Filed 2/27/13 Shtofman v. Mercedes-Benz CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ROBERT SCOT T SHTOFMAN,
Plaintiff and Appellant,

v.

MERCEDES-BENZ OF NORTH AMERICA, INC. et al.,
Defendants and Respondents. B238274
(Los Angeles County Super. Ct. No. BC320356)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Ramona G. See, Judge. Reversed.

Robert Scott Shtofman, in pro. per., for Plaintiff and Appellant.

Veatch Carlson, Cyril Czajkowsky j and David Ryan for Defendants and Respondents.

___________________ ___________________2 We reverse a judgment of dismissal under Code of Civil Procedure section 583.310 for failure to bring the ac tion to trial within five years. 1
FACTS In January 1997, Robert Shtofman, a lawyer, purch ased a new Mercedes-Benz S420 from Calstar Motors, Inc. (a Mercedes-Benz dealersh ip) for roughly $78,000. In August 2004, after Shtofm an had driven his S420 for mo re than 132,000 miles, he sued Mercedes-Benz USA, LLC, Calstar, and Decio Atkinson, a worker in Calstar’s service department. Shtofman’s complain t alleged five causes of action, listed respectively: breach of contract (against Cals tar) for failing to repair problems with his vehicle as promised; breach of warranty (against Calstar and Mercedes-Benz); fraud (against all defendants) based upon alleged misrepresentations about the nature of the problems with the vehicle; negligent repair (against all defendants); and negligent hiring and training of service employees (against Calstar). Shtofman’s complaint prayed for compensatory damages, em otional distress damages, and punitive damages. In late 2005, Mercedes-Benz, Calstar and Atkinson filed thre e separate motions for summary judgment or, in th e alternative, summary adjudi cation of issues (MSAI) of
each of Shtofman’s causes of action. At th e same time, Shtofman filed a MSAI on his cause of action for breach of warranty agains t Calstar and Mercedes-Benz. The parties argued the motions to the trial court and th e court took the matters under submission. In March 2006, the trial court signed and en tered a formal order granting Shtofman’s
MSAI of his cause of action for breach of warranty against Calstar and Mercedes-Benz, and denying the motions filed by Mercedes-Benz, Calstar and Atkinson.
After the trial court entered the MSAI order on Shtofman’s breach of warranty cause against Calstar and Mercedes-Benz, Sh tofman agreed to dismiss his remaining causes of action, and requested judgment be entered in his favor based on the MSAI
order. Shtofman also filed a motion for attorney fees, whic h the trial court granted. In October 2006, the court signed and en tered a final judgment which provided that

1 All further section references are to the Code of Civil Procedure.3 Shtofman was to recover $87,246.63 in compen satory damages, plus attorney fees in the amount of $136,800, with the total award pa yable by Mercedes-Benz and Calstar, jointly and severally. 2 The judgment ordered Shtofman to return his S420 to Calstar, and to execute all documents necessary to transfer title and ownership of the vehicle to
Mercedes-Benz. On a prior appeal, we reversed the judgment. (See Shtofman v. Mercedes-Benz of North America, Inc . (Aug. 29, 2008, B195 677) [nonpub. opn.].) We remanded the case
to the trial court with direc tions to enter a new and diffe rent order denying Shtofman’s
MSAI of his breach of warrant y cause of action against Cals tar and Mercedes-Benz, and to enter a different order granting Mercedes -Benz’s MSAI of the same, and Calstar’s MSAI of the same. Further, because Shtofman had dismi ssed his remaining causes of action in reliance on the MSAI orders vacated, we also directed the trial court to relieve
Shtofman from his dismissal of those causes of action. The clerk of our court issued the remittitur on November 24, 2008; the clerk of the superior court filed the remittitur on November 26, 2008. On August 25, 2009 , the trial court granted a moti on for summary judgment filed by Mercedes-Benz. At a status conference in February 2011, the co urt set the cause for trial on September 19, 2011. The parties at th e status conference were Shtofman, Calstar
and Atkinson. On August 25, 2011, Calstar and Atkins on filed a document entitled “motion in limine” in which they argued that Shtofman’s action was subject to mandatory dismissal pursuant to section 583.310 for failure to bring it to trial within five years. At a hearing on September 21, 2011, the tria l court ruled that it was gr anting Calstar and Atkinson’s motion to dismiss. On November 2, 2011, th e trial court entered a judgment of dismissal
in favor of Calstar and Atki nson, and, on November 21, 2011, Calstar and Atkinson served notice of entry of the judgment of dismissal.

