Filed 6/23/26 Meinhardt v. Sunny Acre CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
EDGAR MEINHARDT et al., B343467
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. 20SMCV00492)
SUNNY ACRE LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Jr., Judge. Reversed and
remanded.
Law Offices of Ronald H. Freshman and Ronald H.
Freshman for Plaintiffs and Appellants.
Meylan Davitt Jain Arevian & Kim and Troy H. Slome for
Defendants and Respondents.
Edgar Meinhardt (Meinhardt), and a limited liability
company he controlled, sued their lenders and mortgage broker
involved in home loan foreclosure proceedings. Two weeks before
a scheduled trial date, the trial court denied Meinhardt’s ex parte
application for a continuance. Then, on the day trial was to
begin, the trial court dismissed the lawsuit because Meinhardt
made joint pretrial disclosures the day before trial, rather than
the earlier time provided by the pertinent local court rules. We
principally consider whether the trial court’s dismissal of the
action for untimely submission of pretrial disclosures was an
abuse of the court’s discretion.
I. BACKGROUND
In 2013, Meinhardt and his partner purchased an 11-acre,
ocean-view home in Malibu, California. Title to the property was
vested in Corp.Realty USA, LLC (CRU), a Delaware limited
liability company controlled by Meinhardt as its sole managing
member.
Six years later, CRU entered into a mortgage refinance
agreement for $3.5 million with two California limited liability
companies: Sunny Acre LLC (Sunny Acre) and Tsasu LLC
(Tsasu); the mortgage broker for the transaction was Universal
Commercial Capital (UCC), a Nevada corporation with its
principal office in Huntington Beach. The loan was signed at the
title company’s office in Orange and a prefunding meeting
between the parties was held in Burbank.
In December 2019, less than six months after the loan
closed, Sunny Acre and Tsasu filed a notice of default. Three
months later, in March 2020, Sunny Acre and Tsasu filed a notice
of trustee’s sale. Later that same month, in an effort to prevent
2
the foreclosure, Meinhardt sued Sunny Acre, Tsasu, UCC, and its
managing partner Eric Tran (Tran).
In October 2020, following the foreclosure sale of the
property, Meinhardt, joined by CRU, filed a 16-count first
amended complaint (the operative pleading) alleging defendants
misled Meinhardt about the terms of the loan and then
wrongfully foreclosed on his home. Leonard Hsu, Jr. and Susan
Lee, respectively the principals of Tsasu and Sunny Acre, were
later added as defendants to the first amended complaint (we
collectively refer to Hsu, Lee, Sunny Acre, Tsasu, UCC, and Tran,
as defendants).
A. CRU’s Representation and Dismissal
When the first amended complaint was filed, Meinhardt
and CRU (collectively, plaintiffs) were each represented by Mani
Shiek of Sheik Law, Inc. (Shiek). In June 2021, plaintiffs filed a
substitution of attorney form, naming Zachary Schorr of Schorr
Law (Schorr) as Shiek’s successor. Eight months later, in
February 2022, Meinhardt elected to proceed as a self-
represented litigant and filed a substitution of attorney form
replacing Schorr with himself.
Later that same month, Schorr moved to be relieved as
CRU’s counsel due to a breach of the parties’ retainer agreement.
Although CRU consented to the withdrawal, Schorr sought court
approval because CRU as a corporate entity could not represent
itself and it had not yet found a successor attorney.
On March 3, 2022, the trial court granted Schorr’s motion
and continued the trial date. That same day, Susan Murphy
(Murphy) of Gomez Law filed and served a notice of appearance
on behalf of both plaintiffs and appeared at the hearing. A few
3
days later, Murphy filed a substitution of attorney naming her as
Meinhardt’s attorney. Although the record does not show
Murphy filed a substitution of attorney naming her or her firm as
Schorr’s replacement as counsel for CRU, she represented in
court filings that she was counsel for both plaintiffs.
Approximately six months after beginning her
representation of plaintiffs, Murphy stopped acting as their
attorney. In October 2022, she filed a substitution of attorney
form in which she withdrew from her representation of
Meinhardt, who would once again represent himself. At the time,
no substitution of attorney form was filed by Murphy in
connection with the representation of CRU.
Immediately following Murphy’s withdrawal from the case,
defendants continued to serve court filings on her as CRU’s
attorney. Defendants also served written discovery requests on
Murphy, as counsel for both Meinhardt and CRU, as well as on
Meinhardt as a self-represented litigant.
