Appellant Bernadette Tanguilig brought suit against her former employer, Neiman Marcus Group, Inc. (NMG), alleging a combination of individual and class claims for wrongful termination in violation of public policy and multiple violations of the California Labor Code. Early in the trial court proceedings, NMG successfully demurred to Tanguilig's wrongful termination and related claims, and several years later, moved to dismiss the remaining claims pursuant to California's five-year dismissal statute,
Finding no merit to any of the assigned errors, we affirm.
II. BACKGROUND
Tanguilig was employed by NMG, a Texas-headquartered luxury fashion retailer, at its San Francisco location from 2002 to 2007. At the core of this case is an arbitration agreement (the NMG Agreement or the NMG Arbitration Agreement) which NMG introduced in July 2007. NMG notified its employees that acceptance of the NMG Agreement was a mandatory condition of employment which would be implied for all employees who continued to work at any NMG location beyond July 15, 2007. Tanguilig took the view the NMG Agreement violated California public policy, objected to it, and unsuccessfully tried to negotiate with NMG over its terms. When this attempt at negotiation failed, Tanguilig chose not to return to work after July 15 to avoid being bound by the NMG Agreement, and as a result, NMG treated her failure to show up for work as a voluntary resignation.
Tanguilig sued, originally bringing this action in August 2007. She filed her First Amended Complaint (FAC) on December 19, 2007, alleging 10 causes of action against NMG: (1) wrongful termination in violation of public policy; (2) wrongful retaliation for refusing to consent to the NMG Agreement; (3) wrongfully requiring employees to agree to allegedly illegal terms in violation of Labor Code section 432.5 ; (4) failure to provide 10-minute rest periods in violation of Labor Code section 226.7 ;
What followed was a long, complex series of procedural events over the next six years, eventually culminating in the dismissal of Tanguilig's claims in February 2014 pursuant to section 583.310. For the sake of clarity, we divide this procedural history into four major periods.
A. Tanguilig's Initial Suit
From August 2007 until March 2011, Tanguilig proceeded as the sole plaintiff in the action,
In March 2008, NMG demurred to counts 1, 2, 3, 9, and 10 of the FAC, and moved to strike additional portions of that complaint. In June of that year, Judge Kramer granted the relief sought by NMG, sustaining the demurrer as to counts 1, 2, 3, 9, and 10 without leave to amend, and striking substantial portions of the FAC, effectively eliminating claims 4, 5, 6, and 7 subject to amendment. From June to September 2008, Tanguilig sought writ review from this court. We ultimately denied her petition.
Tanguilig filed her SAC in October 2008, adding class action allegations. The SAC revived some of the claims from the FAC, alleging seven causes of action, including a PAGA claim and several other claims she sought to pursue on behalf of a putative class: (1) violation of Labor Code sections 226.7 and 512 ; (2) violation of Labor Code section 226 ; (3) violation of Labor Code sections 510 and 1198 and IWC Wage Order 4; (4) violation of Labor Code section 1194 and IWC Wage Order 4; (5) violation of Labor Code sections 201 and 202 ; (6) violation of Labor Code section 2699 et seq. (PAGA); and (7) violation of Business and Professions Code section 17200 et seq.
To support her class allegations, Tanguilig sought employee records and other information through various discovery requests directed to NMG over the next two years. She says this proved difficult, as NMG was recalcitrant in responding to her discovery, although she eventually received enough information to move for class certification on June 22, 2011. Judge Kramer deferred decision on class certification, however, in part because of Tanguilig's decision to further amend her complaint.
In March 2011, Tanguilig added as a co-plaintiff Juan Carlos Pinela, an employee at NMG's Newport Beach store from November 2007 to October 2009, who, unlike Tanguilig, had signed the NMG Agreement. Tanguilig and Pinela together filed a Third Amended Complaint (TAC), which reiterated the claims in the SAC, except it removed all references to the IWC Wage Order and added an additional claim.
While ordering that Pinela could not go forward with his seven non-PAGA claims in superior court, Judge Kramer expressly permitted Tanguilig to proceed with her claims on behalf of the putative class except for any class members who were bound by the NMG Agreement. This caveat limited Tanguilig's class representation to current or former NMG employees who had not signed the NMG Agreement. Consistent with that limitation, Judge Kramer also stayed the portion of the PAGA claim asserted by Tanguilig and Pinela pertaining to anyone subject to the NMG Agreement. We denied writ review of the Arbitration Order in January 2012.