2 The judgment was silent concerning the basis for liability as against Calstar and Mercedes-Benz; the judgment wa s silent as to Atkinson.4 On January 3, 2012, Shtofman filed a notice of appeal from the judgment of
dismissal as to Calstar and Atkinson. DISCUSSION
I. The Motion in Limine Shtofman contends the judgment of dism issal must be reversed because a “motion in limine” is an improper procedural avenue for presenting a motion to dismiss an action for failure to bring it to trial within the tim e prescribed by statute. We disagree. It is the substance of a motion, not its la bel, that determines whether the relief it requests is available and proper. For this reas on, a trial court is free to treat a motion for what it is substantively, regardless of its label. (See Sole Energy Co. v. Petrominerals Corp . (2005) 128 Cal.App.4th 187, 193.) Here, the motion filed by Calstar and Atkinson expressly sought dismissal of Shtofman’s acti on under the five-year trial statute. That Calstar and Atkinson typed the words “motion in limine” on their papers does not mean the trial court was barred from granting the re lief requested, or that the court’s decision was error simply because of the “motion in limine” label. The motion filed by Calstar and Atkinson put Shtofman on notic e of the dismissal issue he needed to address, and he has not argued any due process issue. Shtofman’s reliance on cases that have criticized
the misuse of motions in lim ine to obtain certain types of relief is not persuasive. (See, e.g., R & B Auto Center, Inc. v. Farmer’s Group, Inc . (2006) 140 Cal.App.4th 327, 372 (conc. opn. of Rylaarsdam, J.) [a mo tion in limine was, “in effect, a motion for summary adjudication of issues”].) Calsta r and Atkinson’s mo tion expressly sought
dismissal of Shtofman’s action under secti on 583.310 based upon a showing that he failed to bring the action to trial within the five-year period prescribed by the statute.
The motion did not seek relief hidden unde r the guise of a motion in limine. II. The Judgment of Dismissal
Shtofman contends the trial court errone ously computed the tim e within which he was required to bring his case to trial, and thus erred by dismissing his action. Although we do not wholly agree with hi s analysis, we agree that the dismissal must be reversed.5 The Mandatory Dismissal Statutes Code of Civil Procedure, part 2, title 8, chapter 1.5 (§ 583.110 et seq.) governs the dismissal of an action for delay in prosecutio n. Article 3 of chapter 1.5 –– encompassing section 583.310 et seq. –– governs the “Mandato ry Time for Bringing an Action to Trial
or New Trial.” Under section 583. 360, subdivision (a): “An action shall be dismissed by
the court on its own motion or on motion of th e defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in th is article.” (Italics added.) Under section 583.360, subdivisi on (b): “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by
statute.” A. Five-Year Dismissal From the Commencement of an Action Section 583.310 provides: “An action sha ll be brought to tria l within five years after the action is commenced against the defendant.” Section 583.340 prescribes how to meas ure the five-year period within which a plaintiff must bring an action to trial as pr escribed in section 583 .310. Section 583.340 reads: “In computing the time within which an action must be brought to trial pursuant to this article, there shall be ex cluded the time during which any of the following conditions existed: [¶] (a) The jurisd iction of the court to try the action was suspended [such as by an appeal]. [¶] (b) Prosecution or trial of the action wa s stayed or enjoin ed. [¶] (c) Bringing the action to trial, for any othe r reason, was impossible, impracticable, or
futile.” Shtofman commenced his action against Calstar and Atkinson in August 2004. So, if section 583.310 is applied on its own, this means that Shtofm an had to bring his action against CalStar and Atkinson to trial by August 2009. But section 583.310 cannot be applied on its own to Shtofman’s action be cause an intervening event beyond the mere passage of time –– i.e., the prior appeal –– is involved. Sh tofman’s action was on appeal from December 8, 2006 (the date of his notice of appeal) to November 26, 2008 (the date the clerk of the trial court filed our remittitur) , a period of two years (rounded). Applying6 the computation method prescribed by section 583.340, subdivision (a), to determine the five-year period under section 583.310, means that Shtofman had to bring his action to trial by August 2011. 3
The trial court dismissed Shtofman’s ac tion as against Calsta r and Atkinson in September 2011.
B. Three Year Dismissal Fr om an Order for New Trial Section 583.320 prescribes the mandatory time for a “new trial.” Section 583.320, subdivision (a)(3), 4 provides: “(a) If a new trial is gr anted in the action[,] the action shall again be brought to trial with the following times: . . . [¶] (3) If on appeal . . . a judgment
is reversed and the action remanded for a new trial, within three y ears after the remittitur is filed by the clerk of the trial court.” 5 So, if section 583.320 applie s, then Shtofman ha d to bring his action to trial by late November 2011, the remittitur is sued in the prior appeal havi ng been filed by the clerk of
the trial court in late November 2008.