In November 2022, Murphy emailed defense counsel and
explained that she and her firm “have subbed out of this case”
and that she and her firm “only substituted in for [Meinhardt],
not for [CRU].” The following month, after being served with
more discovery-related documents, Murphy emailed defense
counsel again: “We are not in this case anymore. Please stop
serving us.” Notwithstanding these requests, defendants
continued to serve Murphy as CRU’s counsel for the remainder of
2022.
In December 2022, the parties stipulated to, and the trial
court ordered, another continuance of the trial date. The
stipulation was signed by Meinhardt on behalf of both plaintiffs
and stated both plaintiffs were proceeding “In Pro Per.” By early
4
2023, defendants had amended their proof of service so that it
deleted Murphy. Instead of serving documents on Murphy,
defendants served documents directly on plaintiffs, each of whom
were identified on the amended proof of service as proceeding “In
Pro Per.” Between January 1, 2023, and September 8, 2023, the
record does not show Meinhardt, either for himself or on behalf of
CRU, ever complained to the trial court or to defendants about a
lack of notice due to defendants’ amendment of the proof of
service they were using.
In July 2023, at a status conference on trial readiness at
which Meinhardt and counsel for defendants appeared,1 the trial
court ordered an “appearance by lead counsel for [CRU]” at a
continued status conference to be held the following month. In
its minute order, the court stated, “[i]f no appearance by lead
counsel [at the continued status conference], cause must be
shown as to why [CRU] should not be dismissed.” In their notice
of ruling, defendants described the court’s order as follows:
“[CRU] was ordered to be formally represented by legal counsel
before the Status Conference on August 9, 2023, and if [it] fail[s]
to comply with the Court’s order, the Court will issue an [Order
to Show Cause] Re Dismissal of plaintiff [CRU] from this action
at the hearing on August 9, 2023.”
At the continued status conference the following month,
only Meinhardt appeared for plaintiffs. At the conference,
defendants argued, without contradiction or objection by
Meinhardt, that progress on discovery had been slowed by the
absence of any counsel for CRU. The trial court issued an order
1
An attorney “specially appear[ed]” for Murphy at the status
conference.
5
to show cause (OSC) why the amended complaint of CRU should
not be stricken and set a hearing on the OSC for the following
month. In their notice of ruling, defendants stated the OSC was
issued in response to CRU’s “failure to be formally represented by
legal counsel.”
On September 8, 2023, the trial court found “no cause has
been shown why [the] complaint as to [CRU] should not be
dismissed” and ordered the first amended complaint dismissed as
to CRU.2 CRU did not notice an appeal from its dismissal.
Three days after the hearing on the OSC, the parties
submitted a joint discovery plan to the trial court. In that
document, Meinhardt described himself as the “authorized
representative” for CRU and asserted CRU had a “lead trial
attorney” who was “in process to be substituted” and was
“conforming substitution to appear in the action as counsel of
record.” Meinhardt did not identify the attorney who was
purportedly in the process of substituting in as CRU’s trial
counsel and did not state Murphy was still CRU’s counsel of
record.
B. Meinhardt’s Motion to Vacate CRU’s Dismissal
Five months after CRU’s dismissal, in February 2024,
Meinhardt moved to join CRU as a necessary and indispensable
party because he had recently secured new representation for the
entity.
2
The record does not include a reporter’s transcript or a
settled statement of the September 8, 2023, hearing on the OSC
regarding CRU’s dismissal.
6
In support of his motion, Meinhardt recounted the history
of CRU’s representation in the case. Meinhardt explained that at
the time of CRU’s dismissal, Murphy had “stopped appearing in
the matter on behalf of CRU,” but nonetheless remained attorney
of record as she “did not formally withdraw” and, accordingly,
“remained [CRU’s] attorney of record at the time of CRU’s
dismissal.” Meinhardt argued that rejoining CRU would promote
judicial efficiency and not cause any delay.
Defendants opposed the motion to rejoin CRU as a plaintiff.
They argued the motion was “improper and untimely” because
CRU did not timely move for reconsideration or notice an appeal
after its dismissal.
The trial court denied Meinhardt’s motion to join CRU,
finding it sought “to undo the September 8, 2023[,] Order by in
effect asking the Court to reconsider that Order in light of a new
fact . . . that CRU now is represented by counsel . . . . This motion
for reconsideration, however, does not comply with Code of Civil
Procedure Sec[tion] 1008 and must be denied for that reason.”3
In April 2024, two months before trial, the parties
submitted a stipulation and proposed order to continue the trial
and discovery cut-off dates for 90 days to complete discovery. The
proposed extension was based, in part, on defense counsel’s
inability to present his clients for deposition until “mid-to-late
April 2024, at the earliest” due to conflicts with other cases. The
3
Section 1008 requires a party moving for reconsideration of
an order based on new facts to do so “within 10 days after
service” of the challenged order. (Code Civ. Proc., § 1008, subd.