C. The Reconsideration Period
Following our denial of writ relief, Tanguilig and Pinela asked Judge Kramer to reconsider the Arbitration Order. At the same time, Pinela took initial steps toward compliance with it by filing a request for arbitration with the American Arbitration Association. Before an arbitration panel was appointed, however, on November 8, 2012, Judge Kramer, proceeding on his own motion, vacated the Arbitration Order and issued a new order denying NMG's motion to compel arbitration. NMG appealed, and we subsequently
Immediately after Judge Kramer vacated the Arbitration Order, Tanguilig renewed her efforts to bring the case to trial, requesting a trial date for at least her PAGA claim because there was no dispute that it was still within the trial court's jurisdiction. In a case management report filed on November 9, 2012, Tanguilig advised the court that the action was nearing the five-year deadline from the filing of the action (measured from the filing of the FAC, which first asserted the Labor Code and UCL claims that remained in the TAC), but took the position that under section 583.340, subdivision (c)-which provides for tolling when it is impossible, impracticable or futile to bring an action to trial-the running of the five-year dismissal statute was suspended while the Arbitration Order was in effect, and thus the actual deadline was still at least a year away. Rather than set the PAGA claim for trial immediately, Judge Kramer asked for further briefing on the request to set a trial date, and set a hearing on the matter for February 2013.
D. Reassignment to Judge Karnow
In January 2013, the case was transferred from Judge Kramer to the Honorable Curtis E.A. Karnow. Before deciding the motion to set a trial date, Judge Karnow elected first to resolve a motion for summary adjudication filed by NMG. After denying summary adjudication in September 2013, Judge Karnow issued an order in December 2013 setting Tanguilig's PAGA claim for trial commencing April 1, 2014.
In December 2013, a few months prior to the scheduled trial date on the PAGA
Immediately following the five-year dismissal, NMG, as the prevailing party, filed a costs memorandum, to which Tanguilig responded with a motion
III. DISCUSSION
Tanguilig contends the five-year period for bringing this action to trial under section 583.310 was tolled by a total of 842 days. In support of her tolling argument, Tanguilig claims three discrete periods should be excluded from the five-year period under section 583.340, subdivision (c): (1) the 351 days during which Judge Kramer's Arbitration Order was in effect (i.e., from November 2011 to November 2012); (2) the 99-day period beginning in June 2008 when she sought writ review from this court following the dismissal of her FAC; and (3) the 392-day period from November 2012 to December 2013 following her request to set her PAGA claim for trial. Adding these three periods together, Tanguilig claims a total cumulative extension of the statutory deadline for bringing her case to trial until sometime in April 2015. The dismissal of her TAC before that date, she contends, was error.
On this, the central issue presented by Tanguilig's appeal, we reject her interpretation of section 583.340, subdivision (c), and affirm Judge Karnow's dismissal order under section 583.310. In arriving at this disposition, we need not go beyond the first of Tanguilig's claimed tolling periods. Because she is not entitled to tolling for the 351 days Judge Kramer's Arbitration Order was in effect, the five-year deadline under section 583.310 for commencing trial expired in December 2012 when trial had not commenced as of that point. We conclude that Tanguilig waived her tolling contentions based on the other two periods by failing to raise them properly in the trial court.
Our ultimate conclusion on the five-year statute issue-that Judge Karnow did not abuse his discretion in dismissing Tanguilig's claims under section 583.310-dictates the result on the next assigned error, focusing on Judge Kramer's dismissal of certain of her claims early in the history of the case. By this appeal, Tanguilig seeks review of an order sustaining NMG's demurrer in 2008 and dismissing her claims 1, 2, 3, 9 and 10 as originally pleaded. That ruling is moot because these claims would have been subject to dismissal under section 583.310 eventually, even had Judge Kramer overruled NMG's demurrer and kept them in the case. Thus, the challenged
Finally, we decline to disturb the trial court's award of costs to NMG. Tanguilig's primary attack on the cost award assumes she is entitled to reversal on the five-year issue, which she is not. She also claims some
We now turn to a fuller explanation of our reasoning, taking each of these issues in turn.
