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Filed 9/21/21 Luna v. Penta Internat. Corp. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

PHILLIP LUNA,

Plaintiff and Appellant,

v.

PENTA INTERNATIONAL 

CORPORATION, 

Defendant and

Respondent.

 B301660

 (Los Angeles County

 Super. Ct. No. BC544985)

APPEAL from a judgment of the Superior Court of Los

Angeles County, 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.

__________________________
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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 Procedure1 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 

1 All further statutory references are to the Code of Civil 

Procedure.

2 The cases against all defendants except Penta and 

Centrome were settled, dismissed, or resolved by summary 

judgment. Centrome settled after judgment was entered in its 

favor. Penta is the only appellant.
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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.
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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 
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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 
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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. [¶] . . . [¶] 

3 The trial court sustained Penta’s evidentiary objections

because Plattenberger was not present at the April 18, 2019 

hearing. On appeal, Luna does not challenge the trial court’s 

evidentiary rulings.
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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 

dismissal under section 583.360. (§ 583.140.)

We review for an abuse of discretion the trial court’s 

decision whether an exception applies to mandatory dismissal for 

failure to bring an action to trial within five years. (Gaines v. 

4 The trial court also entered judgment for Centrome based 

on its motion to dismiss based on the five-year rule.
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Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100 

(Gaines) [trial court did not abuse its discretion in refusing to 

exclude 120-day period of partial stay of action from five-year 

period under section 583.340, subdivision (c), because bringing 

case to trial within five-year period was not impossible, 

impracticable, or futile]; see Nunn v. JPMorgan Chase Bank, 

N.A. (2021) 64 Cal.App.5th 346, 351, 354 [trial court abused its 

discretion in dismissing action for failure to bring case to trial 

within three-year period of section 583.320 where parties orally 

agreed to extend deadline].) Under this standard, “‘[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; accord, Nunn, at p. 354.)

B. None of the Exceptions Applies To Extend the Five-year 

Period

1. Substantial evidence supports the trial court’s finding 

there was no written stipulation

As discussed, under section 583.330, subdivision (a), the 

parties may extend the five-year period during which an action 

must be brought to trial by a written stipulation. However, as 

the Supreme Court has cautioned, “[N]o case decided by this 

court has held that anything short of a written stipulation 

extending in express terms the time of trial to a date beyond the 

five-year period, or expressly waiving the right to a dismissal 

under that section, will suffice to toll the running of the statutory 

time. [¶] . . . [¶] The provision that a written stipulation be 

entered into was intended to preclude all disputes . . . by a 

requirement that clear and uncontrovertible evidence be 
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presented to the court that the statutory time was deliberately 

intended to be extended by both parties.” (Miller & Lux Inc. v. 

Superior Court (1923) 192 Cal. 333, 338, 340; accord, Munoz v. 

City of Tracy, supra, 238 Cal.App.4th at p. 361.)

For purposes of section 583.330, subdivision (a), separate

writings by both sides may constitute a written stipulation if the 

writings clearly indicate agreement to an extension of the trial 

date past the five-year period or waiver of the right to dismissal. 

(See Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal.2d 

590, 599-600 [separate affidavits of parties’ attorneys reflecting 

oral agreement to continue trial constituted written stipulation 

sufficient to avoid dismissal]; Charles L. Donohoe Co. v. Superior 

Court (1927) 202 Cal. 15, 17 [letters between attorneys were 

sufficient to constitute a written stipulation extending the 

statutory time even though there was no separate document 

called a stipulation].) In determining whether a stipulation 

extends the five-year period or waives the right to dismissal, the 

rules of contract interpretation apply, and “‘the court may look to 

the circumstances surrounding the making of the 

agreement . . . .’” (Miles v. Speidel (1989) 211 Cal.App.3d 879, 

883; accord, Smith, at p. 601.)

 The trial court’s finding there was no written stipulation 

is supported by substantial evidence. On appeal, Luna fails to 

provide “clear and uncontrovertible evidence” of a writing 

between the parties that extends the statutory period. (Miller & 

Lux Inc. v. Superior Court, supra, 192 Cal. at p. 340.) Luna 

contends its ex parte application for a continuance constituted a 

written stipulation because Penta did not object during the April 

18, 2019 hearing to the statement in Luna’s ex parte application 

for a continuance that “[t]he parties have jointly agreed.” But 
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even if there was evidence of Penta’s failure to object at the 

hearing (which there is not), section 583.330, subdivision (a), 

requires a writing from Penta clearly indicating its intent to 

extend the statutory period. No such writing exists. Luna points 

to the email Gracco sent Plattenberger containing the draft ex 

parte application and Plattenberger’s declaration in which he 

stated his belief he was doing Gracco a favor by filing an ex parte 

application using the draft Gracco sent him. However, Gracco’s 

email to Plattenberger only stated she was sending a draft of an 

ex parte application she was working on; it lacks a clear 

statement that she agreed to a continuance. Further, Gracco 

stated in her declaration the draft ex parte application was not 

intended to be a stipulation because Penta’s counsel had no 

authority to seek a continuance.

2. Substantial evidence supports the trial court’s finding

there was no oral agreement in open court

As discussed, under section 583.330, subdivision (b), the 

five-year statutory period may be extended “[b]y oral agreement 

made in open court, if entered in the minutes of the court or a 

transcript is made.” Here, the April 18, 2019 minute order does 

not reflect an oral agreement of counsel.

