaintiffs observe that
defendant participated in the scheduling of the class certification
motion and “never objected nor raised the [Fireside Bank] issue
before filing its motion to dismiss.”
       This claim is meritless. Of course a defendant “must actively
preserve its protection against one-way intervention by objecting,”
and “[i]f it fails to timely object . . . it will be deemed to have waived
its rights.” (Fireside Bank, supra, 40 Cal.4th at p. 1083.) But we
know of no basis to conclude that a defendant must “raise the issue”
at any time before a plaintiff actually seeks a resolution of the
merits of the case. That did not happen until plaintiffs filed their
motion for trial preference.
       The only authority plaintiffs cite is Civil Service Employees
Ins. Co. v. Superior Court (1978) 22 Cal.3d 362. It does not help



                                    26
them in the slightest. In that case, the plaintiff filed a motion for
class certification and a motion for partial summary judgment of
affirmative defenses that would “resolve the principal legal issue
presented by the case.” (Id. at p. 369.) The defendant “simply
contested the merits of the [partial summary judgment] motion,”
and did not claim it was premature or should be postponed until
absent class members had been notified of the action. (Ibid.) The
trial court granted the partial summary judgment motion and
certified the case as a class action. (Id. at p. 370.) Then the
defendant sought a writ, among other things to vacate the order
granting partial summary judgment. (Id. at p. 371.) The Court of
Appeal held that “[b]y failing to object to the trial court’s
determination of plaintiff’s motion for partial summary judgment
prior to class notification, defendant waived any right it may have
had to postpone such a ruling until after such notice was provided.”
(Ibid., italics omitted.) Obviously, in the Civil Service case there
was a motion by the plaintiff for resolution on the merits to which
the defendant failed to object. That did not happen here.
       Plaintiffs’ final contention on this point is that there is a
“compelling justification” for a different result because “the trial
plan envisioned would not have resulted in one-way intervention.”
As we discuss in part c., post, the applicable legal authorities do not
permit the “trial plan envisioned” under the circumstances here,
and accordingly plaintiffs’ assertion is meritless.
       b.     Massey
       The interplay between the five-year mandatory dismissal
statute and the rule against one-way intervention – a rule that has
existed in the courts of appeal since the 1970’s (Fireside Bank,
supra, 40 Cal.4th at pp. 1079-1080) – arose and was resolved in the
Massey case.




                                  27
       In Massey, the action had been pending for more than four
years and 10 months and a trial date had been set. At the time of
the trial court’s order dismissing the class aspects of the case, there
had been “no determination as to the class aspect of the case; [and]
no notice to members of the class agreed upon, determined or
given . . . .” (Massey, supra, 56 Cal.App.3d at p. 32.) The trial court
order noted that “ ‘no meaningful or effective notice to the members
of the class prior to trial can be given.’ ” (Ibid.) The Court of
Appeal upheld the dismissal, stating:
       “It is quite true that the full five-year period had not finally
expired on . . . the date of the order appealed from. But it is
undisputed that the 34 days remaining of that period was grossly
inadequate for the giving of notice to the large and geographically
scattered class for which plaintiff purports to act and to allow even
a minimally reasonable period for exercise by the class members of
their options. To go through the mere formality of fixing notice at
that late date would have been a useless act, since dismissal,
34 days later and before completion of any reasonable notice period,
would have been mandatory. Hence we conclude that dismissal of
the class aspect of the action was proper.” (Massey, supra,
56 Cal.App.3d at p. 33, fn. omitted.)
       Here, the trial court calculated that the five-year period was
to expire on April 16, 2018. So, when the court’s March 26, 2018
ruling set the matter for trial, only 21 days remained in the five
years. Notification to class members with a reasonable time to
exercise their options, before expiration of the five-year period, was
plainly an impossibility.
       The trial court ignored Massey entirely, despite defendant’s
contention, in briefing and at the hearing, that it was directly
applicable. Plaintiffs effectively do so as well.




