Cho v. Haul-Away Rubbish Service Co. CA2/3 ( 2024 )

Filed 2/23/24 Cho v. Haul-Away Rubbish Service Co. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
MIN SUN CHO, B326376
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC654003)
v.
HAUL-AWAY RUBBISH SERVICE
CO.,
Defendant and Respondent.
APPEAL from an order of dismissal of the Superior Court
of Los Angeles County, Mel Red Recana, Judge. Reversed with
directions.
Min Sun Cho, in pro. per., for Plaintiff and Appellant.
Horvitz & Levy, Karen M. Bray and Andrea L. Russi;
Armijo, Morovati & Shields and Christina Y. Morovati for
Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff Min Sun Cho (Cho) appeals from an order
dismissing this action pursuant to Code of Civil Procedure1
section 583.360 for failure to bring it to trial within five years.
We reverse. As we discuss, Cho filed his complaint on March 15,
2017, and thus the five-year statutory period (as extended by
six months pursuant to the state’s emergency Covid-19 rules)
ended on September 15, 2022. Cho was not able to bring the
matter to trial prior to that date because the trial court
repeatedly continued the trial on its own motion or at the request
of defendant Haul-Away Rubbish Service Co. (Haul-Away).
These continuances—none of which was requested by Cho—
collectively moved the trial date by 51 months, including
extensions of 24 months made over Cho’s express objections.
As such, it was “impossible” or “impracticable” for Cho to bring
the case to trial within five years (§ 583.340, subd. (c)), and the
trial court abused its discretion by dismissing the case for failure
to prosecute (§ 583.360).
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
Cho filed the present action against CKE Restaurants
Holdings, Inc. d/b/a Carl’s Jr. Restaurant (CKE) and Does 1 to 20
on March 15, 2017. The complaint alleged that in August 2015,
Cho lived in an apartment next to a Carl’s Jr. Restaurant
(restaurant). At CKE’s direction, trash was collected from the
restaurant every morning between 4:00 and 6:00 a.m., disrupting
1 All subsequent statutory references are to the Code of Civil
Procedure.
2
Cho’s sleep and causing his physical and psychological health to
deteriorate. Cho notified CKE of the problem, but it refused to
have the restaurant’s trash collected at a different time. Cho
alleged that these practices gave rise to causes of action for
nuisance and intentional and negligent infliction of emotional
distress. (Cho v. CKE Restaurants Holdings, Inc. (Apr. 27, 2022,
B310704) [nonpub. opn.].)
In January 2018, CKE filed an indemnity cross-complaint
against its trash collector, Haul-Away. On March 4, 2019, Cho
amended his complaint to substitute Haul-Away into the case as
a Doe defendant.
II. Haul-Away’s motions to continue the trial date.
The case originally was set for trial on September 17, 2018.
In May 2018, Haul-Away filed a motion to continue the trial
180 days to allow it time to conduct discovery. The motion was
not ruled on; instead, in June 2018, the court transferred the case
to a different department, and in August 2018, the new trial
judge set the case for trial on May 28, 2019.
On March 14, 2019, Haul-Away filed a second request to
continue trial for six months. Cho did not oppose the motion.
The court found good cause to grant the motion and continued
the trial more than 18 months—a full year more than Haul-Away
requested—to September 21, 2020.
In February 2020, CKE filed a motion for summary
judgment and reserved the first available hearing date,
November 12, 2020, which was two months after the then-current
trial date. CKE then filed an ex parte application, which Haul-
Away joined, to continue the trial five months, to January 2021.
Cho did not file opposition or appear at the hearing. The court
granted the motion but continued the trial date 11 months—six
3
months beyond what CKE and Haul-Away had requested—to
August 2021.
In November 2020, the court granted CKE’s motion for
summary judgment. Cho appealed from the resulting judgment.
