Tanguilig v. Neiman Marcus Grp., Inc.
22 Cal. App. 5th 313
Cal. Ct. App. 5th2018Background
- Tanguilig sued Neiman Marcus (NMG) after she refused to accept a mandatory arbitration agreement and resigned in 2007; her FAC (Dec. 19, 2007) pleaded multiple individual, class, PAGA, and UCL claims.
- NMG successfully demurred to several counts in 2008; Tanguilig later added a co-plaintiff, Pinela (a signatory to NMG's arbitration agreement), and filed a TAC.
- Judge Kramer granted NMG's motion to compel arbitration as to Pinela in Nov. 2011 (staying claims of employees who signed the agreement) but allowed Tanguilig to proceed for non-signatories; that arbitration order was vacated on reconsideration in Nov. 2012.
- The trial court later reassigned the case to Judge Karnow; NMG moved in Dec. 2013 to dismiss under CCP §583.310 (five-year dismissal statute) for failure to bring the action to trial.
- Judge Karnow dismissed all of Tanguilig’s remaining claims in Feb. 2014 for failure to commence trial within five years; Tanguilig appealed, also challenging the 2008 demurrer and a costs award to NMG.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the five-year period under CCP §583.310 was tolled under §583.340(c) while Judge Kramer’s arbitration order was in effect (351 days) | Tanguilig: the arbitration order made it impossible/impracticable/futile to try representative PAGA and class claims that encompassed signatories; entire "action" was stalled, so time tolled | NMG: arbitration order only affected signatories (partial stay); it did not make trial impossible for Tanguilig’s non-signatory claims; any delay was foreseeable and invited | Court: no abuse of discretion in finding §583.340(c) did not toll the 351 days; partial stay does not automatically toll, and Tanguilig failed to prove impossibility/impracticability/futility |
| Tolling for 99-day writ period after 2008 demurrer | Tanguilig: period while writ review was pending should be excluded | NMG: plaintiff waived or failed to preserve this tolling claim | Held: plaintiff failed to preserve/adequately raise this tolling claim in the trial court (waived) |
| Tolling for 392-day period (Nov. 2012–Dec. 2013) after vacatur while waiting for trial-setting rulings | Tanguilig: alternate argument that while motion for trial setting was pending it was impracticable to proceed, so that time tolled | NMG: trial court never ruled on that period because plaintiff did not present it properly | Held: argument not preserved—plaintiff raised it too late (in supplemental briefing) and thus waived |
| Challenge to 2008 demurrer sustaining several counts | Tanguilig: demurrer was erroneous and she should be allowed to pursue those claims | NMG: even if error, any reversal would be moot because the entire suit was later dismissed under §583.310 | Held: moot; no prejudice shown because those claims would have been dismissed under the five-year rule anyway |
| Costs award to NMG and allocation relative to Pinela | Tanguilig: costs inappropriate because NMG did not prevail as to all plaintiffs (Pinela ultimately avoided arbitration) | NMG: prevailing party; plaintiff failed to prove allocation to Pinela | Held: affirmed; plaintiff failed to meet burden to allocate costs or show error in prevailing-party determination |
Key Cases Cited
- Bruns v. E-Commerce Exchange, Inc., 51 Cal.4th 717 (2011) (describes limits of tolling under §583.340 and standard for partial stays)
- Brunzell Constr. Co. v. Wagner, 2 Cal.3d 545 (1970) (fact-sensitive inquiry for tolling; court must examine relationships among causes of action and plaintiff diligence)
- Khoury v. Comprehensive Health Agency, Inc., 140 Cal.App.3d 714 (1983) (arbitration of one defendant’s claim does not necessarily toll five-year period for other defendants)
- Brumley v. FDCC California, Inc., 156 Cal.App.4th 312 (2007) (relation-back doctrine and commencement date for §583.310)
- Gaines v. Fidelity Nat. Title Ins. Co., 62 Cal.4th 1081 (2016) (tolling under §583.340 requires showing plaintiff exercised reasonable diligence)
- De Santiago v. D & G Plumbing, Inc., 155 Cal.App.4th 365 (2007) (§583.340 construed liberally but requires fact-specific showing of impracticability or futility)
- Nassif v. Municipal Court, 214 Cal.App.3d 1294 (1989) (discussion of whether "action" means suit vs. cause of action)
- Kaye v. Mount La Jolla Homeowners Assn., 204 Cal.App.3d 1476 (1988) (circumstances supporting tolling where scope of trial would be narrowed by pending appellate/writ proceedings)
Disposition: Affirmed.