                                  28
      In their return, plaintiffs do not dispute the Massey holding,
but say Massey is distinguishable because they were reasonably
diligent in seeking class certification and the plaintiff in Massey
was not.10 This assertion is both irrelevant and contrary to fact.
Massey did not address reasonable diligence or the lack thereof; it
involved only the adequacy of the time remaining in the five-year
period to give notice to the class and allow class members to
exercise their options. Moreover, the distinction would fail in any
event, as the trial court expressly found plaintiffs were not
reasonably diligent, as we discuss in part d., post.
      In short, we are presented with no reason to disagree with the
holding in Massey. Absent compelling justification (Fireside Bank,
supra, 40 Cal.4th at p. 1083), a class action must be dismissed
under the five-year statute if the class issues are not decided with
enough time for notice to the class and a minimally reasonable
period for class members to exercise their options before trial
begins. The 21 days remaining in this case before the posited date
for expiration of the five-year period is even less than the 34 days
that were “grossly inadequate” in Massey.
      c.     Hartman
      Plaintiffs try to avoid these legal conclusions by contending
the Fireside Bank rule does not apply because “the trial plan
envisioned would not have resulted in one-way intervention.”
According to plaintiffs, the trial court “has procedural mechanisms



10    Plaintiffs observe that Massey did not involve “multiple
related actions” that the parties sought to keep on track; the
defendant in Massey moved for a class determination first and the
plaintiff did so only after the defendant moved for dismissal of the
class action aspect of the action; and in Massey the plaintiff
requested a delay in the hearing.


                                  29
at its disposal to provide more time for the parties’ preparation for a
full trial.” They suggest the following.
       Plaintiffs plan to move in limine to bifurcate the trial and
request a bench trial on their declaratory judgment claim, which
they say “focuses on the central issue in the case.” They
hypothesize that the trial court then has two options: it can swear
the first witness and then grant a continuance so the class can be
certified and the matter “completely tried by jury at a later time on
the merits.” For this point, plaintiffs cite Hartman, supra,
30 Cal.3d 762. “In the alternative, the trial court could actually
proceed to try the claim for declaratory judgment, and continue the
remaining phases of the trial.”
       The problem with these proposals is twofold.
       First, the trial court had, or expressed, no idea of the scope of
the trial it ordered to begin on April 10, and indeed stated that it
had not determined the order of the trial, “whether we would
proceed with a non-jury phase . . . before the other phase.” But the
court ordered the parties to file, within one week, the statement to
be read to the jury, the exhibit list, the witness list, the jury
instructions, and the verdict form. This on its face is manifestly
unfair to defendant, who has had no opportunity to conduct merits
discovery, consider expert witnesses, decide whether to move for
summary judgment, or anything else. Indeed, neither party had
any idea what sort of “trial” they would confront on April 10.
       Second, there is no legal basis under which any of plaintiffs’
proposals for commencing trial – only in order to continue it for the
many months or years that will necessarily be consumed before the
parties are actually ready for trial – can stand. Certainly, the trial
court cannot “actually proceed to try the claim for declaratory
judgment” with no opportunity for merits discovery. And the only
legal precedent permitting “the pro forma commencement of the



                                  30
trial” in order to “preserv[e] the right to a trial on the merits” in the
face of the five-year statute – Hartman – does not apply to the
circumstances in this case.
       Hartman did indeed approve a procedure for beginning a trial
and then immediately postponing it to avoid the five-year statute.
Hartman pointed out that “from time immemorial charades and
fictions have played a vital role in helping courts over, around and
under legal roadblocks which they were not quite ready to assault
head-on.” (Hartman, supra, 30 Cal.3d at p. 766; ibid. [“the pro
forma commencement of the trial . . . plays a vital part in
preserving the right to a trial on the merits”].)11
      The cornerstone of Hartman, however, was that overcrowded
court dockets “demand safety valves against unjust dismissals.”
(Hartman, supra, 30 Cal.3d at p. 766.) One such safety valve was