In July 2021, Haul-Away filed a third request to continue
trial “to a date convenient to the court’s calendar after resolution
of the pending appeal.” Haul-Away urged that “[t]o proceed to
trial at this point would pose the risk that should Plaintiff’s
appeal be granted and [CKE] is brought back into this lawsuit,
Haul-Away will have to undergo two trials.” Thus, “[i]n the
interests of justice and judicial economy, it is prudent to await
the resolution of the appeal before proceeding to trial on this
matter.”
Cho opposed the application to continue the trial. He urged
that he was ready to proceed to trial against Haul-Away, and the
claims against Haul-Away and CKE could be separately tried
without prejudice to Haul-Away, which was separately liable to
Cho. Further, Cho said, he “do[es] not and will not stipulate
to a continuance.” (Original emphasis.) He therefore urged the
court to deny the application and order the case to trial.
On July 7, 2021, the court granted Haul-Away’s application
and continued the trial another nine months, to May 2022.
In January 2022, Cho filed a motion for summary judgment
against Haul-Away and reserved the first available hearing date
on the court’s calendar, May 4, 2023—16 months after the filing
of the summary judgment motion, and more than a year after the
scheduled trial date.2 Cho then filed an ex parte application to
2 Haul-Away’s counsel suggested at oral argument that there
was no evidence that Cho calendared his summary judgment
4
advance the summary judgment hearing to the first available
date prior to the May 9, 2022 trial date. In his supporting
declaration, Cho stated that five years had passed since he filed
his complaint.3
Haul-Away opposed Cho’s application. Haul-Away
conceded that Cho had filed his motion in sufficient time to allow
the motion to be heard 30 days before trial and to allow Haul-
Away 75 days to file an opposition.4 Nonetheless, Haul-Away
urged that advancing the hearing “would be prejudicial to [Haul-
Away] who has to oppose this motion by a pro per plaintiff and
[who] relied on the current scheduled date for the motion.” Haul-
motion on the first available hearing date. In fact, in his motion
to advance the summary judgment hearing date, Cho stated that
he was “moving on an ex parte basis because the earliest hearing
date available to have a Noticed Motion for Summary Judgment
to be heard is May 4, 2023.” Haul-Away did not submit any
evidence to the contrary—instead, in opposition to Cho’s motion,
Haul-Away asserted only that “[a]s of January 21, 2021, this
Court had dates available in February 2022 to hear a Noticed
Motion to Continue Trial or a Noticed Motion to Advance the Date
of Plaintiff’s Motion for Summary Judgment, which are the
proper motions that should have been filed.” (Italics added.)
3 In fact, approximately four years and 10 months had
passed since Cho filed his complaint on March 15, 2017.
4 Pursuant to section 437c, a motion for summary judgment
shall be served at least 75 days before the hearing, and the
motion shall be heard “no later than 30 days before the date of
trial, unless the court for good cause orders otherwise.” (§ 437c,
subds. (a)(2), (3).)
5
Away also suggested that “the interests of justice are best served
by a trial continuance.”
Cho filed a reply in which he opposed Haul-Away’s
suggestion that the trial date be continued. He again requested
that the court advance his summary judgment hearing date and
stated that five years had passed since he filed his complaint.
On January 8, 2022, the trial court continued the trial date
15 months, to August 14, 2023, “[o]n the Court’s own motion.”
III. Haul-Away’s motion to dismiss for failure to
prosecute.
On April 27, 2022, this court affirmed the grant of
summary judgment for CKE. The remittitur issued on August 5,
2022.
On October 17, 2022, Haul-Away filed a motion to dismiss
pursuant to sections 583.310 and 583.360, which provide that an
action shall be brought to trial within five years. Haul-Away
asserted Cho had filed his complaint on March 15, 2017, and thus
under section 583.310 and California Rules of Court, Appendix I,
Emergency Rule 10(a),5 trial had to commence no later than
September 15, 2022. Haul-Away further asserted that it had
never stipulated to extend the time to bring the case to trial, and
the court had not stayed the action during Cho’s appeal of
summary judgment for CKE. Additionally, “[a]t no time during
5 California Rules of Court, Appendix I, Emergency Rule
10(a) provides: “Notwithstanding any other law, including
Code of Civil Procedure section 583.310, for all civil actions filed
on or before April 6, 2020, the time in which to bring the action to
trial is extended by six months for a total time of five years and
six months.”