(a).) Undesignated statutory references that follow are to the
Code of Civil Procedure.
7
trial court rejected the stipulation to continue trial because
“[i]nsufficient good cause [was] shown.”
In May 2024, CRU, now represented by new counsel, moved
to vacate the September 2023 order dismissing it from the case;
the motion was brought solely pursuant to section 473,
subdivision (d).4 CRU maintained the order dismissing it from
the case was void because, although Murphy informed Meinhardt
in the autumn of 2022 of her intent to withdraw as CRU’s
counsel, no substitution of attorney or application to withdraw
was filed with the court; as a result, Murphy remained CRU’s
counsel of record at the time of the dismissal and should have
been provided notice of the proceedings leading to her client’s
dismissal but was not. Among the exhibits supporting the motion
was a substitution of attorney form signed by Murphy on April
22, 2024, consenting to Allen West of West & Associates (West)
replacing her as CRU’s counsel.
Defendants opposed the motion to vacate. They argued,
among other things, that Murphy and her firm never formally
substituted in as CRU’s counsel and that the motion to vacate
was an untimely motion for reconsideration of the September
2023 order of dismissal.
On May 16, 2024, the day before the Final Status
Conference, Meinhardt applied ex parte to have the motion to
vacate heard on shortened time and to continue the trial date for
4
That section, in pertinent part, provides: “The
court . . . may, on motion of either party after notice to the other
party, set aside any void judgment or order.”
8
six months in order to take the depositions of three defendants.5
With regard to the continuance, Meinhardt argued he had been
diligent in conducting discovery but had been “outmaneuvered”
by defendants’ delaying tactics and was caught “flat footed” by
the trial court’s refusal to continue the trial as requested by the
parties a month earlier.
The following day, the trial court denied the ex parte
application to continue the trial. There is no reporter’s transcript
or settled statement memorializing the hearing on the
application. A minute order issued in connection with the
hearing states Meinhardt’s application did not “demonstrate
exigent circumstances sufficient to justify ex parte relief. In
particular, there [wa]s no sufficient explanation why the
application was brought today, the date of the Final Status
[Conference], and not earlier.”
The court held a final status conference that same day.
(There is, of course, no reporter’s transcript or settled statement
memorializing this conference too.) Because the parties had not
complied with the rules regarding the preparation and filing of
joint trial documents, the court issued an OSC why the case
should not be dismissed. The hearing on the OSC was
calendared for the same day trial was set to begin.
On May 31, 2024, defendants filed their exhibit and
witness lists, proposed jury instructions, short statement of the
case, and their trial brief. On that same day, defendants also
filed their response to the OSC regarding the case’s dismissal.
5
Although CRU had been dismissed from the case eight
months earlier, the ex parte application was styled as being
brought by both Meinhardt and CRU as “plaintiffs.”
9
Defendants asserted Meinhardt failed to meet and confer with
them about the preparation of any the required joint trial
documents or provide them with any such documents. Because
Meinhardt had by then filed no trial documents, defendants
requested the action be dismissed.
On the evening of June 3, 2024, Meinhardt filed his exhibit
and witness lists, proposed jury instructions, short statement of
the case, and trial brief. Earlier that same day, he also filed his
response to the OSC regarding the case’s dismissal. Meinhardt
argued dismissal was not warranted because defendants made no
attempt to cooperate with preparation of joint trial documents
until May 29, 2024, and then ignored his attempts to
communicate with them about those documents between May 29
and May 31, 2024. He argued further that the local rules
regarding pretrial submissions applied equally to all parties and
their counsel.
On June 4, 2024, the day set for trial, the trial court
considered the motion to vacate the earlier dismissal of CRU as a
party and the OSC regarding the case’s dismissal for failure to
comply with trial preparation rules. There is no reporter’s
transcript or settled statement for these proceedings either. A
minute order indicates the court adopted its four-page tentative
ruling denying the motion to vacate CRU’s dismissal because the
order dismissing CRU was not void but voidable—a conclusion
that rendered the motion untimely. The court also found that
even if the motion to vacate had been timely, Meinhardt could not
prevail because the facts established there was “no [formal]
substitution of attorney [form] appointing [Murphy or her firm]
as counsel for CRU.” The court’s minute order also includes a
one-sentence ruling granting dismissal of the action for
10
Meinhardt’s untimely pretrial documents: “The Court receives
and reviews Plaintiff’s response to the order to show cause and
finds that no cause has been shown as to why the case should not
be dismissed.”