11     Hartman explains that this pro forma procedure was first
suggested in Miller & Lux, Inc. v. Superior Court (1923) 192 Cal.
333. In that case, dismissal was mandated, but the court
“suggested that if counsel had desired to avoid the bar of the
statute, it would have been a very simple matter, after calling the
court’s attention to the situation, to have requested that one
witness be sworn in the cases and then the hearing of the cases
continued until a time which would be convenient for the court and
the parties to the action.” (Miller & Lux, at p. 342.) The Miller &
Lux court made this suggestion after reciting extensive facts
showing the plaintiffs were ready for trial, but orally stipulated to
continuances at defense counsel’s request without the necessary
written stipulation. (Id. at pp. 335-337.) “Doubtless if objection had
been made and the trial court’s attention called to the fact that a
further continuance would have the effect of putting the case
beyond the bar of the statute, the trial court would have ordered
that the cases proceed to trial or else have exacted a written
stipulation from the defendants extending the time of the trial.”
(Id. at p. 342.)


                                   31
“the rule that if the plaintiff has obtained a trial date within the
five years and is prevented from actually going to trial because no
courtroom is open, the delay is ‘on the house.’ ” (Ibid.) But,
Hartman tells us, “the facts do not always fit [that] mold,” and that
is why the “pro forma commencement of the trial” was so important.
(Ibid.) The facts in Hartman demonstrated just such an “unjust
dismissal[].”
       In Hartman, the plaintiff had obtained several trial dates, but
the dates were continued because no judge was available; then
because defense counsel was engaged in another case; and then
because of serial challenges to the assigned judge, first by the
defendant and then by the plaintiff. The final assigned trial date
was 23 days before the fifth anniversary of the filing date, at which
time the plaintiff’s counsel was engaged in another trial that was
taking ‘ “considerably longer’ ” than had been estimated. (Hartman,
supra, 30 Cal.3d at p. 764.) The trial court permitted the procedure
of empaneling and swearing a jury, and continuing the matter until
a time convenient to the court and when the trial in which the
plaintiff’s counsel was then engaged would be finished. (Ibid.)
These were the circumstances generating Hartman’s conclusion the
five-year statute “may be avoided by going through certain rites
denoting the commencement of a trial.” (Id. at p. 765; see also
Central Mutual Ins. Co. v. Executive Motor Home Sales, Inc. (1983)
143 Cal.App.3d 791, 795 [“To avoid the problems of unavailable
courtroom and/or unavailable time for lengthy trial, use of the ‘trial-
started’ fiction is available,” citing Hartman].) 12

12    Hartman also held that a “second and entirely independent
reason why the dismissal was erroneous is the fact that legally five
years had not elapsed since the filing of the complaint.” (Hartman,
supra, 30 Cal.3d at p. 767.) This was because the challenges to the
assigned judge resulted in a delay of 11 months, and that time


                                   32
       We cannot think that Hartman intended this “safety valve[]
against unjust dismissals” to apply to circumstances where
plaintiffs were never ready for trial, and where the court found
plaintiffs did not exercise reasonable diligence in bringing the case
to the point of class certification (see pt. d., post), a point that
precedes a trial on the merits. In short, there is nothing “unjust”
about a dismissal under the five-year statute in the circumstances
of this case – quite the opposite. And that principle – the need for a
“safety valve[] against unjust dismissal” – is, in our view, a
precondition and the sine qua non for application of the Hartman
procedure. Plaintiffs have cited no cases post-Hartman (or pre-
Hartman for that matter) that suggest otherwise.
       In sum, the procedure plaintiffs suggest is, under the
circumstances of this case, a sham to avoid the mandatory
application of the five-year dismissal rule. We see no basis in law
under which we may countenance a manipulation of long-standing
legal rules on the conduct of class actions to avoid the application of
another long-standing legal rule: mandatory dismissal after
five years.
       d.     Trial preference principles
       Underlying plaintiffs’ opposition to application of the legal
rules we have described is their insistence the trial court found they
exercised reasonable diligence during the period leading up to the
class certification motion, filed four and one-half years after the
complaint. Both the law on reasonable diligence and the record,
already described in the fact section, ante, show this is not so.




should have been disregarded, so “by any reckoning, the dismissal
was premature.” (Id. at pp. 768-769.)