6
the ex parte hearing of January 28, 2022, did Plaintiff alert this
Court that the new trial date was set beyond the statutory time
frame,” and “at no time during the hearing did Haul-Away
stipulate to waive the provisions of [section 583.310].” Thus,
Haul-Away contended, the court was required to dismiss the case
for failure to prosecute.
Cho opposed the motion to dismiss. He urged that he had
acted diligently to bring the case to trial within five years,
including filing a motion to advance the summary judgment
hearing to a date before the May 9, 2022 trial date. Further,
Haul-Away had repeatedly sought continuances of the trial date,
which the court had granted over Cho’s objections. Cho urged
that these continuances either constituted stays that should be
excluded from the five years, or made it impossible,
impracticable, or futile to bring the case to trial within the
statutory period. Alternatively, Cho urged that Haul-Away was
estopped by its litigation conduct from seeking dismissal under
section 583.310.
On November 10, 2022, the trial court granted the motion
to dismiss and dismissed the action pursuant to section 583.360.
The court found that the case was not stayed during Cho’s
appeal, Cho failed to apprise the court of the impending five-year
deadline, and Cho failed to have the trial date advanced. Thus,
Cho “fail[ed] to show that he exercised reasonable diligence in
prosecuting this case” or that bringing the action to trial “was
impossible, impracticable, or futile.”
Cho timely appealed from the dismissal order.6
6 An order of dismissal is appealable as a final judgment.
(§ 581d [“All dismissals ordered by the court shall be in the form
7
DISCUSSION
Cho contends the trial court erred in dismissing this action
because (1) the action was automatically stayed during the
pendency of his appeal, (2) the trial court’s continuances of the
trial date should have been excluded from the statutory five-year
period to bring the case to trial, and (3) Haul-Away was estopped
by its litigation conduct from seeking to dismiss the action.
As we discuss, the trial court’s repeated continuances
granted over Cho’s objections made it “impossible, impracticable,
or futile” within the meaning of section 583.340, subdivision (c)
for Cho to bring the case to trial within five years. Accordingly,
the trial court erred in dismissing the action.7
I. Standard of review.
Section 583.310 provides that an action shall be brought to
trial within five years. Under section 583.340, however, when
computing the five-year period, a court shall exclude the time
during which (a) “[t]he jurisdiction of the court to try the action
was suspended,” (b) “[p]rosecution or trial of the action was
stayed or enjoined,” or (c) “[b]ringing the action to trial, for any
other reason, was impossible, impracticable, or futile.” (§ 583.340,
of a written order signed by the court and filed in the action and
those orders when so filed shall constitute judgments and be
effective for all purposes”]; Perez v. Grajales (2008)
169 Cal.App.4th 580, 588 [“An order dismissing an action is a
proper subject for appeal”].)
7 Because we so conclude, we do not reach Cho’s alternative
contentions that his case against Haul-Away was stayed during
his appeal against CKE, or that Haul-Away’s numerous
extension requests estopped it from seeking to dismiss.
8
italics added.) An action shall be dismissed by the court on
motion of the defendant or on its own motion if the action is not
brought to trial within the time prescribed. (§ 583.360.)
The plaintiff bears the burden of proving that the
circumstances warrant application of an exception to the five-
year rule, and the trial court has discretion to determine whether
that exception applies. (Gaines v. Fidelity National Title Ins. Co.
(2016) 62 Cal.4th 1081, 1100 (Gaines).) A proper exercise of
discretion “must not be arbitrary, must conform with the spirit of
the law, and must be applied in a way that is consistent with
substantial justice.” (Corrinet v. Bardy (2019) 35 Cal.App.5th 69,
78.) We review the trial court’s decision for an abuse of
discretion—that is, “ ‘[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.)
