Filed 9/21/21 Luna v. Penta Internat. Corp. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PHILLIP LUNA, B301660
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC544985)
v.
PENTA INTERNATIONAL
CORPORATION,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Elizabeth Allen White, Judge. Affirmed.
Torhoerman, Kenneth J. Brennan, Jacob W. Plattenberger,
and Steven D. Davis for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, Matthew G. Kleiner,
Jason F. Meyer, and J. Todd Konold for Defendant and
Respondent.
__________________________
1
Phillip Luna appeals from a judgment dismissing his action
against Penta International Corporation based on Luna’s failure
to bring the case to trial within the five-year period under Code of
Civil Procedure1 section 583.310. The trial court found the
statutory exceptions to dismissal under sections 583.140 and
583.360 did not apply. On appeal, Luna contends the trial court
erred in granting Penta’s motion to dismiss the action because
there was a written stipulation and oral agreement in open court
to continue the trial date. He also argues Penta was estopped
from seeking dismissal and waived its right to dismissal under
section 583.130. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Luna Files This Action and the Trial Court Grants Two
Trial Continuances Within the Five-year Statutory Period
On May 8, 2014 Luna filed this products liability action
against his former employer (The Kerry Group, Inc., and Kerry
Group PLC doing business as Kerry Ingredients), and others.
Luna later named 21 additional defendants, including Penta and
Centrome, Inc.2 The trial court set an initial trial date of
January 7, 2019. In November 2018 the parties signed a written
stipulation to continue the trial, and Penta filed an ex parte
motion to continue based on the stipulation. The trial court
1 All further statutory references are to the Code of Civil
Procedure.
2 The cases against all defendants except Penta and
Centrome were settled, dismissed, or resolved by summary
judgment. Centrome settled after judgment was entered in its
favor. Penta is the only appellant.
2
granted the motion and continued the trial to February 25, 2019.
On January 24, 2019 Penta filed an ex parte application to
continue the trial a second time, which the trial court granted.
The trial court set the trial date for May 6, 2019.
B. Luna’s Ex Parte Application To Continue Trial for a Third
Time
On April 15, 2019 Luna filed a document titled “Plaintiff’s
Ex Parte Application to Continue the Current Trial and Trial
Related Dates.” The ex parte application stated, “The parties
have jointly agreed to the trial continuance,” citing to the
declaration of Luna’s counsel, Jacob Plattenberger. The
memorandum in support of the ex parte application similarly
stated, “[T]he parties have all agreed to this short trial
continuance to complete expert discovery.” Plattenberger stated
in his supporting declaration, “Trial counsel for Defendant
Centrome is unavailable from June 23, 3019 through July 15,
2019. All parties have agreed to continue the trial to a date after
Centrome’s counsel becomes available.”
Counsel for Luna and for defendants appeared at a
telephonic hearing held on April 18, 2019 on Luna’s ex parte
application. There was no court reporter present. The trial court
granted Luna’s ex parte application, explaining in its minute
order, “Pursuant to the request of plaintiff, the [j]ury
[t]rial . . . scheduled for 5/06/2019 is continued to 9/10/2019 at
9:30 [a.m.] . . . .” On the same date the court entered an order
continuing the trial date.
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C. Penta’s Motion To Dismiss for Luna’s Failure To Bring the
Action to Trial Within Five Years
On May 9, 2019 Penta filed a motion to dismiss under
section 583.310 for failure to bring the action to trial within the
statutory five-year period. It is undisputed the five-year deadline
to bring the action to trial under section 583.310 ran on May 8,
2019, five years after Luna filed his original complaint.
In opposition to the motion, Plattenberger stated in his
declaration that on April 11, 2019 Penta’s counsel, Christine
Gracco, called him and stated “Penta and Centrome wanted a
trial continuance” and “Penta and Centrome would be filing
papers moving ex parte to move the trial date.” According to
Plattenberger, during a second call later that day, Gracco said
“her client would not allow her to file another motion to continue
the trial because she had done so twice already”; “Penta and
Centrome wanted a trial continuance”; Gracco “already wrote the
papers and [Plattenberger] could just use what she had written”;
and Gracco “[a]sked [Plattenberger] if [he] would file the papers.”
Plattenberger attached an email he received from Gracco later
that day stating, “As we discussed, here is the draft of the papers
we were in the process of preparing for a trial continuance.”
According to Plattenberger, the email included a Word file titled,
“LUNA Ex Parte Application to Continue May 2019 trial.” The
Word file contained a document titled, “Defendant Penta
International Corporation’s ex parte application to continue the
current trial and trial related dates; declaration of Christine J.
