Luna v. Penta Internat. Corp. CA2/7
B301660
| Cal. Ct. App. | Sep 21, 2021Background
- Luna filed a products-liability action on May 8, 2014; an initial jury trial was set for January 7, 2019.
- Defendants (including Penta) obtained two written/ex parte continuances before the five‑year deadline, moving the trial to May 6, 2019.
- On April 15, 2019 Luna filed an ex parte application to continue trial again; a telephonic April 18, 2019 hearing (no court reporter) resulted in a minute order continuing the trial to September 10, 2019.
- The five‑year statutory deadline for bringing the action to trial was May 8, 2019; Penta moved to dismiss under Cal. Code Civ. Proc. § 583.310 on May 9, 2019.
- Dispute focused on whether Penta had agreed (in writing or orally in open court) to extend/waive the five‑year rule — Plattenberger (Luna’s counsel) relied on a draft ex parte application emailed by Penta’s counsel (Gracco) and his representation that he filed it; Gracco disputed any agreement or authorization.
- The trial court sustained evidentiary objections to parts of Plattenberger’s declaration, found no written stipulation, no oral agreement in open court, no estoppel or waiver, granted dismissal, and the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a written stipulation tolled/extended the five‑year rule | Luna: the ex parte papers (and Gracco’s draft email) show Penta agreed to continue | Penta: no writing from Penta clearly extending/waiving the five‑year period; draft was a courtesy | No — court found no written stipulation; plaintiff failed to produce clear, uncontrovertible writing |
| Whether an oral agreement in open court tolled the period | Luna: counsel’s silence/representations at the April 18 telephonic hearing amounted to an oral agreement | Penta: no transcript/minute entry showing oral agreement; counsel did not assent | No — no transcript and minute order did not record an oral agreement; requirement unmet |
| Whether Penta is equitably estopped from moving to dismiss | Luna: relied on Gracco’s draft and conversations; counsel was misled into filing ex parte | Penta: never requested filing on its behalf and only agreed not to oppose an ex parte; no intent to induce reliance | No — plaintiff did not prove estoppel elements; trial court credited Penta’s account |
| Whether Penta waived right to dismissal | Luna: Penta’s counsel’s silence at hearing constituted waiver | Penta: did not intend to relinquish the five‑year right and never expressly waived it | No — waiver requires clear and convincing proof of intentional relinquishment; none shown |
Key Cases Cited
- Miller & Lux Inc. v. Superior Court, 192 Cal. 333 (1923) (requirement that written stipulation clearly and expressly extend time or waive dismissal)
- General Ins. Co. v. Superior Court, 15 Cal.3d 449 (1975) (written stipulation or oral agreement in open court must extend time or waive right to dismissal)
- Gaines v. Fidelity Nat. Title Ins. Co., 62 Cal.4th 1081 (2016) (standards for exceptions like estoppel and abuse-of-discretion review)
- Nunn v. JPMorgan Chase Bank, N.A., 64 Cal.App.5th 346 (2021) (example where oral agreement in court was found to extend statutory deadline)
- Smith v. Bear Valley Milling & Lumber Co., 26 Cal.2d 590 (1945) (separate writings by counsel may constitute a written stipulation)
- Miles v. Speidel, 211 Cal.App.3d 879 (1989) (apply contract-interpretation rules and consider surrounding circumstances when deciding if writings form a stipulation)
- Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1 (1995) (definition and burden of proof for waiver)
- Lynch v. California Coastal Com., 3 Cal.5th 470 (2017) (waiver requires intentional relinquishment of a known right)