II. The trial court’s repeated continuances made
bringing the case to trial within five years
“impossible, impracticable, or futile” within the
meaning of section 583.340.
As noted, in calculating the five-year period in which a case
must be brought to trial, the court shall exclude the time during
which bringing the action to trial “was impossible, impracticable,
or futile.” (§ 583.340, subd. (c).) “This exception is recognized
because the purpose of the five-year statute is to prevent
avoidable delay, and the exception makes allowance for
circumstances beyond the plaintiff’s control, in which moving the
case to trial is impracticable for all practical purposes.”
(De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th
9365, 371, citing Tamburina v. Combined Ins. Co. of America
(2007) 147 Cal.App.4th 323, 328.)
Section 583.130 instructs that “the policy favoring trial or
other disposition of an action on the merits [is] generally to be
preferred over the policy that requires dismissal for failure to
proceed with reasonable diligence in the prosecution of an action
in construing the provisions of this chapter.” Accordingly, the
tolling provisions of section 583.340 “ ‘must be liberally construed
consistent with the policy favoring trial on the merits.’ (Dowling
v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 693.)”
(Seto v. Szeto (2022) 86 Cal.App.5th 76, 85.)
“ ‘ “Time consumed by the delay caused by ordinary
incidents of proceedings, like disposition of demurrer,
amendment of pleadings, and the normal time of waiting for a
place on the court’s calendar is not within the contemplation of
these exceptions.” ’ [Citations.] This rule reflects the
Legislature’s understanding that a reasonably diligent plaintiff
should be able to bring the case to trial within the relatively
lengthy period of five years notwithstanding such ordinary
delays.” (Gaines, supra, 62 Cal.4th at p. 1101.) However, a
lengthy delay that has a significant impact on the litigation may
“elevate it from an ordinary circumstance to a circumstance of
impracticability.” (Id. at p. 1102.) Courts thus have focused on
“the extent to which the conditions interfered with the plaintiff’s
ability to ‘mov[e] the case to trial’ during the relevant period.”
(Id. at p. 1101.) Additionally, “case law both predating and
postdating the 1984 statutory revision has long held that ‘[f]or
the tolling provision of section 583.340[(c)] to apply, there must
be “a period of impossibility, impracticability or futility, over
which plaintiff had no control,” ’ because the statute is designed
10
to prevent avoidable delay. [Citations.] The California Law
Revision Commission affirmed this understanding in its comment
to section 583.340: ‘Subdivision (c) codifies the case law
“impossible, impractical, or futile” standard. The provisions of
subdivision (c) must be interpreted liberally, consistent with the
policy favoring trial on the merits. See Section 583.130 (policy
statement). Contrast Section 583.240 and Comment thereto
(strict construction of excuse for failure to serve within prescribed
time). This difference in treatment recognizes that bringing an
action to trial, unlike service, may be impossible, impracticable,
or futile due to factors not reasonably within the control of the
plaintiff.’ (17 Cal. Law Revision Com. Rep., supra, at p. 936,
italics added.)” (Id. at pp. 1102–1103.)
Both before and since the adoption of section 583.340 in
1984, courts have held that the impossibility, impracticability, or
futility exception applies if a plaintiff is unable to take a case to
trial due to continuances ordered on the court’s own motion or
over a plaintiff’s objection.8 For example, in Chin v. Meier (1991)
235 Cal.App.3d 1473 (Chin), the trial court continued or trailed
the trial date four times on its own motion due to courtroom
unavailability, causing delays of 266 days. When the parties
finally were advised that a courtroom was available, the plaintiff
8 Our Supreme Court has explained that the 1984
amendments were intended to “codify, not supplant, the quasi
common-law developments in this area that had evolved over the
preceding decades,” and thus in addition to the statutory
language, “a substantial body of case law guides our analysis.”
(Gaines, supra, 62 Cal.4th at p. 1090.) We therefore look to cases
decided both before and after the 1984 amendments were
adopted.