                                  33
             i.     The law
       The factor of reasonable diligence applies both when a trial
court is considering whether to toll the five-year statute under
section 583.340(c) (the impossibility, impracticality or futility
exception), and when the court is considering a motion for trial
preference. Thus, Gaines instructs that the “ ‘ “critical factor in
applying these [section 583.340(c)] exceptions to a given factual
situation is whether the plaintiff exercised reasonable diligence in
prosecuting his or her case.” ’ ” (Gaines, supra, 62 Cal.4th at
p. 1100.)
       Likewise, while a decision on trial preference rests in the
sound discretion of the trial court, the court must consider, among
other factors, “dilatory conduct by plaintiff,” so that a plaintiff must
“make[] some showing of excusable delay.” (Salas v. Sears Roebuck
& Co. (1986) 42 Cal.3d 342, 349, 347 (Salas); see id. at p. 347
[“although the interests of justice weigh heavily against disposing of
litigation on procedural grounds – a policy we reaffirm – that policy
will necessarily prevail only if a plaintiff makes some showing of
excusable delay”].)13
             ii.   The record
      The record demonstrates the trial court expressly found that
plaintiffs were not diligent in seeking class certification.


13    See also section 36, subdivision (e) (“Notwithstanding any
other provision of law, the court may in its discretion grant a
motion for preference that is supported by a showing that satisfies
the court that the interests of justice will be served by granting this
preference.”). Salas tells us the discretionary standard is consistent
with the legislative intent under this provision (then
subdivision (d)) “to promote diligent and orderly prosecution by
requiring plaintiffs to make some showing of excusable delay.”
(Salas, supra, 42 Cal.3d at p. 349.)


                                  34
       In the trial court, plaintiffs contended the court should add
1,035 days to the five-year rule because it was “impossible,
impracticable, or futile to complete the class certification and notice
process, let alone bring this action to trial.” The “specific
circumstances” that warranted application of that exception to the
five-year rule, they argued, included the identification of and
production under the Pioneer sample (542 days), and the parties’
desire to maintain a parallel track with the related cases
(493 days).
       The trial court rejected both contentions. As already
described, the court found the “simple process regarding the Pioneer
notice . . . is typical in the complex case,” and the Pioneer
production occurred “over three years before the five-year deadline.”
And, the court stated the five-year statute should not be tolled for
the 493 days plaintiffs attributed to maintaining the parallel track,
stating that plaintiffs “did not establish they were faced with
impossible or impractical choices between prosecuting the case and
tracking the other cases.” The court expressly rejected the notion
that plaintiffs were diligent in seeking class certification, saying
that “[i]nsofar as the class certification goes, the court does not
believe that the reasonable diligence has been exercised . . . .”
               iii. Plaintiffs’ diligence claims
       In their brief opposing the writ petition, plaintiffs do not
argue that the trial court erred when it refused to toll the five-year
statute for time spent on the Pioneer production or on maintaining
a parallel track with the related cases.14 Nonetheless, they argue
the trial court “found reasonable diligence and excusable delay
when it, first, determined that the death of the original plaintiff’s

14     In response to our question as to what circumstances tolled
the five-year period and for what periods of time, plaintiffs cited
only the 75 days as determined by the trial court.


