1

Filed 3/5/13 Misuraca v. Lyons CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MALCOLM A. MISURACA,

Plaintiff and Appellant,

v.

DAVID LYONS et al.

Defendants and Respondents.

 

 A133378, A135026

 (Marin County Super. Ct.

 No. CIV 063033)

Malcolm A. Misuraca, proceeding in propria persona here and below, appeals 

from orders of the trial court dismissing his suit against defendants David and Phyllis 

Lyons (the Lyons), because it had not come to trial within five years from the time it was 

filed, and awarding attorney‟s fees to the Lyons. We find no merit in Misuraca‟s 

arguments that the trial court should have estopped the Lyons from seeking dismissal and 

that the court abused its discretion in ordering the dismissal. Accordingly, we affirm the 

dismissal of Misuraca‟s suit against the Lyons. Because Misuraca‟s request for reversal 

of the award of attorney‟s fees is dependent on reversal of the dismissal, we also affirm 

the award of attorney‟s fees.

BACKGROUND

In July 2006, Misuraca filed suit to recover $57,451.61 in allegedly unpaid 

attorney‟s fees and costs from the Lyons and from Nacio Systems, Inc. (Nacio), which 

had allegedly guaranteed payment on behalf of Lyons. Lyons cross-complained against 

Nacio for indemnity. Nacio filed a cross-complaint against the Lyons for indemnity, 
2

contribution and for damages for malfeasance in office, fraud, and wrongful conversion 

of corporate assets. 

Nacio filed for bankruptcy and, in February 2008, filed a notice of an automatic 

stay in the superior court. The notice of stay stated that it applies to the parties “Nacio 

Systems, Inc., a Nevada corporation, David Lyons, [and] Phyllis Lyons.” 

In a December 19, 2008 case management statement, Nacio stated, in regard to 

when it would not be available for trial: “Case is subject to Bankruptcy Court stay for 

Nacio Systems (Nevada) and by court and counsel‟s agreement is stayed as to all parties 

pending bankruptcy resolution due to central position Nacio Nevada plays in the 

proceedings.” Nacio stated this again in its March 24, 2009 case management statement, 

but moved it to the “Other Issues” section as an additional matter to be considered or 

determined at the case management conference. 

In a March 3, 2010 case management statement, the Lyons stated in their 

description of the case: “Parties in this action continue to be subject to the Bankruptcy 

automatic stay.” 

In a February 16, 2011 case management statement, the Lyons stated in their 

description of the case: “Misuraca is stayed from proceeding against Nacio in the main 

action. Likewise, the Lyons are stayed from proceeding against Nacio in its crosscomplaint for indemnification. However, Nacio‟s cross-complaint against the Lyons . . . 

for contribution, malfeasance, conversion of corp. assets, etc., is not stayed. The 

Bankruptcy trustee has not indicated how it intends to proceed. However, Misuraca & 

Lyons cannot prosecute their complaint and cross-complaint with Nacio as a party.” In 

the section concerning trial date, they stated: “Misuraca‟s main action and the Lyons 

cross-complaint cannot be prosecuted as long as Nacio‟s bankruptcy is pending & 

remains a party.” 
3

In July 2011, the Lyons filed a motion, pursuant to Code of Civil Procedure 

section 583.310 et seq.,1to dismiss Misuraca‟s complaint because five years had passed 

since Misuraca filed the action. They argued that because a bankruptcy stay protects only 

the debtor, and not related third parties, Misuraca was obligated to prosecute his case 

against them, but had failed to do so. 

Misuraca opposed the Lyons‟ motion, arguing that the Lyons were mistaken “that 

a stay for one defendant in California litigation obligates the plaintiff to seek to bring the 

rest of the defendants to trial within five years.” 

The court dismissed Misuraca‟s complaint against the Lyons on August 29, 2011, 

finding that Misuraca had failed to establish the existence of impossibility, 

impracticability, or futility preventing him from bringing the case to trial within five 

years. Misuraca timely appealed. The trial court subsequently awarded attorney‟s fees to 

the Lyons, pursuant to Civil Code section 1717. Misuraca filed a second appeal, 

requesting that we reverse the grant of attorney‟s fees if we reverse the dismissal of his 

case against the Lyons.