11
moved to continue the trial for four months to obtain new
counsel, and the court granted the motion over the defendant’s
objection. (Id. at pp. 1476–1477.) The defendant then moved to
dismiss under sections 583.310 and 583.360 for failure to bring
the case to trial within five years, and the trial court granted the
motion. (Chin, at p. 1475.)
The Court of Appeal reversed. It noted that in computing
the five-year period under section 583.310, a court must exclude
the aggregate time in which it was impossible, impracticable, or
futile to bring the action to trial. (Chin, supra, 235 Cal.App.3d at
p. 1475.) That time necessarily included court-ordered
continuances for courtroom unavailability: “A court-ordered
continuance makes it impossible or impractical for a plaintiff to
proceed to trial. Such an occurrence is not reasonably within the
plaintiff’s control. [Citation.] [¶] This statutory construction
favors a trial on the merits and assures a plaintiff is not
penalized because of courtroom unavailability.” (Id. at p. 1478,
italics added.) Thus, the trial court abused its discretion by
failing to deduct from the statutory period “the aggregate periods
of time attributable to each court-ordered continuance because of
courtroom unavailability.” (Ibid.)
The court similarly concluded in Goers v. Superior Court
(1976) 57 Cal.App.3d 72 (Goers). There, the petitioner, Goers,
declared the case at issue in February 1975, and the court set a
trial date of September 8, 1975, about two-and-a-half months
before the expiration of the five-year period. No courtrooms were
available on September 8, or on November 24, the date to which
the court continued the trial on its own motion. When the parties
were advised that a judge and courtroom were unlikely to be
available before November 28, the last day of the five-year period,
12
Goers filed a petition seeking a writ either ordering the trial
court to begin trial within the statutory period or prohibiting the
trial court from dismissing the case for failure to prosecute.
(Id. at p. 74.) The Court of Appeal granted the writ, explaining:
“[S]ection 583, subdivision (b) [now, section 583.360], requires
that a case be dismissed unless it is brought to trial within five
years. Delay may be excused, however, if it has been impossible
or impracticable to proceed to trial. . . . [When] a plaintiff has
waited the normal time for a place on the calendar and has been
assigned such a place well within the five-year period, his
inability thereafter to proceed to trial because of continued court
congestion should not be chargeable to the five-year period. . . .
[¶] . . . [Goers] having taken steps as early as February 1975 to
secure a trial date, and having obtained a trial date two and one-
half months in advance of the expiration of the five-year period,
demonstrated the diligence required of him under the statute.
Upon being advised by [the trial court] on September 8, 1975, and
on each subsequent date set for trial, that courtroom facilities
were unavailable, it became impossible for [Goers] to proceed to
trial.” (Goers, at pp. 74–75.)
Finally, in Breacher v. Breacher (1983) 141 Cal.App.3d 89(Breacher), trial originally was set for a date within the five-year
period. The parties stipulated to a one-month continuance, at
which time they were put on “beeper” call due to the court’s
congested trial calendar. (Id. at p. 91.) The case was sent out for
trial twice, but the defendant, and then the plaintiff, disqualified
the assigned judges. In late December, the defendant asked the
plaintiff to stipulate to going off “beeper call” until after the
holidays, and the plaintiff agreed. (Id. at p. 92.) The parties
were assigned to a third judge for trial after January 4; when
13
that judge observed that more than five years had passed since
the filing of the complaint, the defendant immediately moved to
dismiss, and the trial court granted the motion. (Ibid.) The
Court of Appeal reversed. It noted that the final continuance had
been at the defendant’s request, and thus it “would be most
unseemly to hold that after requesting and obtaining such a
delay defendants may, a few days later upon learning the true
filing date of the complaint, repudiate their own conduct and
instead take advantage of it to secure a windfall dismissal on the
eve of trial.” (Id. at p. 93.) The court thus reversed with
directions to the trial court to restore the matter to the active
calendar. (Ibid.)