                                  35
principal tolled the Five-Year Statute . . . and, second, granted
Plaintiffs’ motion for trial preference.” They also say, in the face of
the court’s contrary finding but without mentioning it, that “there
has been no dilatory conduct by Plaintiffs.” None of these
contentions has merit.
       Plaintiffs are literally correct on the first point, but it does not
help them. The trial court necessarily found plaintiffs exercised
reasonable diligence as it applies to the 32-day period after the
original plaintiff’s death, and no one suggests otherwise. The court
found those 32 days were excludable because “it was impossible and
impractical for plaintiff to pursue the action without a client,
without a plaintiff in this case.”
       Plaintiffs say this 32-day finding “implies a finding of
reasonable diligence.” Of course it does; as we have seen,
reasonable diligence is the critical factor in applying the
“impossible, impracticable, or futile” exceptions. (Gaines, supra,
62 Cal.4th at p. 1100.) But an implied finding of reasonable
diligence necessarily applies to the period of the excuse, not to
plaintiffs’ actions throughout the case. (See id. at p. 1101 [referring
to conditions interfering with the plaintiff’s ability to move the case
to trial “during the relevant period”].) Plaintiffs do not get a five-
year free pass on diligence simply because it could not prosecute its
case for 32 days during the first year after the complaint was filed.
       Plaintiffs’ second argument, on which it does not elaborate, is
that the trial court’s grant of trial preference itself “demonstrates
that the Respondent Court found reasonable diligence.” It does
nothing of the sort. Plaintiffs’ assertion simply begs the question.
And we cannot imply a trial court finding of reasonable diligence
when the trial court expressly found to the contrary.
       Finally, plaintiffs assert the court’s ruling on trial preference
should be upheld because “there has been no dilatory conduct by



                                    36
Plaintiffs.” They say they “expended extraordinary efforts” and any
delay “has been the result of the unique and complex nature of this
case.” They cite the Pioneer process; a “lengthy and exhaustive
discovery process as to class issues”; and they “took the depositions
of five separate persons most qualified to testify in this action.”
       Again, these claims are contrary to the trial court’s findings.
They are also unsupported in law. The Pioneer process, the
discovery process, and depositions are ordinary incidents of complex
proceedings. Just as those incidents do not demonstrate that it was
“impossible, impracticable, or futile” to bring the matter to trial,
they cannot demonstrate reasonable diligence prosecuting the case.
(See Gaines, supra, 62 Cal.4th at p. 1101 [delay caused by ordinary
incidents of proceedings is not within the contemplation of the
section 583.340(c) exceptions; plaintiffs may not “litigate piecemeal
every period, no matter how short, in which it was literally
impracticable to try the case”].)15

15     Factors besides dilatory conduct apply when a court considers
a motion for trial preference. Salas tells us the court “must
consider the ‘total picture,’ . . . including the condition of the court
calendar, dilatory conduct by plaintiff, prejudice to defendant of an
accelerated trial date, and the likelihood of eventual mandatory
dismissal if the early trial date is denied.” (Salas, supra, 42 Cal.3d
at p. 349.) But because “some showing of excusable delay” is a
necessary element (id. at pp. 347, 349), we need not address the
other elements. In any event, the other factors do not support trial
preference either. There was no evidence of the “condition of the
court calendar” (id. at p. 349) or the rights of other litigants (id. at
p. 346), but there is no suggestion the court’s calendar had anything
to do with the impending expiration of the five-year period. And it
is incontrovertible that there would be prejudice to defendant (see
pts. 2.a., b., & c., ante) from an accelerated trial date,
because (for one thing) no discovery on the merits had yet been
permitted. Indeed, only one factor supported trial preference: “the


                                   37
       In short, nothing the court said at the hearing supported a
fundamental consideration in a ruling for trial preference: that
plaintiffs are required to make “some showing of excusable delay.”
(Salas, supra, 42 Cal.3d at p. 349.) The trial court’s own findings
demonstrate there was no such showing, and plaintiffs have made
no attempt to show any lack of substantial evidence to support the
trial court’s conclusion. Indeed, plaintiffs ignore the court’s finding
entirely.
       e.     Other considerations
       We end by addressing a point that plaintiffs mention many
times in their brief, including in connection with their assertion of
reasonable diligence, to justify the court’s grant of trial preference.
As they did in the trial court, they point out that defendant
“advocated for postponement” of the filing deadline for the class
certification motion “on at least three separate occasions in order to
keep this action on the same schedule as the related cases.” They
point out that defendant proposed a deadline of six months for its
opposition to the motion, and 60 days for plaintiffs’ reply, which
would be after the March 2, 2018 date on which defendant contends
the five-year statute expired. They complain that defendant
refused to stipulate to extend the five-year deadline, despite
agreeing to and at times advocating for delay to keep the cases on
the same track.
       We suppose plaintiffs’ repeated assertions on this point are
intended to suggest, sub silencio, a claim of equitable estoppel.
(While plaintiffs in their return assert equitable estoppel as a


likelihood of eventual mandatory dismissal if the early trial date is
denied.” (Salas, at p. 349.) That is not sufficient to sustain a
motion for trial preference. If it were, the mandatory five-year
dismissal statute would be rendered irrelevant.



