Ables v. A. Ghazale Brothers, Inc.

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, F082670 Plaintiff and Appellant, (Super. Ct. No. BCV-15-100587) v.

A. GHAZALE BROTHERS, INC., et al., OPINION Defendants and Respondents.

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 Abou- Ghazale. 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.

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,1 section 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 2015.2 In 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. 2The original complaint named only A. Ghazale Brothers, Inc. and Joseph Abou- Ghazale as defendants. However, the complaint was amended on August 18, 2016, to name Central Freight as Doe 1.