Applying these principles here, we conclude that the trial
court abused its discretion by dismissing Cho’s action for failure
to bring it to trial within five years. The trial court continued the
trial four times—for a total of 51 months—each time at the
request of defendants or on the court’s own motion. Cho did not
seek any of the continuances—to the contrary, he expressly
objected to the last two continuances, which collectively delayed
the trial for approximately 24 months. Additionally, Cho told the
court in July 2021, 16 months before the case was dismissed, that
the case was ready for trial; he further said he had not and would
not stipulate to a continuance and that the repeated continuances
were prejudicial to his financial interests and health. And, when
Cho discovered in January 2022 that he could not obtain a
summary judgment hearing prior to the May 2022 trial date, he
immediately filed an ex parte application asking the court to
advance the summary judgment hearing to a date prior to trial,
and he vigorously opposed Haul-Away’s suggestion that the trial
14
be continued. In so doing, Cho twice noted in his declarations
that nearly five years had passed since the filing of his complaint.
On this record, as in Chin, Goers, and Breacher, the trial
court’s refusal to set the case for trial manifestly made it
impossible or impracticable for Cho to bring his case to trial
within five years. Indeed, the facts of the present case are even
more compelling than those of Chin or Breacher. In Chin, the
plaintiff sought a further continuance after the court advised that
a courtroom was available (Chin, supra, 235 Cal.App.3d at
pp. 1476–1477), and in Breacher, the plaintiff acquiesced to the
defendant’s request to go off “beeper call” shortly before the
running of the five years (Breacher, supra, 141 Cal.App.3d at
p. 92). In other words, although courtroom unavailability
unquestionably delayed the trials in Chin and Breacher, in both
cases the trial date ultimately was continued past the five-year
mark either at the plaintiff’s request or with plaintiff’s
acquiescence. In the present case, in contrast, the trial court
continued the trial date past the statutory deadline over Cho’s
objection, thus making it impossible for Cho to begin trial within
the statutory period.
On appeal, Haul-Away urges that Cho did not establish
impossibility or impracticability because he presented no
evidence that it would not have been feasible to proceed to trial
against Haul-Away while the appeal against CKE was pending,
and he “provided no information concerning the estimated length
of trial, the number of witnesses or the extent to which they
would overlap in trials against Haul-Away and Carl’s Jr., the
volume of exhibits, the anticipated cost of trial, or whether a trial
would involve any unusual complexities.” But Cho did not
contend in the trial court that either his pending appeal or the
15
complexity of his case made it impossible to bring the case to trial
within five years. Instead, in opposition to the motion to dismiss,
he urged that he could not timely bring the case to trial because
the trial court repeatedly continued the trial date over his
objection—in other words, that it was impossible to bring his
action to trial because the court refused to permit him to
commence trial within the statutory deadline. As such, the length
and complexity of the anticipated trial were irrelevant to the
impossibility or impracticability of bringing the case to trial.
Next, Haul-Away contends that Cho did not establish his
own diligence in attempting to bring the case to trial because he
did not advise the court that the August 2023 trial date would be
outside of the five-year statutory period. The record belies Haul-
Away’s contention. In fact, in support of both his ex parte
application to advance the summary judgment hearing date and
his reply, in which he opposed Haul-Away’s suggestion that the
trial court continue the trial instead of advancing the summary
judgment hearing date, Cho asserted that five years had passed
since he had filed his initial complaint in the action. To the
extent that the trial court made a contrary finding, that finding is
not supported by the record.9
9 Haul-Away urges that this court is bound by the trial
court’s finding that Cho “ ‘never apprised the court during the
course of the litigation of the impending five-year deadline.’ ”
The court’s statement appears to be based on the declaration of
Haul-Away’s attorney, Morovati, not on the court’s independent
recollection. Regardless, this court is bound by the findings of the
trial court only if they are supported by substantial evidence.
(E.g., San Diegans for Open Government v. Fonseca (2021)
64 Cal.App.5th 426, 436 [Court of Appeal is “ ‘bound by trial
16
Haul-Away also contends that this case is analogous to
Oswald v. Landmark Builders, Inc. (2023) 97 Cal.App.5th 240.
