Fidelity National Home Warranty Company CasesAnnotate this Case
Plaintiffs Dan Kaplan, James Baker, Janice Fistolera, Fernando Palacios, and Hamid Aliabadi appealed two judgments dismissing two coordinated actions against defendant Fidelity National Home Warranty Company (Fidelity): Fistolera v. Fidelity National Home Warranty Company (Super. Ct. San Joaquin County, No. 39-2012-00286479-CU-BT-STK) (Fistolera Action) and Kaplan v. Fidelity National Home Warranty Company (Super. Ct. San Diego County, No. 37-2008-00087962-CU-BT-CTL) (Kaplan Action). The trial court dismissed the actions after determining the plaintiffs failed to timely prosecute each case. With respect to the Fistolera Action, a putative class action, the trial court concluded that the Fistolera Plaintiffs failed to bring the action to trial within the five-year mandatory period specified in Code of Civil Procedure section 583.310. As to the Kaplan Action, a certified class action, the trial court concluded that the Kaplan Plaintiffs failed to bring the action to trial within three years of the issuance of the remittitur in a prior appeal in that action (Kaplan v. Fidelity National Home Warranty (December 17, 2013, D062531, D062747) [nonpub. opn.] (Kaplan I)), as required by section 583.320. On appeal, plaintiffs claimed the trial court erred in dismissing each action. On the merits of the plaintiffs' claims, the Court of Appeal concluded that, in calculating the five- year and three-year mandatory dismissal periods, the trial court erred in failing to exclude 135 days immediately following the assignment of a coordination motion judge to rule on a petition to coordinate the Fistolera Action and the Kaplan Action. Furthermore, the Court determined this error required reversal of the dismissal of the Fistolera Action because, after excluding these 135 days, the five-year period had not expired as of the time the trial court dismissed that action, and the matter was set for trial within the five-year period. However, the Court concluded that this error did not require reversal of the trial court's dismissal of the Kaplan Action. To the Kaplan Action, the Court determined that because, even after excluding 135 days related to the coordination proceedings, the three-year period that the Kaplan Plaintiffs had to bring that action to trial had expired as of the time the trial court dismissed that case. Further, the Court held none of the Kaplan Plaintiffs' arguments for additional tolling of the three-year period had merit.