Gracco.” (Capitalization omitted.) Plattenberger stated,
“[B]elieving that I was doing a courtesy for another lawyer, I filed
an ex parte application to continue the trial using the papers
Gracco sent to me.” Further, Plattenberger stated as to the April
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18, 2019 hearing that “[a]t no time before or during the hearing
did counsel for Penta or Centrome object to, contest, or take issue
in any way with the statement in the ex parte application that
‘[t]he parties have jointly agreed to the trial continuance.’”
In Gracco’s declaration in support of Penta’s reply, she
refuted the statements made by Plattenberger. As to the April
11, 2019 phone call, Gracco asserted she “informed Mr.
Plattenberger that [she] had spoken to Centrome’s counsel about
the possibility of a trial continuance and was advised that
Centrome would not stipulate to a trial continuance but would
not oppose an ex parte request from another party.” Gracco
averred she did not state that Penta and Centrome would be
filing an ex parte application to move the trial date; rather, “[she]
advised Mr. Plattenberger that [she] would begin preparing ex
parte papers in the event that it was determined that a
continuance was necessary.” During the second April 11 call,
Gracco “told Mr. Plattenberger [she] was not authorized to
proceed with the ex parte application” and “informed him that
Penta was ready to proceed to trial on May 6, 2019 . . . [and] that
Penta would not go forward with the submitting [of] an ex parte
application and [she] further advised that Penta would not
oppose an ex parte application requesting a trial continuance.”
According to Gracco, “[p]roviding the draft papers was a courtesy
and was never intended to be a ‘stipulation’ or representation
that ‘all parties’ (or Penta for that matter) were agreeable to a
trial date beyond the five-year rule.” Gracco also denied asking
Luna’s counsel to file the draft ex parte papers on Penta’s behalf.
Finally, Gracco stated, “On behalf of Penta, [she has] never
agreed (in a written stipulation or otherwise) to either extend or
waive the time in which this action must be brought to trial
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pursuant to Code of Civil Procedure section 583.310 nor [has she]
ever agreed to a date certain to have this matter brought to trial
outside the five-year deadline.” Penta also filed evidentiary
objections to two paragraphs of the Plattenberger declaration.
D. The Trial Court’s Ruling
At the hearing on July 11, 2019, the trial court tentatively
denied Penta’s motion to dismiss, asked the parties for
supplemental briefs, and set a second hearing on the motion for
July 26, 2019. After a hearing on July 26, the court granted
Penta’s motion. As part of its ruling, the court sustained Penta’s
evidentiary objections to Plattenberger’s declaration.3 The trial
court sustained Penta’s objection to the statement in
Plattenberger’s declaration that “[a]t no time before or during the
hearing [on April 18, 2019] did counsel for Penta or Centrome
object to, contest, or take issue in any way with the statement in
the ex parte application that ‘[t]he parties have jointly agreed to
the trial continuance.’” The court also sustained Penta’s
objection to the statement by Plattenberger that he was unaware
prior to receipt of Penta’s motion to dismiss that “[d]efendants
did in fact oppose continuing the trial to July 22, 2019.”
The court found at the hearing, “[T]here was no stated
waiver of the five-year statute. . . . There’s nothing recorded in
the minute order; there was no court reporter present. [The court
has] no record of a waiver of the five-year statute. And estoppel
is not a persuasive argument in this instance. [¶] . . . [¶]
3 The trial court sustained Penta’s evidentiary objections
because Plattenberger was not present at the April 18, 2019
hearing. On appeal, Luna does not challenge the trial court’s
evidentiary rulings.
6
There’s just no estoppel here, because I don’t have a record here
of anything other than silence.”
On August 12, 2019 the trial court entered judgment in
favor of Penta.4 Luna timely appealed.
DISCUSSION
A. Governing Law and Standard of Review
Under section 583.310, “An action shall be brought to trial
within five years after the action is commenced against the
defendant.” If a case is not brought to trial within the statutory
period, dismissal is “mandatory” upon a motion of the defendant
or on the court’s own motion. (§ 583.360, subds. (a) & (b).)
Section 583.330 provides the parties may extend the statutory
period “(a) [b]y written stipulation . . . [or] [¶] (b) [b]y oral
agreement made in open court, if entered in the minutes of the
court or a transcript is made.” The stipulation or agreement
must either extend the time for bringing the action to trial to a
date beyond the statutory period or expressly waive the
defendant’s right to dismissal under section 583.310. (General
Insurance v. Superior Court (1975) 15 Cal.3d 449, 455; Munoz v.
City of Tracy (2015) 238 Cal.App.4th 354, 361-362.) The
principles of waiver and estoppel also apply to prevent a
dismissal under section 583.360. (§ 583.140.)