                                  38
“second affirmative defense,” they do not mention equitable
estoppel, or discuss the factors necessary for its application,
anywhere in their brief.) In any event, no basis exists to estop
defendant from relying on the five-year dismissal rule.
       First, when plaintiffs asserted equitable estoppel in the trial
court, citing the same points we have just described, the trial court
definitively rejected the claim. After reciting plaintiffs’ assertions
about defendant’s conduct, the court stated that equitable estoppel
requires the exercise of reasonable diligence to ensure a case is
brought to trial within the statutory period, and plaintiffs did not
exercise reasonable diligence with respect to class certification.
Again, plaintiffs do not mention this finding or assert any basis on
which we could reject it. And the record affirmatively supports it:
for example, defendant’s Pioneer production was complete by the
end of May 2015, and at a hearing on August 27, 2015, plaintiffs’
counsel told the court plaintiffs would be prepared to file its class
certification motion as to defendant “within six months from today.”
       Second, Gaines confirms there is no legal basis for the
application of equitable estoppel in this case. Gaines rejected a
contention that defendants who agreed to a partial stay were
estopped from claiming the five-year statute was not tolled during
that time. (Gaines, supra, 62 Cal.4th at p. 1097.) In Gaines,
nothing in the communications between the parties mentioned or
suggested an intent to extend the five-year period (id. at pp. 1098-
1099), and the court found no basis for estoppel (id. at p. 1100).
Gaines also tells us this:
       “We have long observed that ‘[s]tipulations [by the parties]
that merely extend the time for trial within the five-year period,
absent a showing that the parties intended otherwise, will not
extend the five-year period.’ ” (Gaines, supra, 62 Cal.4th at
p. 1092.) And: “While attempts to work cooperatively are to be



                                  39
lauded, they do not absolve litigants from the obligation to
prosecute claims within the statutory guidelines. Established case
law advised [the plaintiff] to seek an express stipulation from the
parties that the agreed-upon postponements would extend the five-
year period. [Citation.] [The plaintiff] did not do so.” (Id. at
p. 1105.) The same is true here.
      f.    Conclusion
      We find the trial court’s grant of trial preference under the
circumstances presented to it inexplicable. The court offered no
explanation at the hearing, and the factual considerations and
conclusions the court stated at the hearing uniformly supported the
opposite conclusion. So does the law.
                            DISPOSITION
      The writ petition is granted. Let a peremptory writ of
mandate issue directing the trial court to vacate its order of
March 26, 2018, denying petitioner’s motion to dismiss the action
and granting real parties’ motion for trial preference, and to enter a
new and different order granting petitioner’s motion and dismissing
the action. Costs are awarded to petitioner.



                                           GRIMES, J.
      WE CONCUR:

                        BIGELOW, P. J.



                        DUNNING, J.*

*     Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.


                                  40
Filed 11/20/18
                     CERTIFIED FOR PUBLICATION

    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                                DIVISION EIGHT

WARNER BROS.                                         B289109
ENTERTAINMENT INC.,

       Petitioner,                                   (Los Angeles County
                                                      Super. Ct. No. BC500040)
       v.

THE SUPERIOR COURT OF LOS                           ORDER CERTIFYING
ANGELES COUNTY,                                       OPINION FOR
                                                      PUBLICATION
       Respondent;

LARCO PRODUCTIONS, INC., et al.,

       Real Parties in Interest.


THE COURT:
      The opinion in the above-entitled matter filed on November
14, 2018, was not certified for publication in the Official Reports.
For good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
      There is no change in the judgment.

____________________________________________________________
BIGELOW, P. J.              GRIMES, J.         DUNNING, J. *


*        Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