We do not agree. In Oswald, the Court of Appeal held that the
trial court properly dismissed a case for failure to bring it to trial
with the statutory five-year period, as extended by six months
due to the COVID-19 pandemic. The Court of Appeal explained
that the trial court acted well within its discretion in determining
that the pandemic-related courtroom closure and trial
continuance did not make it impossible or impracticable for
plaintiffs to commence trial in a timely fashion—rather,
“plaintiffs’ failure to timely commence trial was due to a lack of
reasonable diligence, i.e., they were never ready for trial during
the relevant periods.” (Id. at p. 248.) The court noted that there
were seven trial continuances “ ‘either requested or caused by
plaintiffs’ ” (id. at p. 245); the last such request was to continue
the trial from a date about five months before the five-year
deadline to one just 10 days before such deadline “ ‘or the earliest
date thereafter’ ” acceptable to the court (id. at p. 244). The
plaintiffs “did not ask for an earlier date on the motion to
continue the trial date, never did so thereafter, and ha[ve] made
no showing that doing so would have been futile.” (Id. at p. 250.)
court’s findings that are supported by substantial evidence’ ”];
Travelers Property Casualty Co. of America v. Workers’ Comp.
Appeals Bd. (2019) 40 Cal.App.5th 728, 737 [appellate court not
bound by lower court findings that are not supported by
substantial evidence or are “unreasonable, illogical, improbable,
or inequitable when viewed in light of the entire record”].) Here,
because the appellate record demonstrates that Cho told the trial
court—twice—that it had been five years since he filed his
complaint, we are not bound by the court’s contrary finding.
17
In the present case, in contrast, Cho never requested a trial
continuance, objected to Haul-Away’s last two requests, and
asked the trial court to advance his summary judgment hearing
date so that his motion could be heard in advance of the then-
existing trial date. Oswald thus is not relevant to our analysis.
Finally, Haul-Away urges that Cho was not diligent in
attempting to bring the case to trial because he did not bring a
motion to advance the trial date. We do not agree. While Cho
did not move to advance the trial date, he did seek to advance the
summary judgment hearing date so that his motion for summary
judgment could be held prior to the existing trial date, which was
within the five-year period—and when Haul-Away suggested that
the trial court instead continue the trial date yet again, Cho
urged the court not to do so, asserting that “[a]ny further attempt
by [Haul-Away] [to continue the trial date] must not be allowed.”
On this record, it is not clear what more Cho could have done.
Moreover, “[while] in propria persona litigants are not entitled to
special exemptions from the California Rules of Court or Code of
Civil Procedure[,] . . . [t]hey are . . . entitled to treatment equal to
that of a represented party. Trial judges must acknowledge that
in propria persona litigants often do not have an attorney’s level
of knowledge about the legal system and are more prone to
misunderstanding the court’s requirements. . . . When one party
is represented and the other is not, . . . [t]he judge should monitor
to ensure the in propria persona is not inadvertently misled,
either by the represented party or by the court. . . . This is the
essence of equal and fair treatment, and it is not only important
to serve the ends of justice, but to maintain public confidence in
the judicial system.” (Gamet v. Blanchard (2001) 91 Cal.App.4th
1276, 1284.) These principles suggest that when the trial court
18
continued the trial over Cho’s express objection—and in the
absence of any clarifying information from the court—Cho was
entitled to conclude that he would be permitted to proceed to trial
on the date set by the court.
For all of these reasons, as a matter of law it was
“impossible” or “impracticable” for Cho to have brought this case
to trial during at least the 24 months that the court continued
the trial over his objections. Accordingly, the trial court abused
its discretion by failing to exclude those 24 months from the five-
year calculation, and by dismissing Cho’s complaint for failure to
bring the case to trial within five years.
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DISPOSITION
The order of dismissal is reversed. On remand, we direct
the trial court to promptly set a hearing on Cho’s motion for
summary judgment and, if the motion is denied, to promptly set
the matter for trial. Cho is awarded his appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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