SHAYAN BOLBOLAN VS. MIKE GENARDINI, ET AL.

Plaintiff Has Not Made a Showing of Impossibility, Impracticability or Futility

Plaintiff has opposed the motion. It is Plaintiff’s burden to make show that it was impossible, impracticable or futile to bring the case to trial within five years. (Martinez v. Landry’s Restaurants, Inc. (2018) 26 Cal.App.5th 783, 794.) Plaintiff makes several unsupported and irrelevant contentions on pages 2 and 3 of his submission regarding the alleged actions of the Hon. Nancy L. Fineman and defense counsel. None of the reasons are supported by legal authority, and the court is aware of no such authority, that use these alleged facts to extend the five year statute. In addition, Plaintiff on page 1 of his submission raises two issues: Judge Fineman made numerous sua-sponte continuances for trial setting hearings and thus the case was tolled for about three years and that from April 2024 until now, another judge of this court, due to

June 23, 2026 Law and Motion Calendar PAGE 3 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ plaintiff’s illness, said that plaintiff was not to move forward with any court proceedings, such as trial.

As to the first contention about the stay due to continuances, the record shows a different chronology. This case was initially set for trial on October 26, 2022 with the parties in pro per, but due to Judge Fineman being in another trial, she continued the case. (Min. of Oct. 4, 2022.) The minutes reflect that the parties agreed that the case would be a two day court trial with a new trial date of February 23, 2023 and plaintiff discussed amending the complaint. (Ibid.) Newly retained defense counsel requested a trial continuance which was granted on January 20, 2023 (Order filed Jan. 20, 2023) and on January 31, 2023, trial was reset for March 15, 2023. (Min. of Jan. 31, 2023.)

However, on March 13, 2023, Plaintiff then filed a Code of Civil Procedure section 170.1 challenge to Judge Fineman, she issued an order vacating the trial so that the challenge could be decided, and set a trial setting conference for August 15, 2023. (Order Vacating Trial file Mar. 17, 2023.) On April 18, 2023, the challenge to Judge Fineman was overruled/denied. (Order filed Apr. 18, 2023.) No party sought to advance the trial setting conference. On August 15, 2025, Plaintiff failed to appear for the August 15, 2023 trial setting conference but defense counsel appeared. (Min. of Aug. 15, 2023.)

At the next trial setting conference on September 19, 2023, all parties appeared and Plaintiff requested a continuance because he wanted to amend the complaint and the court set a trial setting conference for December 5, 2023. (Min. of Sept. 19, 2023.) On October 18, 2023, Plaintiff filed his motion for leave to file a first amended complaint, which motion was granted on November 14, 2023. (Min. of Nov. 14, 2023.) At the December 5, 2023 trial setting conference, Plaintiff did not appear but defense counsel did. (Min. of Dec. 5, 2023.)

At the March 5, 2024 trial setting conference, all parties appeared and all parties agreed that Plaintiff could bring a motion to file an amended complaint. No amended complaint was filed before the August 20, 2024 trial setting conference. At that conference, all parties were present and Plaintiff requested a continuance of three months because he was ill. (Min. of Aug. 20, 2024.) At the December 10, 2024 trial setting conference, Plaintiff failed to appear. (Min. of Dec. 10, 2024.) At the August 26, 2025 trial setting conference, Plaintiff failed to appear and the Court denied an order motion to dismiss based upon the fiveyear statute. (Min. of Aug. 26 2025.)

The court set an order to show cause re dismissal for failure to prosecute for January 13, 2026. (Ibid.) On January 13, 2026, all parties were present, and the court continued the OSC until June 30, 2026. (Min. of Jan. 13, 2026.) On February 2, 2026, defendants filed this motion to dismiss. Thus, the record shows that two trials were set and continued, but that all other delays are attributable to Plaintiff. Even now the newly added defendant in the First Amended Complaint, Jesus Jara, does not appear to have been properly served so the case is not at issue.

While the continuances might serve as facts supporting a finding of tolling, they do not automatically toll the action such as when there is a stay of the entire case. (See Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081; Seto v. Szeto (2022) 86 Cal.App.5th 76; De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 372.) Plaintiff makes no showing that because of these continuances, it was impossible, impracticable or futile to bring this case to trial. Further, most of the continuances were due to either Plaintiff’s failure to appear or his request for additional time to, e.g. amend the complaint and the court finds a lack of diligence on his part because the last trial continuance was in March of 2023, over three years ago.

June 23, 2026 Law and Motion Calendar PAGE 4 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Plaintiff also claims that due to an illness, from April 2024 until now, another judge of this court said that he could not move forward with any court proceeding such at trial. This reason could support tolling. However, Plaintiff provides no evidence to support this contention; only his conclusory statement. The Court is aware that Plaintiff once asked for a three month continuance because of alleged health issues, but no evidence was provided at the hearing of health issues and the trial setting conference was continued by stipulation.