5 Rather, it indicates 

only that “pursuant to the request of the plaintiff” the court 

granted Luna’s ex parte application to continue the trial. 

Further, there is no transcript of the hearing because no court 

reporter was present. Substantial evidence therefore supports 

5 We do not reach Luna’s argument on appeal that Penta’s

attorney’s silence at the hearing constituted an oral agreement

because there is no record of whether there was silence or assent 

by Penta’s attorney at the hearing.
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the trial court’s finding there was no oral agreement in open 

court as required by section 583.330, subdivision (b), to extend 

the five-year period.

3. Substantial evidence supports the trial court’s finding 

estoppel does not apply

A defendant may be estopped from seeking a mandatory 

dismissal for failure to bring the case to trial within the five-year 

period. (Gaines, supra, 62 Cal.4th at pp. 1097-1098; Jordan v. 

Superstar Sandcars (2010) 182 Cal.App.4th 1416, 1422.) 

“Equitable estoppel requires that: (1) the party to be estopped 

was aware of the operative facts and either intended that its act 

or omission be acted upon, or acted in such a way that the party 

asserting estoppel rightfully believed it was intended; and (2) the 

party asserting estoppel was unaware of the facts and relied on 

the other party’s conduct to its detriment.” (Gaines, at p. 1097; 

accord, Jordan, at pp. 1422-1423.) “The party asserting estoppel 

has the burden to establish these elements.” (Gaines, at p. 1097;

accord, Busching v. Superior Court (1974) 12 Cal.3d 44, 53.)

Luna contends, relying on the statements in 

Plattenberger’s declaration describing his April 11, 2019 

telephone conversation with Gracco, that Gracco asked 

Plattenberger to file the ex parte application on Penta’s behalf. 

Although it is undisputed Gracco provided Plattenberger a draft 

of an ex parte application, Gracco stated in her declaration she 

never asked Plattenberger to file the ex parte application on 

Penta’s behalf, and instead only sent the draft as a courtesy. The

declarations of Gracco and Plattenberger are therefore in conflict,

but substantial evidence supports the trial court’s implied finding 

that Gracco did not request the continuance or that Plattenberger
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file the ex parte application on Penta’s behalf, especially given 

the lack of any indication in Gracco’s email attaching the draft ex 

parte application that she wanted Plattenberger to file the 

document. Rather, Gracco simply stated, “As we discussed, here 

is the draft of the papers we were in the process of preparing for a 

trial continuance.” Further, Gracco’s account of what happened 

was more reasonable—that Penta did not object to Luna seeking 

a continuance, and Gracco provided a draft ex parte application 

as a courtesy to Plattenberger, not that Gracco requested

Plattenberger file the ex parte application on behalf of Penta 

against her client’s wishes.

Luna also argues that prior to receipt of Penta’s motion to 

dismiss, Plattenberger was unaware that Penta opposed a trial 

continuance. But the trial court sustained Penta’s evidentiary 

objection to this statement in Plattenberger’s declaration. 

Further, Gracco stated in her declaration that she told 

Plattenberger “that both Penta and Centrome would not object to 

an ex parte trial continuance request but they would not execute 

a written stipulation to continue the trial date as they were both 

prepared to proceed to trial on the May 6, 2019 date.”

4. Substantial evidence supports the trial court’s finding 

there was no waiver

“‘“[W]aiver” means the intentional relinquishment or 

abandonment of a known right.’ [Citations.] Waiver requires an 

existing right, the waiving party’s knowledge of that right, and 

the party’s ‘actual intention to relinquish the right.’ [Citation.]

‘“Waiver always rests upon intent.”’ [Citation.] The intention 

may be express, based on the waiving party’s words, or implied, 

based on conduct that is ‘“so inconsistent with an intent to 
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enforce the right as to induce a reasonable belief that such right 

has been relinquished.”’” (Lynch v. California Coastal Com. 

(2017) 3 Cal.5th 470, 475; accord, Waller v. Truck Ins. Exchange, 

Inc. (1995) 11 Cal.4th 1, 31-32.) “‘The burden . . . is on the party 

claiming a waiver of right to prove it by clear and convincing 

evidence that does not leave the matter to speculation, and

“doubtful cases will be decided against the existence of a waiver”

[citation].’” (Waller, at p. 31; accord, Antonopoulos v. MidCentury Ins. Co. (2021) 63 Cal.App.5th 580, 600.)

Substantial evidence supports the trial court’s finding there 

was “no record of a waiver of the five-year statute.” Luna 

contends Penta waived its right to dismissal based on its 

attorney’s silence during the hearing on the ex parte application.

But the trial court sustained Penta’s evidentiary objections to 

Plattenberger’s account of what happened at the hearing. Thus, 

the only record of the hearing is the account from Penta’s counsel,

J. Todd Konold, who stated that during the April 18, 2019 

telephonic hearing, he “did not indicate—explicitly or impliedly—

that Penta would waive the five-year rule.” And as discussed, 

Gracco stated in her declaration she told Plattenberger that 

Penta would not stipulate to a continuance. On this record, 

Penta did not waive its right to seek dismissal of the action based 

on Luna’s failure to bring the case to trial within the five-year

period.
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DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

IBARRA, J.*

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.