We review for an abuse of discretion the trial court’s
decision whether an exception applies to mandatory dismissal for
failure to bring an action to trial within five years. (Gaines v.
4 The trial court also entered judgment for Centrome based
on its motion to dismiss based on the five-year rule.
7
Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100
(Gaines) [trial court did not abuse its discretion in refusing to
exclude 120-day period of partial stay of action from five-year
period under section 583.340, subdivision (c), because bringing
case to trial within five-year period was not impossible,
impracticable, or futile]; see Nunn v. JPMorgan Chase Bank,
N.A. (2021) 64 Cal.App.5th 346, 351, 354 [trial court abused its
discretion in dismissing action for failure to bring case to trial
within three-year period of section 583.320 where parties orally
agreed to extend deadline].) Under this standard, “‘[t]he trial
court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the
law to the facts is reversible only if arbitrary and capricious.’”
(Gaines, at p. 1100; accord, Nunn, at p. 354.)
B. None of the Exceptions Applies To Extend the Five-year
Period
1. Substantial evidence supports the trial court’s finding
there was no written stipulation
As discussed, under section 583.330, subdivision (a), the
parties may extend the five-year period during which an action
must be brought to trial by a written stipulation. However, as
the Supreme Court has cautioned, “[N]o case decided by this
court has held that anything short of a written stipulation
extending in express terms the time of trial to a date beyond the
five-year period, or expressly waiving the right to a dismissal
under that section, will suffice to toll the running of the statutory
time. [¶] . . . [¶] The provision that a written stipulation be
entered into was intended to preclude all disputes . . . by a
requirement that clear and uncontrovertible evidence be
8
presented to the court that the statutory time was deliberately
intended to be extended by both parties.” (Miller & Lux Inc. v.
Superior Court (1923) 192 Cal. 333, 338, 340; accord, Munoz v.
City of Tracy, supra, 238 Cal.App.4th at p. 361.)
For purposes of section 583.330, subdivision (a), separate
writings by both sides may constitute a written stipulation if the
writings clearly indicate agreement to an extension of the trial
date past the five-year period or waiver of the right to dismissal.
(See Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal.2d
590, 599-600 [separate affidavits of parties’ attorneys reflecting
oral agreement to continue trial constituted written stipulation
sufficient to avoid dismissal]; Charles L. Donohoe Co. v. Superior
Court (1927) 202 Cal. 15, 17 [letters between attorneys were
sufficient to constitute a written stipulation extending the
statutory time even though there was no separate document
called a stipulation].) In determining whether a stipulation
extends the five-year period or waives the right to dismissal, the
rules of contract interpretation apply, and “‘the court may look to
the circumstances surrounding the making of the
agreement . . . .’” (Miles v. Speidel (1989) 211 Cal.App.3d 879,
883; accord, Smith, at p. 601.)
The trial court’s finding there was no written stipulation
is supported by substantial evidence. On appeal, Luna fails to
provide “clear and uncontrovertible evidence” of a writing
between the parties that extends the statutory period. (Miller &
Lux Inc. v. Superior Court, supra, 192 Cal. at p. 340.) Luna
contends its ex parte application for a continuance constituted a
written stipulation because Penta did not object during the April
18, 2019 hearing to the statement in Luna’s ex parte application
for a continuance that “[t]he parties have jointly agreed.” But
9
even if there was evidence of Penta’s failure to object at the
hearing (which there is not), section 583.330, subdivision (a),
requires a writing from Penta clearly indicating its intent to
extend the statutory period. No such writing exists. Luna points
to the email Gracco sent Plattenberger containing the draft ex
parte application and Plattenberger’s declaration in which he
stated his belief he was doing Gracco a favor by filing an ex parte
application using the draft Gracco sent him. However, Gracco’s
email to Plattenberger only stated she was sending a draft of an
ex parte application she was working on; it lacks a clear
statement that she agreed to a continuance. Further, Gracco
stated in her declaration the draft ex parte application was not
intended to be a stipulation because Penta’s counsel had no
authority to seek a continuance.
2. Substantial evidence supports the trial court’s finding
there was no oral agreement in open court
As discussed, under section 583.330, subdivision (b), the
five-year statutory period may be extended “[b]y oral agreement
made in open court, if entered in the minutes of the court or a
transcript is made.” Here, the April 18, 2019 minute order does
not reflect an oral agreement of counsel.5 Rather, it indicates
only that “pursuant to the request of the plaintiff” the court
granted Luna’s ex parte application to continue the trial.
Further, there is no transcript of the hearing because no court
reporter was present. Substantial evidence therefore supports
5 We do not reach Luna’s argument on appeal that Penta’s
attorney’s silence at the hearing constituted an oral agreement
because there is no record of whether there was silence or assent
by Penta’s attorney at the hearing.