3 Shtofman’s opening brief on appeal ar gues he was very busy professionally, and that the five-year deadline date for trial was extended for that reason. He cites no legal authority supporting the proposition that a pa rty’s busy work schedule, even where the party is a lawyer, excuses comp liance with the statutes governing the time for bringing an action to trial. It is appropria te, of course, for a trial court, or a party or a lawyer to agree to continue a trial date – within the five-year period for bringing an action to trial – as a matter of professional or common courtesy, but the five-year deadline date itself is “not subject to extension, excuse, or exception ex cept as expressly provided by statute.” (See § 583.360, subd. (b).)

4 Section 583.320, subdivisions (a)(1) and (a)(2), prescribe the mandatory time for bringing an action to trial after a mistrial or order granting a motion for new trial. These rules are not implicated in Shtofman’s current case.

5 Section 583.320, subdivision (b), provides: “Nothing in this section requires that an action again be brought to trial before e xpiration of the [five-year] time prescribed in Section 583.310.” So, section 583.320 may not be applied to shorten the five-year time prescribed in section 583.310 for bringing an ac tion to trial. The issue in the current case, paraphrased, is whether section 583.320 ma y be applied to trump and, in effect, lengthen the five-year time for trial under 583.310.7 The trial court dismissed Shtofman’s ac tion as against Calsta r and Atkinson in September 2011. Analysis –– Whether Section 583.310 or 583.320 Governs
The trial court dismissed Shtofman’s acti on pursuant to the five-year time for trial prescribed by section 583.310. The court computed th e five-year time starting from the filing of Shoftman’s action, and excludi ng the time during which the action was on appeal pursuant to section 58 3.340. If the trial court properly applied the five-year time for trial under section 583.310, as measured under section 583.340, then the dismissal was proper because the five-y ear deadline date expired in August 2011, and the court did
not dismiss Shtofman’s ac tion until September 2011.
Shtofman contends the trial court shou ld have determined the dismissal issue under the time rules for a “new trial” pursu ant to section 583.320, measured from the filing of the remittitur issued in the prior appeal in the trial court, with a three-year period
for a “new trial.” Shtofman e ssentially argues that if an app eal is started on the fifth-year anniversary of the filing of an action, minus on e day, then a plaintiff is given a full threeyear period after the filing of th e remittitur issued in the appeal in the trial court to bring
his or her case to a new trial. Stated in ot her words, Shtofman ar gues the five-year time for bringing an action to trial should not necessarily be the fo cus when there is an appeal in an action. Instead, the th ree-year time for a new trial governs. Although we only partly agree with Shtofman’s proffered statut ory construction, we agree the judgment of
dismissal should be reversed. In Shtofman’s current action, Calstar and Mercedes-Benz filed an appeal in December 2006, challenging the judgment in fa vor of Shtofman after the order granting MSAI of his breach of warranty cause of action, and dismissal of his remaining causes of action, and, finally, entry of judgment in Oc tober 2006. The appeal suspended the trial court’s jurisdiction. On November 24, 2008, our court issued the remittitur, restoring the trial court’s jurisdiction. On November 26, 2 008, the clerk of the superior court filed the remittitur. The period during which the jurisdiction of the trial court to try the action was8 suspended under section 583.3 40, subdivision (a), therefore, approximately measured two years. If sections 583.310 an d 583.340 control, Shtofman should have brought his action to trial by August 2011. We conclude the appeal, remittitur and “n ew trial” trigger s hould be applied to Shtofman’s current action, meaning that he should have been granted three years from the date of the filing of the remittitur after the prio r appeal to start a new trial as prescribed in section 583.320, subdivision (a )(3). Accordingly, Shtofman should have been given until late November 2011 to start a new trial, which means his action sh ould not have been dismissed in September 2011. Section 583.320 applies when a “new trial” has been gran ted in an action, the plain implication being that section 583.320 does no t apply when there has been no first “trial”