A. The Dismissal Under Section 583.310
1. Applicable Legal Principles and Standard of Review
Section 583.310 provides that "an action shall be brought to trial within five years after the action is commenced against the defendant." " ' "A 'trial' within the meaning of section 583 is the determination of an issue of law or fact which brings the action to the stage where final disposition can be made." [Citation.]' [Citation.] A case is brought to trial if it has been assigned to a department for trial, it is called for trial, the attorneys have answered that they are ready for trial, and proceedings begin, even if the proceeding is a motion for judgment on the pleadings." ( Bruns v. E-Commerce Exchange, Inc. (2011)
Normally, " '[c]ommencement' of an action for purposes of section 583.310... is firmly established as the date of filing of the initial complaint." ( Brumley v. FDCC California, Inc. (2007)
Section 583.340 provides that, "[i]n 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: [¶] ... [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." Section 583.340 is construed liberally, consistent with the policy favoring trial on the merits. ( Dowling v. Farmers Ins. Exchange (2012)
Courts evaluate impossibility, impracticability, or futility " 'in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.' ... A plaintiff's reasonable diligence alone does not preclude involuntary dismissal; it is simply one factor for assessing the existing exceptions of impossibility, impracticability, or futility.... Determining whether the [section 583.340,] subdivision (c) exception applies requires a fact-sensitive inquiry and depends 'on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff's exercise of reasonable diligence in overcoming those obstacles.' ... ' "[I]mpracticability and futility" involve a determination of " 'excessive and unreasonable difficulty or expense,' " in light of all the
Appellate review of a trial court's determination of whether section 583.310 was tolled for impossibility, impracticability, or futility is limited. This is because trial courts are best equipped to evaluate the complicated factual matters that could support such a finding. ( Bruns , supra ,
2. It Was Not Impossible, Impracticable or Futile to Commence Trial in the Action During the 351-Day Period the Arbitration Order Was In Effect.
Judge Karnow was within his discretion to rule that a trial of Tanguilig's claims was not impossible, impracticable or futile during the 351-day period the Arbitration Order was in effect. In so ruling, he considered and rejected three specific circumstances that Tanguilig claimed justified tolling during this period: (1) NMG's alleged delay in producing evidence in response to class discovery requests; (2) the alleged delay of Tanguilig's class certification motion due to NMG's motion to compel arbitration of Pinela's claims; and (3) the order sending Pinela's claims to arbitration, which allegedly blocked that portion of the case from being set for trial. With respect to the first two of these circumstances, Judge Karnow found that "time spent on
Apparently recognizing that our review of Judge Karnow's findings on the issue of impossibility, impracticability or futility is highly deferential, Tanguilig's primary tolling argument on appeal is not factual, but legal. She seeks de novo review on the ground that Judge Karnow erred legally by misinterpreting the scope of Judge Kramer's Arbitration Order. "So long as the ... Arbitration Order-and its stay of any PAGA claim on behalf of ... [e]mployees [who signed the NMG Agreement]-remained in place," Tanguilig argues, "it would have been impossible for [her] to bring to trial a representative PAGA claim covering all of the employees who were 'employed by NMG in California from December 19, 2004 to the present.' [Citation.] [¶] Similarly, it would have been impossible for Tanguilig to try, or to seek certification of, claims brought on behalf of the entire putative class until after Judge Kramer vacated the Arbitration Order." In essence, she reads the statutory term "action" in section 583.310 to mean every one of her claims, in the full breadth she pleaded them. And since some aspects of
The argument is creative, but ultimately misguided. In support of her reading of section 583.310, Tanguilig relies primarily on Nassif v. Municipal Court (1989)
Judge Karnow, too, saw Nassif as distinguishable, observing that he could find "no good authority ... that the statute at issue, § 583.310 and its tolling provisions, apply to entire 'actions' and not any component claims." He found better guidance in Khoury v. Comprehensive Health Agency, Inc. (1983)
Of more significance here than either Nassif or Khoury is the California Supreme Court's decision in Bruns , supra ,
Under Bruns , Judge Karnow's task was to "determine what [was] impossible, impracticable, or futile 'in light of all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying [ section 583.340 ] to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case.' " ( Bruns , supra ,