10
the trial court’s finding there was no oral agreement in open
court as required by section 583.330, subdivision (b), to extend
the five-year period.
3. Substantial evidence supports the trial court’s finding
estoppel does not apply
A defendant may be estopped from seeking a mandatory
dismissal for failure to bring the case to trial within the five-year
period. (Gaines, supra, 62 Cal.4th at pp. 1097-1098; Jordan v.
Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1422.)
“Equitable estoppel requires that: (1) the party to be estopped
was aware of the operative facts and either intended that its act
or omission be acted upon, or acted in such a way that the party
asserting estoppel rightfully believed it was intended; and (2) the
party asserting estoppel was unaware of the facts and relied on
the other party’s conduct to its detriment.” (Gaines, at p. 1097;
accord, Jordan, at pp. 1422-1423.) “The party asserting estoppel
has the burden to establish these elements.” (Gaines, at p. 1097;
accord, Busching v. Superior Court (1974) 12 Cal.3d 44, 53.)
Luna contends, relying on the statements in
Plattenberger’s declaration describing his April 11, 2019
telephone conversation with Gracco, that Gracco asked
Plattenberger to file the ex parte application on Penta’s behalf.
Although it is undisputed Gracco provided Plattenberger a draft
of an ex parte application, Gracco stated in her declaration she
never asked Plattenberger to file the ex parte application on
Penta’s behalf, and instead only sent the draft as a courtesy. The
declarations of Gracco and Plattenberger are therefore in conflict,
but substantial evidence supports the trial court’s implied finding
that Gracco did not request the continuance or that Plattenberger
11
file the ex parte application on Penta’s behalf, especially given
the lack of any indication in Gracco’s email attaching the draft ex
parte application that she wanted Plattenberger to file the
document. Rather, Gracco simply stated, “As we discussed, here
is the draft of the papers we were in the process of preparing for a
trial continuance.” Further, Gracco’s account of what happened
was more reasonable—that Penta did not object to Luna seeking
a continuance, and Gracco provided a draft ex parte application
as a courtesy to Plattenberger, not that Gracco requested
Plattenberger file the ex parte application on behalf of Penta
against her client’s wishes.
Luna also argues that prior to receipt of Penta’s motion to
dismiss, Plattenberger was unaware that Penta opposed a trial
continuance. But the trial court sustained Penta’s evidentiary
objection to this statement in Plattenberger’s declaration.
Further, Gracco stated in her declaration that she told
Plattenberger “that both Penta and Centrome would not object to
an ex parte trial continuance request but they would not execute
a written stipulation to continue the trial date as they were both
prepared to proceed to trial on the May 6, 2019 date.”
4. Substantial evidence supports the trial court’s finding
there was no waiver
“‘“[W]aiver” means the intentional relinquishment or
abandonment of a known right.’ [Citations.] Waiver requires an
existing right, the waiving party’s knowledge of that right, and
the party’s ‘actual intention to relinquish the right.’ [Citation.]
‘“Waiver always rests upon intent.”’ [Citation.] The intention
may be express, based on the waiving party’s words, or implied,
based on conduct that is ‘“so inconsistent with an intent to
12
enforce the right as to induce a reasonable belief that such right
has been relinquished.”’” (Lynch v. California Coastal Com.
(2017) 3 Cal.5th 470, 475; accord, Waller v. Truck Ins. Exchange,
Inc. (1995) 11 Cal.4th 1, 31-32.) “‘The burden . . . is on the party
claiming a waiver of right to prove it by clear and convincing
evidence that does not leave the matter to speculation, and
“doubtful cases will be decided against the existence of a waiver”
[citation].’” (Waller, at p. 31; accord, Antonopoulos v. Mid-
Century Ins. Co. (2021) 63 Cal.App.5th 580, 600.)
Substantial evidence supports the trial court’s finding there
was “no record of a waiver of the five-year statute.” Luna
contends Penta waived its right to dismissal based on its
attorney’s silence during the hearing on the ex parte application.
But the trial court sustained Penta’s evidentiary objections to
Plattenberger’s account of what happened at the hearing. Thus,
the only record of the hearing is the account from Penta’s counsel,
J. Todd Konold, who stated that during the April 18, 2019
telephonic hearing, he “did not indicate—explicitly or impliedly—
that Penta would waive the five-year rule.” And as discussed,
Gracco stated in her declaration she told Plattenberger that
Penta would not stipulate to a continuance. On this record,
Penta did not waive its right to seek dismissal of the action based
on Luna’s failure to bring the case to trial within the five-year
period.
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DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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