DISCUSSION

I. Legal Background and Standard of Review

Section 583.310 provides: “An action shall be brought to trial within five years 

after the action is commenced against the defendant.” In computing this five-year period, 

time may be excluded for the following reasons: (1) “jurisdiction of the court to try the 

action was suspended”; (2) “[p]rosecution or trial of the action was stayed or enjoined”; 

and (3) “[b]ringing the action to trial, for any reason, was impossible, impracticable, or 

futile.” (§ 583.340.)

The provision allowing exclusion of time for impossibility, impracticability, or 

futility “must be liberally construed, consistent with the policy favoring trial on the 

merits.” (De Santiago v. D &G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 371.) “The 

determination „of whether the prosecution of an action was indeed impossible, 

 

1

 Unless otherwise indicated, all code references hereafter are to the Code of Civil 

Procedure.
4

impracticable, or futile during any period of time, and hence, the determination of 

whether the impossibility exception to the five-year statute applies, is a matter within the 

trial court‟s discretion. Such determination will not be disturbed on appeal unless an 

abuse of discretion is shown. [Citations.]‟ ” (Sanchez v. City of Los Angeles (2003) 109 

Cal.App.4th 1262, 1271.)

II. Misuraca’s Claim of Estoppel

Misuraca claims that the Lyons and Nacio led the trial court into error by 

claiming, for five years, that Nacio‟s bankruptcy stay applied to Misuraca‟s action against 

the Lyons, and then, when the five-year period for bringing his suit to trial had passed, 

changing their representations to the court and moving for dismissal. Because of the 

Lyons‟ alleged misrepresentations to the court, Misuraca argues that they should be 

estopped from seeking dismissal under section 583.310. As evidence of the alleged 

misrepresentation, Misuraca cites the passages, quoted above, from the notice of stay and 

case management statements.

“The doctrine of equitable estoppel is applicable to section 583.310 dismissal 

motions. [Citations.] If a trial court finds statements or conduct by a defendant which 

lulls the plaintiff into a false sense of security resulting in inaction, and there is 

reasonable reliance, estoppel must be available to prevent defendant from profiting from 

his deception.” (Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1341.)

Misuraca undermines his case for estoppel by conceding that, even if the Lyons 

made the misrepresentations he alleges, he did not accept them.2 Because Misuraca 

believed that the bankruptcy stay did not apply to his action against the Lyons, he cannot 

attribute inaction on his part to the Lyons‟ alleged misrepresentations.

However, Misuraca‟s actual claim is that the Lyons misled the court, not him. The 

problem for Misuraca is that he fails to explain what actions the court took, adverse to 

him, that were the result of the alleged misrepresentations. During the five years the case 

 

2

 Misuraca asserts that he “disputed the claim that the bankruptcy stay applied to 

the Lyons . . . .”
5

was on the docket, the court did routinely continue case management conferences a few 

months at a time, but Misuraca does not argue that he opposed these continuances. 

As the court in Lane v. Newport Bldg. Corp. (1986) 176 Cal.App.3d 870, 874-875 

(Lane) noted, a plaintiff in Misuraca‟s position has a number of avenues by which he 

might preserve his rights: “(1) apprising the trial court at the mandatory settlement 

conference of the problem presented by [the] bankruptcy stay; (2) moving the court or 

proposing a stipulation to stay the entire action, pending the outcome of the bankruptcy 

proceeding; (3) proposing a stipulation to extend the time within which the action must 

be brought to trial [citation]; (4) moving the court to specially set the entire action for 

trial prior to the expiration of the five-year period pursuant to rule 375(b) of the 

California Rules of Court [citation]; (5) moving the court to sever the causes pertaining to 

[the defendant in bankruptcy proceedings] [citation] and proceeding

to trial on the remaining causes against respondents; or (6) seeking relief from the stay as 

to [the defendant in bankruptcy proceedings] in bankruptcy court. [Citation.]” Misuraca 

did none of these things and was not prevented from doing so by the alleged 

misrepresentations of the Lyons. Accordingly, we reject Misuraca‟s argument that the 

Lyons should be estopped from seeking to enforce the five-year period for bringing the 

suit to trial.

III. The Five-Year Period for Bringing Misuraca’s Suit to Trial

Because Nacio was involved in bankruptcy proceedings and a notice of stay was 

filed with the court, the five-year period for bringing to trial Misuraca‟s suit against 

Nacio was tolled. However, “the general rule is that bankruptcy stays only toll the fiveyear period as to the bankrupt.” (Santa Monica Hospital Medical Center v. Superior 

Court (1988) 203 Cal.App.3d 1026, 1036.) Thus, unless some other factor operated to 

make it impossible, impracticable, or futile for Misuraca to prosecute his suit against the 

Lyons, that suit exceeded the five-year statutory period and there was no abuse of 

discretion by the trial court when it dismissed the suit.