Without evidence of the illness and without any explanation of how the illness made it impossible, impracticable or futile to bring the case to trial within five years, the Court must reject his argument.

Five-Year Period Has Not Expired as to Entire Case

This action was commenced on July 23, 2020, more than five years ago and six months ago by Plaintiff who has acted in pro per during the entirety of this action. (See Jul. 23, 2020 Cpt.) The case has not been brought to trial. Defendants Genardini and On Track request “the Court dismiss, with prejudice, the entirety of Plaintiff’s civil action against Defendants ... .” (Feb. 3, 2026 Memorandum of Points & Authorities, p. 3, ll. 12–13.) Defendant Jesus Jara, who has not appeared, did not join the motion.

The time at which the five-year period commences may be different for different defendants, meaning the five-year deadline may have expired as to one defendant but not another.

As to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint. [Citation.] But when a new party is added to the action, the action commences as to that party on the date of the order adding him or her as a party or on the date of filing of the pleading naming him or her as a new party.

(Gray v. Firthe (1987) 194 Cal.App.3d 202, 209.) Contrary to Genardini’s and On Track’s contention, causes of action against a later-joined defendants do not and cannot ‘relate back’ to any earlier pleading. (See ibid. [trial court erred when it “did not consider whether the defendants were persons or entities identified in the original complaint against whom some form of relief was sought”].) Thus, each of the three named defendants in this matter must be independently assessed to determine whether the claims against them are subject to mandatory dismissal.

Because the operative First Amended Complaint (“FAC”) was filed on January 26, 2024, the fiveyear time to try causes of action against any defendants first named in the FAC has not yet expired, and those causes of action are not subject to dismissal.

Jara is not named in the complaint. Accordingly, the motion is DENIED with respect to Jara.

The question on whether Genardini and On Track were named in the original Complaint, however, is less than clear.

The original form Complaint lists “On Track Automotive Repair” as the defendant in the caption while naming “Mike (On Track Automotive)” as the defendant in section 1. (Complaint, p. 1.)

June 23, 2026 Law and Motion Calendar PAGE 5 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ The attachment to the Complaint setting forth the basis of the suit states that Plaintiff Shayan Bolbolan is suing “Mike Ontrack.” (Id., at p. 3.) The other allegations of the pleading state that each defendant is a natural person except one is a business entity of unknown form. (Id., at § 4.)

Judge Fineman was assigned as the judge for all purposes on June 8, 2021 and presided over the case since that date. Based upon the court’s review of the pleadings in the court file, it appears that Plaintiff believed that he had sued both defendants. For example, the January 4, 2022 and February 17, 2023 Joint Case Management Statements has both Genardini and On Track in the caption. When he brought his motion for leave to file a first amended complaint, Plaintiff named both On Track and Genardini in the caption. (Mot. caption filed Oct. 18, 2023.) The proposed amended complaint names On Track, Genardini and the newly added Jara. (Id., p. 6/10; First Amended Cpt filed Jan. 26, 2024.)

The Court also referred to two defendants. (See e.g. Notice of Case Management and Trial Setting Conference filed July 28, 2021, Aug. 10, 2021, Sept. 29, 2021 & Dec. 7, 2021; Notice of Mandatory Settlement Conference filed Jan. 31, 2022 & Jan. 11, 2022, Aug. 30, 2022 [all listing On Trak Automotive Repair; Mike Genardini as defendants]; Order Continuing Pretrial Conference to Oct. 4, 2022 at 10:00 a.m.; Pretrial Orders filed Jan. 11, 2022 & Oct. 4, 2022 [all listing as defendants On Track Automotive Repair et al.].)

Plaintiff never told the court that there was only one defendant. The Court does note that the minutes are inconsistent about naming who is a defendant and that it appears that only Genardini, in pro per, initially answered the complaint but that the answer is unclear. When Alexander M. Kallis substituted in as counsel on January 30, 2023, he only substituted in for Genardini.

Based upon the reference to Mike Ontrack in section one of the complaint, the numerous times Plaintiff listed both On Track and Genardini in the caption prior the First Amended Complaint being filed, Plaintiff never objecting to the Court’s references to both On Track and Genardini in pleadings, and the lack of opposition by Plaintiff, the Court determines that both On Track and Genardini were named in the original complaint. (See Cal. Prac. Guide Civ. Proc. Before Trial § 6:91 et seq. (TRG June 2026 update) [discussing errors in defendants’ names].) Accordingly, the motion is GRANTED as to On Track and Genardini and the action is dismissed against them.

Based upon this ruling, the Court vacates the June 30, 2026 OSC re Dismissal to Prosecute Timely hearing.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for On Track and Genardini shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.