Luna v. Penta Int'l Corp.

Decision Date21 September 2021
Docket NumberB301660
PartiesPHILLIP LUNA, Plaintiff and Appellant, v. PENTA INTERNATIONAL CORPORATION, Defendant and Respondent.
CourtCalifornia Court of Appeals

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC544985, 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.

FEUER J.

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 Procedure[1] 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 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.

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 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 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. [¶]... [¶] 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...

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