Filed 2/23/24 Cho v. Haul-Away Rubbish Service Co. CA2/3

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MIN SUN CHO,

Plaintiff and Appellant,

v.

HAUL-AWAY RUBBISH SERVICE 

CO.,

Defendant and Respondent.

B326376

(Los Angeles County

Super. Ct. No. BC654003)

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.
2

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

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.
3

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 HaulAway 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 
4

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 
5

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 HaulAway 75 days to file an opposition.

4 Nonetheless, Haul-Away 

urged that advancing the hearing “would be prejudicial to [HaulAway] who has to oppose this motion by a pro per plaintiff and 

[who] relied on the current scheduled date for the motion.” Haulmotion 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).)
6

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.”
7

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 
8

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.
9

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 fiveyear 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 
10

365, 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 
11

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.
12

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, 
13

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 onehalf 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 
14

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 
15

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
16

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 HaulAway’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 
17

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.
18

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 thenexisting 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 
19

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 fiveyear calculation, and by dismissing Cho’s complaint for failure to 

bring the case to trial within five years.
20

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.