Bruns v. E-Commerce Exchange 3/23/09 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B201952

Case Date: 07/23/2009

Preview:Filed 3/23/09

CERTIFIED FOR PARTIAL PUBLICATION

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

DANA BRUNS, Plaintiff and Appellant, v. E-COMMERCE EXCHANGE, INC., et al., Defendants and Respondents.

B201952 (Los Angeles County Super. Ct. No. JCCP 4350)

APPEAL from a judgment of the Superior Court of Los Angeles County, Carolyn B. Kuhl, Judge. Reversed and remanded. Law Offices of Kevin M. Tripi, Kevin M. Tripi for Plaintiff and Appellant. Horvitz & Levy, Bradley S. Pauley, Robert H. Wright; Bremer Whyte Brown & OMeara, Nicole Whyte and Stephanie N. Rachel for Defendant and Respondent ECommerce Exchange, Inc. Duane Morris, Max H. Stern, W. Andrew Miller, Jessica E. La Londe for Defendants and Respondents CSB Partnership; Chris & Tad Enterprises; CSB & Ellison, LLC; CSB & Hinckley, LLC; CSB & Humbach, LLC; CSB & McCray, LLC; and CSB & Perez, LLC. Quinn Emanuel Urquhart Oliver & Hedges, Jon Steiger, G. Lisa Wick, Andrea L. Manka for Defendant and Respondent Flagstar Bank.
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Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts II and III.

Casello & Lincoln, James H. Casello for Defendants and Respondents Clayton Shurley dba Clayton Shurleys Texas BBQ; Clayton Shurleys Texas BBQ, Inc.; Clayton Shurleys Real BBQ, Inc.; Elliot McCrosky dba California Homefinders and E&N Financial; Daniel Quon; Daniel E. Quon, O.D., Inc.; and Fax.com, Inc.

INTRODUCTION Plaintiff and appellant Dana Bruns (plaintiff) brought an action in the Orange County Superior Court in 2000. There were various amendments and substitutions of parties. The trial court stayed proceedings and then lifted the stay for discovery. It then stayed proceedings pending resolution of an appeal in another case. There were further stays of discovery and a stay of all proceedings in connection with a petition for coordination with other cases. The petition for coordination was granted and the case transferred to the Los Angeles Superior Court. Plaintiff obtained a default as to certain defendants. Proceedings were again stayed, with that stay lifted only for purposes of serving unserved parties. Ultimately the discovery stay was lifted. The trial court granted a motion to dismiss the action pursuant to Code of Civil Procedure section 583.360, which requires dismissal of an action not brought to trial within five years of the commencement of the action. The trial court, under section 583.340, subdivision (b) excluded from the computation of time when an action must be brought to trial, only periods when the entire action was stayed. The trial court did not rule on the alternative motion to dismiss under section 583.210 for the failure of plaintiff to serve a party with a summons and complaint. Discretionary dismissal under section 583.410, subdivision (a) was not raised in the trial court. On appeal from the judgment entered in the dismissal order, we hold that a partial stay of an action constitutes a stay of the prosecution of the action within the meaning of section 583.340, subdivision (b), and therefore, the trial court erred in dismissing the
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All further statutory references are to the Code of Civil Procedure unless otherwise

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action under section 583.360. As discussed in the unpublished portion of this opinion, we remand the matter to the trial court to rule on the motion brought under section 583.210--failure to serve timely the summons and complaint.

BACKGROUND On February 22, 2000, plaintiff brought an action in Orange County Superior Court on behalf of herself and a putative class of others similarly situated, against defendant and respondent E-Commerce Exchange, Inc. (ECX), Flagstar Bank, Clayton Shurleys Texas BBQ, and Does 1 through 500, inclusive, for allegedly sending unsolicited advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. section 227(b)(1)(C). Through subsequent amendments ending in a fifth amended complaint and substitutions for fictitiously named defendants, plaintiff added causes of action for violation of Californias Unfair Competition Law (UCL) (Bus. & Prof. Code,

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