Applying Bruns , was it impossible, impracticable, or futile to bring Tanguilig's case to trial in timely fashion after Judge Kramer sent Pinela and all other signatories to the NMG Arbitration Agreement to arbitration? Judge Karnow clearly believed
Given the fact-sensitive nature of the section 583.340, subdivision (c), inquiry, normally that would be the end of the matter on appeal, but Tanguilig's claim of legal error and request for de novo review complicates things somewhat. As noted above, she contends Judge Karnow botched his reading of the Arbitration Order; according to her, he mistakenly thought that "none of ... [her] ... PAGA claims were stayed," when, as a matter of law-at least in her reading of the Arbitration Order-she was precluded from proceeding on those portions of her claims (both her PAGA claim and her class claims) concerning employees who signed the NMG Arbitration Agreement. Whether she is right or wrong about Judge Karnow's purported failure to recognize that portions of her claims were stayed-some of the language in the Arbitration Order is indeed ambiguous on the point-the conclusion she urges upon us, that she is entitled to tolling for impossibility, impracticability or futility while the Arbitration Order was in effect, is still unsustainable. Undergirding the line of argument Tanguilig advances about the correct interpretation of the Arbitration Order is the same flawed premise on which her "entire action" argument rests: She assumes she had a right to proceed to trial with every claim she pleaded, in its full breadth, and she seems to believe that any obstacle to trying all of those claims, as expansively as she alleged them, qualifies as a condition of "impossibility" within the meaning of section 583.340, subdivision (c). That is not so as a general matter-which is why the applicability of this exception is situational-and it is not so on this record either.
"[C]ase law" under section 583.310 has "long held that '[f]or the tolling provision of section 583.340, subdivision [ (c) ] to apply, there must be
Finally, Tanguilig insists that while the Arbitration Order was in effect it was, at a minimum, impossible to proceed with the motion for class certification jointly filed by Tanguilig and Pinela or to try all class claims jointly asserted by them. We see this as just a variation of the argument that any obstacle to trying every claim she pleaded, in the full breadth she pleaded it, justified tolling across the board. We reject it for the reasons outlined above, but we also think the argument, framed in this way to highlight what Tanguilig characterizes as "joint" litigation by allied parties, conflicts with Brumley, supra,
Turning to Tanguilig's two additional claimed tolling periods-the 99-day period beginning in June 2008 when she sought writ review from this court following the dismissal of her FAC,
It is elementary that an appellant may not raise a new theory on appeal when the theory rests on facts that were either controverted or not fully developed in the trial court. ( People ex rel. Totten v. Colonia Chiques (2007)
Upon close review of the record, we think NMG has the better of the argument concerning whether Tanguilig preserved a claim to tolling during
According to Tanguilig, Judge Karnow never considered the 392-day tolling issue because, in his order of dismissal, he relied solely on what she claims was his erroneous rejection of her claim to the 351 days. (Appellant's Reply Brief at p. 13 ["In light of his erroneous determination that entry
Indulging Tanguilig's request for clarification on this specific point, Judge Karnow allowed the parties to present supplemental briefs. These briefs were filed simultaneously on February 21, 2014. In the introduction to Tanguilig's supplemental brief, she explains why she sought clarification and what relief she requested, as follows: "In its February 4, 2014 Order on Defendant's motion to dismiss Tanguilig's claims pursuant to C.C.P. § 583.310, this Court did not address the effect of [the Arbitration Order] ... precluding Tanguilig from proceeding with any of her claims to the extent that they were brought on behalf of [employees who signed the NMG Arbitration Agreement]. It should do so now and should hold that-even if Judge Kramer's decision to divide Tanguilig's claims from Pinela's claims does not establish a basis for tolling the five-year period of C.C.P. § 583.310 -rulings subdividing and partially staying Tanguilig's own claims made it impossible, impracticable or futile for her to bring those claims to trial until Judge Kramer's Arbitration Order was vacated. In the alternative, the Court should limit any order of