in the action We find there was first trial in Shtofman’s action. By a unique, one might say convoluted path, Shtofman ended up with a $200,000 judgment in his favor, based on a substantive adjudication of the merits of at least one of the claims alleged in his complaint. If the judgment wa s not obtained by a “trial,” we are at a loss to explain how Shtofman prevailed. The published cases do not directly addr ess the procedural pa th in Shtofman’s current case, but teach that a hearing which addresses and adju dicates substantive legal or factual issues in an action is a “trial” for purpo ses of the “new trial” time rules set forth in section 583.320. (See, e.g., McDonough Power Equipmen t Co. v. Superior Court (1972) 8 Cal.3d 527, 530-534 ( McDonough ) [addressing section 583, the precursor to section 583.320].) In the cases, hear ings and rulings in favor of a defendant on a demurrer, or motion for judgment on the pleadings, or motion for summary judgment, when followed by a judgment of dismissal, have been determ ined to be a “trial” for purpose of the “new
trial” time rules in sect ion 583.320. (See, e.g., Berri v. Superior Court (1985) 43 Cal.2d 856, 859; Smith v. City of Los Angeles (1948) 84 Cal.App.2d 29 7, 301-302.) In those circumstances, when a judgment has been re versed on appeal, the plaintiff has been granted the three year period fo r a “new trial” under secti on 583.320. In Shtofman’s9 current case, the situation is different beca use a hearing and ruling on a MSAI was made in favor of a plaintiff on only part of his ca se. Ordinarily, that would not have been a
“trial” because the action would not have been finally conclu ded. In our view, however,
when Shtofman dismissed his other causes of action and accepted a favorable final judgment based on a single cause of action, his case became placed in a procedural posture of having been resolved by a “trial.” As the Supreme Court explained in McDonough in addressing the three-year time for a new trial after an appeal” “[S]ecti on 656, which is found within title 8 of part 2 of the [Code of Civil Pro cedure] (‘Of the Trial and Ju dgment in Civil Actions’), does not provide an exclusive definition of ‘trial’ or ‘new trial, nor does it establish an identity of meaning between the term ‘trial’ as used in section 656 and as used in [the] section [governing a new trial after an ap peal]. On the contrary, in defining ‘trial’ we have said
‘that it is the determination of an issue of law or fact’ [citation] or ‘the examination . . . of the facts or law put in issue in a cause . . . .’ [Citations.]” ( McDonough, supra , 8 Cal.3d at pp. 530-533.)
In McDonough , a trial court sustained a defendant’s demurrer in a personal injury action, and entered a judgment of dismi ssal. An appellate court reversed the ruling on the demurrer. The action was not brought to a trial within three years after the remittitur. The Supreme Court issued a writ of mandate to compel the trial court to dismiss the action for failure to bring it to tr ial within three years after the filing of the
remittitur as stated in former section 583, even though the five-year period for bringing
the action to trial under former section 583 ha d not yet expired. In short, the Supreme
Court ruled in McDonough that a ruling on a demurrer cons tituted a “trial,” and that the three-year trial period measured after the filing of the remittitur controlled over the fiveyear trial period measured after the filing of the action. Under McDonough , the time for mandatory dismissal is not nece ssarily a minimum of five years under section 583.310, as measured under 583.340. A result mirroring McDonough is no longer available because
the current version of section 583.320, subdivision (b), provides: “Nothing in this section10 requires that an action again be brought to tr ial before expiration of the [five-year] time prescribed in Section 583.310.” Nonetheless, McDonough ’s analysis of what constitutes a “trial” is still relevant –– it is a hearing and ruling that is determinative of an issue of law or fact put at issue in a cause. ( McDonough, supra , 8 Cal.3d at pp. 530-533.) In our view, that is what we have in Shtofman’s current case in 2006, precipitating Calstar and Mercedes-Benz’s prior appeal.
Calstar and Atkinson’s reliance on Lemaire, Faunce & Katznelson v. Cox (1985) 171 Cal.App.3d 297 ( Lemaire ) does not persuade us to fi nd there was no “trial” in 2006
