Filed 1/12/22; Certified for Publication 2/3/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MARY ABLES,

Plaintiff and Appellant,

v.

A. GHAZALE BROTHERS, INC., et al.,

Defendants and Respondents.

F082670

(Super. Ct. No. BCV-15-100587)

OPINION

THE COURT*

APPEAL from orders of the Superior Court of Kern County. David R. Lampe, 

Judge.

Law Offices of George Fogy and George Fogy for Plaintiff and Appellant.

Mark R. Weiner & Associates, Michael Park, Kathryn Albarian and Mark 

Herskovitz, for Defendants and Respondents A. Ghazale Brothers, Inc. and Joseph AbouGhazale.

Baker, Manock & Jensen, Deborah A. Coe and Diane E. Coderniz, for Defendant 

and Respondent Central Freight Xpress, Inc.

-ooOoo-

* Before Detjen, Acting P. J., Peña, J. and De Santos, J.
2.

Mary Ables appeals from the trial court’s orders dismissing her action against 

A. Ghazale Brothers Inc., Joseph Abou-Ghazale (together “Ghazale Brothers”) and 

Central Freight Xpress, Inc. (“Central Freight”) for failure to bring the action to trial 

within the period required by Code of Civil Procedure,1section 583.310. 

Section 583.310 requires an action to “be brought to trial within five years after 

the action is commenced against the defendant.” Ables filed her complaint against 

respondents in July of 2015.2In November of 2019, Ables filed an ex parte application 

requesting the trial be continued “for at least 6 months.” The trial court granted Ables’s 

request and continued the trial to March of 2021. In February of 2021, Ghazale Brothers 

and Central Freight moved to dismiss the case for failure to bring the action to trial within 

five years. The trial court granted the motions to dismiss the case. 

The Judicial Council of California enacted emergency rules due to the COVID-19 

pandemic. Emergency Rule 10(a) states: “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 of 

five years and six months.” (Cal. Rules of Court, Appen. I, Emergency Rule 10(a).) The 

March 2021 trial date, however, fell five years and seven months after the action was 

commenced. 

In the trial court, and now on appeal, Ables asserts that section 583.350 applies. 

Section 583.350 provides that, if the time within which an action must be brought to trial 

is “tolled or otherwise extended pursuant to statute,” the action “shall not be 

dismissed ... if the action is brought to trial within six months after the end of the period 

1 All statutory references are to the Code of Civil Procedure. 

2 The original complaint named only A. Ghazale Brothers, Inc. and Joseph AbouGhazale as defendants. However, the complaint was amended on August 18, 2016, to 

name Central Freight as Doe 1. 
3.

of tolling or extension.” (§ 583.350.) We conclude section 583.350 does not apply in 

this case. 

Also on appeal, Ables asserts that Ghazale Brothers and Central Freight waived, 

and are therefore estopped from requesting, dismissal of her action. The trial court found 

otherwise. Ables fails to establish the trial court erred. 

We affirm.

FACTS

On July 24, 2015, Ables filed a complaint in the Kern County Superior Court 

alleging that she was injured due to both Ghazale Brothers and Central Freight’s 

negligence. Specifically, Ables alleged that, while delivering a load of chicken meat to 

Ghazale Brothers, they asked her to help unload the truck. Doubting her ability to do so, 

she requested Central Freight send help to unload, which it refused to do. Subsequently, 

she helped unload the chicken but was injured when a pallet hoisted by a machine 

operated by J. Ghazale broke, causing frozen boxes of chicken to fall on her. 

Between 2016 and 2018, discovery progressed and was ultimately cut off by the 

trial court’s order on July 20, 2018 in response to Central Freight’s request to continue 

trial, which Ghazale Brothers opposed. Central Freight requested continuances twice 

more: first on February 4, 2019, then on June 24, 2019. Ghazale Brothers opposed both 

requests. On November 12, 2019, Ghazale Brothers submitted proposed jury instructions 

and other forms in preparation for trial. 

Ables then filed a request for a trial continuance on November 14, 2019, which 

was heard on November 15, 2019. The court granted Ables’s request and set a trial date 

for March 8, 2021, over five years and seven months from the date Ables filed her 

complaint.3 Around this time, Ables’s counsel purportedly sent a letter dated 

3 The record on appeal does not indicate why the trial court chose the March 8, 

2021 trial date; however, nothing before us indicates that Ables objected to that trial date.
4.

November 15, 2019 to Ghazale Brothers’s counsel confirming the latter’s agreement to 

the March 8, 2021, trial date and claiming that Central Freight’s counsel had agreed to 

the same. 

On February 1, 2021 and February 3, 2021, Ghazale Brothers and Central Freight, 

respectively, brought separate motions to dismiss Ables’s action for failure to bring it to 

trial within five years after its commencement. 

In opposition, Ables asserted that the March 8, 2021 trial date was not outside the 

five-year limit imposed by section 583.310. She argued that pursuant to section 583.350, 

the extension referred to in Emergency Rule 10(a) provided an additional six months in 

which to bring the action to trial. Ables also argued that the respondents waived their 

right to seek dismissal and should be estopped from doing so. 