As announced in the introduction to Tanguilig's supplemental brief, virtually all of the discussion in her 20 pages of supplemental argument addressed the meaning of Judge Kramer's Arbitration Order, its effect on claims she brought "on behalf of" employee signatories to the NMG Arbitration Agreement, and how that issue impacted Judge Karnow's analysis of her claimed 351-day tolling period. Then, on page 17 of the brief, in a short passage at the end of a section of an argument discussing tolling generally, without any sub-section heading specifically flagging the 392-day period as an issue, the following contention appears as a last argument, framed in the alternative: "Whether the December 20, 201[2]
Unquestionably, this alternative argument tucked at the end of Tanguilig's supplemental brief puts forth in specific terms the 392-day tolling contention she now
It seems clear that Judge Karnow treated the supplemental briefing following his February 4 order as nothing more than an opportunity for the parties to provide argument on Tanguilig's claim that he had misinterpreted Judge Kramer's Arbitration Order, an issue that was only relevant because, as the tolling issue was framed in his order of dismissal-which tracked how the parties framed it in the briefs on the motion to dismiss-his tolling analysis turned on the 351-day period during which the Arbitration Order was in effect. After considering the supplemental briefs, and holding an additional hearing on February 26, 2014, Judge Karnow issued an "Order Clarifying Order of February 4, 2014" addressing only the interpretive issue Tanguilig had raised, and nothing more. In a footnote, Judge Karnow noted the broader
B. The Demurrer
In addition to her attack on the five-year dismissal, Tanguilig appeals from Judge Kramer's 2008 order sustaining
C. The Costs Award
As a final matter, Tanguilig asks that we reverse the trial court's award of costs to NMG if we reverse either the dismissal order or the order sustaining the demurrer, as NMG will then no longer be considered a prevailing party. ( Acosta v. SI Corp. (2005)
In one last attempt at appellate relief on the costs issue, Tanguilig contends because she and Pinela jointly filed the TAC, and because Pinela can still proceed with his putative class claims against NMG, NMG cannot be considered the prevailing party as to him. When Tanguilig raised this argument below, Judge Karnow found that Tanguilig failed to meet her burden to show which costs were allocable to Pinela. (See Acosta , supra , 129 Cal.App.4th at pp. 1376, 1380,
Affirmed.
We concur:
Reardon, J.
Schulman, J.
Notes
All further statutory references will be to the Code of Civil Procedure unless otherwise specified.
Counts 4 through 7 of the FAC also alleged a violation of Industrial Welfare Commission (IWC) Wage Order 4.
Although Tanguilig brought suit under PAGA and her Second Amended Complaint (SAC) (filed in October 2008) added class action allegations, she did not file a motion for class certification during this period.
This additional claim, failure to pay earned wages in violation of the Labor Code, became claim 5 in the TAC, changing claims 5, 6, and 7 in the SAC to claims 6, 7, and 8 in the TAC respectively.
Judge Karnow only dismissed Tanguilig's claims, not Pinela's. Because Pinela's claims were stayed while the Arbitration Order was on appeal, the five-year period to bring his claims to trial had not expired. (NMG did not move to dismiss Pinela's claims.)
Tanguilig cites as recent authority decided post-briefing in this case our Supreme Court's acknowledgment in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017)
Then, as now, Civil Code section 3295, subdivision (d), provides that "[e]vidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud."
Tanguilig suggests Brumley should be read as having created a special exception to what she claims is the general rule that the term "action" in section 583.310 means the entire action, an exception that encompasses only suits involving causes of action that do not relate back to the original complaint. We do not read the case so narrowly. The Brumley court noted that Barrington , supra , 39 Cal.3d at pages 155-156,
We denied Tanguilig's writ petition on September 8, 2008. She calculates the 99-day tolling period as extending from June 30, 2008 (the date Judge Kramer entered his order as to the demurrer and motion to strike) until 30 days after this court's denial of writ review (since Judge Kramer had set that as the deadline to file a Second Amended Complaint).
The actual text says "December 20, 2013," which appears to be a typographical error. Two paragraphs earlier, when setting up the premise of this tolling section of the argument, Tanguilig states: "The five-year period of C.C.P. § 583.310 is ... calculated from the date the FAC was filed-December 19, 2007. [Citation.] Five years from that date is December 20, 2012."
We note that, when, in November 2012, Tanguilig requested a trial date, the five-year statute was about to expire in a matter of weeks, on December 19, 2012. Thus, the situation called for some urgency. But rather than raise an alarm and communicate to Judge Kramer the need to address the issue of trial-setting immediately, or to order a stay-which is what happened in Kaye , supra ,
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.