in Shtofman’s current case. In Lemaire , a law firm filed a complaint against a client in September 1978 for unpaid legal fees, and the client immediately filed a cross-complaint for legal malpractice. In September 1984, the law firm filed a MS AI which was granted in part and denied in part. Eventually, th e law firm dismissed its complaint for unpaid fees. More than five years after the complaint and cross-co mplaint were filed, the law
firm moved to dismiss the rema ining cross-complaint for lega l malpractice for failure to bring it to trial within five years. The trial court granted the motion. Division Five of our court affirmed, rejecting the client’s argumen t that “trial” had commenced in September 1984, when the law firm’s MSAI was addresse d. In concluding that a “trial” had not been commenced in September 1984, Divisi on Five ruled that a “trial” meant a
determination of an issue of law or fact wh ich brings an action to a stage where a final disposition can be made. The MSAI involving the law firm did not satisfy such criteria because it had not brought the action to a stage where a final disposition could be accomplished. ( Id . at pp. 300-302.)
In contrast to Lemaire , the MSAI orders in 2006 he re, which precipitated the prior appeal, did place Shtofman’s case into a stage where a final disposition could be accomplished. To be more a ccurate, the MSAI orders allowed for a final disposition by a final judgment in favor of Shtofman once he agreed to dismiss his remaining causes of action, and take his favorable $200,000 judgme nt. In essence, it was not just the ruling on the MSAI issue but also the subsequent dism issal allowing for entr y of judgment that11 resulted in a “trial” in Shtofm an’s action in 2006. Regardle ss of the description given,
there was a “trial” in Shtofman’s action in 2006, and a judgment in his favor based upon that trial, and an appeal. Thus, when we reversed the judgment on the prior appeal, there
was a remand for a “new trial.” This brings us to the final issue in the appeal before us toda y –– is the five-year period for bringing an action to trial under section 583.310, computed under 583.340, the
maximum time afforded to bring an ac tion to trial. If it is, then Shtofman’s time for trial expired in August 2011. We find five year s is not necessarily the maximum time given a plaintiff to bring an action to trial. Under the plain language of s ection 583.320, and the published cases such as McDonough , we reject the contention th at upon reversal of the judgment and the remand of the action for fu rther proceedings, the time for trial of the action was limited to a maximum of the five-y ear period prescribed by section 583.310. We find the language of section 583.320 to be unambiguous, and to control. There was a prior “trial” in Shtofman’s case because the hearing on the MSAIs addressed legal and factual issues involved in his case. Upon dism issal of his remaining causes of action, the trial court entered a final judgment. Thus, af ter reversal on appeal and the filing of the remittitur, Shtofman had three years to bring his action to trial under section 583.320. Reading all of the dismissal statutes toge ther, and giving effect to all of them ( Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090), we see three principles at play. First, if there is no appeal in an action, the time for trial is governed by the five-year term prescribed by section 58 3.310, computed under section 583.340. Second, if there is an appeal in action, but not after a “trial,” then the time for trial is still governed by the fiveyear term prescribed by section 583.310, co mputed under section 58 3.340. Finally, if there is an appeal in action after a “trial,” th en section 583.320 applies, and the three-year period measured from the filing of the remittitur controls. 6

6 In Shtofman’s current case, the hear ing and ruling on Calstar and Atkinson’s motion to dismiss for delay in prosecution was not a “trial” because it did not result from a determination of any legal or factual issues involved in his clai ms. So, Shtofman does12 III. The Estoppel Issue
Because we have found s ection 583.320 applied, and Shtofman’s ac tion should not
have been dismissed under sec tion 583.310, we do not addre ss his argument that estoppel
should have barred Calstar a nd Atkinson from seeking dismissa l for delay in prosecution
of the action. DISPOSITION The order and judgment of dismissal ente red on November 2, 2011 is reversed. Each party to bear its own costs on appeal.

BIGELOW, P. J.

We concur:

RUBIN, J.

FLIER, J.

not get another three years afte r the filing of the remittitur in this appeal to get his action to trial.