Ables’s counsel also filed a declaration in opposition wherein he alleged that 

Ghazale Brothers and Central Freight’s respective attorneys agreed to the March 8, 2021 

trial date outside the statutory period while at the November 15, 2019, Mandatory 

Settlement Conference. However, both respondents’ respective attorneys submitted 

declarations expressly disclaiming any such agreement, and Ghazale Brothers’s counsel 

claimed she never received the November 15, 2019, letter.4 

On March 3, 2021, the court heard arguments on the motions for dismissal and 

issued, the same day, its ruling granting the motions. Specifically, the court noted that 

Ables never apprised the court of the impending five-year deadline, and, had she done so, 

the court would have accommodated trial within that deadline. Furthermore, the court 

found that neither Ghazale Brothers nor Central Freight stipulated to extend the five-year 

deadline, and that counsel for Ghazale Brothers credibly attested that she never received 

the November 15, 2019, letter. The court rejected Ables’s argument that Emergency 

4 Section 583.330 requires that any stipulation to extend time must be in writing,

or by oral agreement in open court if entered in the minutes or a transcript is made. 
5.

Rule 10(a) invoked section 583.350 because section 583.350 requires that a statute

extend the period and the former Rule is not a statute. 

Ables received notice of the entry of order for dismissal on March 30, 2021, and 

timely appealed on April 12, 2021. 

DISCUSSION

The Judicial Council of California adopted Emergency Rule 10(a). That Rule is 

located in Appendix I of the Rules of Court. Because they are enacted by the Judicial 

Council and not by the Legislature, the Rules of Court are not statutes. (See Cal. Const., 

art VI, § 6, subd. (d) [Judicial Council is authorized to adopt rules of court “not ... 

inconsistent with statute.”]; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012 

[Judicial Council is an administrative agency promulgating administrative rules]; 

California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 

15, 22 [Judicial Council’s rulemaking authority subordinate to Legislature].) 

Furthermore, Ables forfeited any argument that Emergency Rule 10(a) is a statute 

by failing to raise that argument below and on appeal. (Golden Door Properties, LLC v. 

Superior Court (2020) 53 Cal.App.5th 733, 786 (Golden Door) [“issues not addressed as 

error in a party’s opening brief with legal analysis and citation to authority are 

forfeited”]; Schultz v. Workers’ Comp. Appeals Bd. (2015) 232 Cal.App.4th 1126, 1134 

[“issues not raised in the trial court are generally forfeited for purposes of appeal”].)

In this case, the trial court found that, with the six-month extension pursuant to 

Emergency Rule 10(a), Ables had until January 24, 2021 to bring her civil action to trial. 

Because Emergency Rule 10(a) is not a statute but an administrative rule, it did not 

extend Ables’s deadline pursuant to statute and did not trigger section 583.350’s extra 

six-month period. Ables’s failure to establish a statutory “extension, excuse, or 

exception” is fatal to her appeal,5 and the trial court properly dismissed her case. (See 

5 Ables seems to argue that Emergency Rule 10(a) tolled the five-year period 

under section 583.310. Not so. Emergency Rule 10(a) extended “the time in which to 
6.

§ 583.360, subd. (b) [dismissal for failure to bring an action to trial within specified time 

is “mandatory and ... not subject to extension, excuse, or exception except as expressly 

provided by statute”].)6

Finally, Ables’s argument that neither Ghazale Brothers nor Central Freight may 

move for dismissal because they either “waived their right” to do so or should be 

estopped from doing so is fatally flawed. Among the most fundamental principles of 

appellate jurisprudence is that the appellant must demonstrate that the trial court 

committed error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608—609; Hernandez v. 

First Student, Inc. (2019) 37 Cal.App.5th 270, 277.) Ables failed to even argue that the 

trial court committed error. 

The arguments in Ables’s brief are undeveloped, lack sufficient citations to 

authority and to the record, and fail to allege any trial court error. Consequently, we 

consider them forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Golden Door, 

supra, 53 Cal.App.5th at p. 786 [“issues not addressed as error in a party’s opening brief 

with legal analysis and citation to authority are forfeited”]; WFG National Title Insurance

Company v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894; Kinsella v. 

Kinsella (2020) 45 Cal.App.5th 442, 464.) It was Ables’s burden, not ours, to make 

arguments from legal authority and the record demonstrating the trial court erred. 

bring an action” to “a total time of five years and six months.” (Emphasis added.) Ables 

was not prevented from bringing an action to trial before the end of the five-year, sixmonth period, and the time was not tolled. 

6 Ables errs in concluding that “the reason for the tolling of the five-year statute is 

irrelevant.” In Him v. Superior Court (1986) 184 Cal.App.3d 35, 39, which Ables relies 

upon exclusively, the court found that an attorney’s illness made bringing an action to 

trial impracticable, thus tolling section 583.340’s five-year period. Pursuant to 

section 583.340, subdivision (c), a condition resulting in the impracticability of bringing 

an action to trial is a reason for tolling the five-year period.
7.

(Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984—985.)7 She has not met 

her burden. 

DISPOSITION

The trial court’s orders dismissing Ables’s complaint are affirmed. Respondents 

are awarded their costs on appeal.

7 Ables’s argument relies on two documents from the record: a letter to opposing 

counsel, and Ables’s counsel’s declaration in opposition to respondents’ motions. Ables 

does not dispute the trial court’s dismissal of what the trial court characterized as “a selfserving letter,” and fails to explain both the legal significance of, and why the trial court 

erred in, not considering Ables’s counsel’s declaration. Ables’s reliance on other 

statements of fact without citations to the record results in forfeiture of those issues. 

(Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) 
Filed 2/3/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MARY ABLES,

Plaintiff and Appellant,

v.

A. GHAZALE BROTHERS, INC., et al.,

Defendants and Respondents.

F082670

(Super. Ct. No. BCV-15-100587)

ORDER GRANTING REQUEST 

FOR PUBLICATION

As the nonpublished opinion filed on January 12, 2022, in the above entitled

matter hereby meets the standards for publication specified in the California Rules of 

Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the 

Official Reports.

DETJEN, ACTING P. J.

WE CONCUR:

PEÑA, J.

DE SANTOS, J.