Nevertheless, Misuraca argues: “The California Supreme Court has for many 

decades disapproved severing claims against two or more defendants to bring a case to 
6

trial against one within five years. There is one five-year statute for each case, not one 

for each defendant.” In support of this argument, Misuraca cites Brunzell Constr. Co. v. 

Wagner (1970) 2 Cal.3d 545, 553-554 (Brunzell): “In many situations in which it is 

impossible or impracticable to proceed against one codefendant it may be impracticable, 

in terms of the burden both to the parties and to judicial administration as a whole, to 

proceed against other defendants in a separate suit. To require a plaintiff to sever causes 

of action against multiple defendants whenever it becomes impossible or impracticable to 

proceed against one defendant within the five-year period would be to require 

unproductive duplication of effort, compel the incurrence of excessive expense, and 

generally undermine all the policies served by modern theories of consolidation in a 

substantial number of cases.” 3

“The lesson that we learn from Brunzell . . . as applicable here, is that whether it is 

impracticable to bring a case to trial against a particular defendant depends on the 

circumstances of the particular case and „practical realities‟ . . . .” (Dowling v. Farmers 

Ins. Exchange (2012) 208 Cal.App.4th 685, 699.) Brunzell did not involve a stay for 

bankruptcy proceedings, which do not present a compelling case for consideration of the 

concerns expressed by the Brunzell court. As one court expressed it: “Appellants‟ 

further argument that it would be impractical or futile to proceed to trial without [the 

defendant in bankruptcy proceedings] ignores the fact that the bankruptcy might 

effectively result in the discharge of any claims appellants might have against [that 

defendant]. [Citation.] Thus, appellants fail to demonstrate that they would ever be in a 

position to prove their alleged causes of action against [that defendant] after termination 

of the bankruptcy proceeding.” (Lane, supra, 176 Cal.App.3d at p. 875.)

In Lane, the plaintiffs filed a complaint against multiple defendants. (Lane, supra, 

176 Cal.App.3d at p. 872.) The defendants answered and filed a cross-complaint against 

a third-party, who was subsequently substituted as a named defendant for “DOE II” in the 

complaint. (Ibid.) The third-party defendant then filed for bankruptcy and the 

 

3

 Misuraca misattributes the quoted passage to Christin v. Superior Court (1937) 

9 Cal.2d 526 and omits the first, limiting sentence.
7

bankruptcy court issued an automatic stay order. (Ibid.) More than five years after the 

suit was originally filed, the original defendants filed a motion to dismiss the action, 

which the trial court granted, because the suit had not yet come to trial. (Id. at p. 873.) 

The plaintiffs appealed, claiming that it was impractical and futile for them to bring the 

action to trial within five years because one of the defendants, a necessary party, was in 

bankruptcy. (Ibid.) As noted above, the Lane court rejected the plaintiffs‟ argument and 

found no abuse of discretion on the part of the trial court. (Id. at p. 875.)

Here, Misuraca is positioned similarly to the plaintiffs in Lane. Unlike the 

plaintiffs in Lane, he does not argue that it was impossible, impractical or futile for him 

to proceed separately against the Lyons. Rather, he attempts to convince us that “[t]here 

is one five-year statute for each case, not one for each defendant.” While this may be 

true as an abstract notion, the clear import of cases like Lane is that the five-year period 

may be tolled for some defendants but not for others.

Misuraca has not demonstrated that the trial court wrongly applied the law when it 

dismissed his case against the Lyons, nor has he shown that any of the factors that would 

toll the five-year period against the Lyons applied. The only feature of this case that 

would distinguish it from a case such as Lane is Misuraca‟s argument for estoppel, an 

argument we rejected above. Accordingly, we discern no abuse of discretion on the part 

of the trial court and affirm its order dismissing Misuraca‟s action against the Lyons.

IV. The Award of Attorney’s Fees to Lyons

Misuraca‟s argument that we reverse the award of attorney‟s fees to the Lyons is 

dependent on our first concluding that the dismissal of his suit against the Lyons be 

reversed. Because we affirm the dismissal, we also affirm the award of attorney‟s fees.

DISPOSITION

The trial court‟s orders dismissing Misuraca‟s suit against the Lyons and granting 

the Lyons attorney‟s fees are affirmed.
8

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.