In October 2024, after months of litigation over its wording,
a judgment of dismissal was entered. The judgment was devoid
of any reference to or discussion of attorney fees. Meinhardt and
CRU noticed an appeal from the orders entered on June 4, 2024,
and the judgment of dismissal. Following entry of the judgment
of dismissal, defendants moved for their attorney fees based on
an attorney fee provision in the 2019 promissory note executed by
CRU and on their status as the “prevailing party.” The trial
court granted the motion, finding defendants were the prevailing
party and were “entitled to fees relating to all claims asserted in
this action, as they all are based on common or interrelated
issues.” The court awarded $84,600 in fees. Plaintiffs did not
notice an appeal from the post-judgment attorney fees order.6
II. DISCUSSION
The trial court abused its discretion when it dismissed the
entire case following Meinhardt’s failure to timely file the pretrial
documents in question. Under settled law, the sanction imposed
by the trial court was impermissibly disproportionate to the
6
In an amended judgment, entered on July 21, 2025, (i.e.,
after the appeal of the judgment of dismissal was already
pending in this court), the trial court deleted references to
defendants as the prevailing party and to their entitlement to an
award of attorney fees. Neither party noticed an appeal from this
amended judgment.
11
conduct it punished, especially in view of the fact that the
documents were filed before the start of trial—albeit later than
they should have been. We will therefore reverse the judgment of
dismissal and remand for further proceedings.
Because we are reversing the judgment of dismissal and
remanding for further proceedings, the award of attorney fees
necessarily falls. We will briefly opine on the issues of CRU’s
motion to vacate the September 8, 2023, order dismissing it from
the action and Meinhardt’s ex parte application to continue the
trial date because those issues may affect what further
proceedings are—or are not—required on remand.
A. Dismissal of the Case for Untimely Filing Pretrial
Documents Was an Abuse of Discretion
The local rules for the Los Angeles County Superior Court
require litigants to serve and file the following items “[a]t least
five days prior to” the final status conference: “lists of pre-marked
exhibits to be used at trial . . . , jury instruction requests, trial
witness lists, and a proposed short statement of the case to be
read to the jury panel explaining the case.” (Super. Ct. L.A.
County, Local Rules, rule 3.25(f)(1).) The local rules state that
“[f]ailure to exchange and file these items may result in [a party]
not being able to call witnesses, present exhibits at trial, or have
a jury trial.” (Ibid.)
The Code of Civil Procedure generally gives trial courts
authority to “strike out all or any part of any pleading of that
party, or, dismiss the action or proceeding” when a party does not
comply with local court rules. (§ 575.2, subd. (a).) But that
general grant of authority is just part of the story. As cases
12
decided by our Supreme Court and other reviewing courts
explain, the statutory authorization is subject to constraints.
In Elkins v. Superior Court (2007) 41 Cal.4th 1337, our
Supreme Court cautioned that “courts ordinarily should avoid
treating a curable violation of local procedural rules as the basis
for crippling a litigant’s ability to present his or her case. . . . [I]n
the absence of a demonstrated history of litigation abuse, ‘[a]n
order based upon a curable procedural defect [including failure to
file a statement required by local rule], which effectively results
in a judgment against a party, is an abuse of discretion.’
[Citation.]” (Id. at 1364; see also id. at 1363-1364 [trial court’s
evidentiary sanction, for failing to file a declaration prior to trial
establishing the admissibility of the evidence, was
disproportionate, inconsistent with the policy favoring deciding
cases on their merits, and an abuse of discretion]; Garcia v.
McCutchen (1997) 16 Cal.4th 469, 481-482 [a court may not
dismiss an action for noncompliance with local rules if the
noncompliance is the responsibility of counsel, not the litigant].)
While it is undisputed Meinhardt’s mandatory pretrial
submissions were not filed in a timely manner, it is also
undisputed they were filed before the hearing on the OSC and
before the start of trial. That counsels against imposition of the
ultimate sanction of dismissal. (Elkins, supra, 41 Cal.4th at 1364
[“‘“Rigid rule following is not always consistent with a court’s
function to see that justice is done. Cognizant of the strong policy
favoring the disposition of cases on their merits [citations], judges
usually consider whether to exercise their discretion in applying
local court rules and frequently consider documents which have
been untimely filed”’”]; accord, Gonzalez v. Munoz (2007) 156
Cal.App.4th 413, 423 [“Court procedures, however well-
13
intentioned, should not be imposed at the expense of the parties’
basic rights to have their matters fairly adjudicated . . .”].) Also
counseling against dismissal is what the appellate record reveals
about the overall litigation proceedings: there is no indication
Meinhardt previously failed to comply with local rules, nor is
there an indication that the trial court considered a less
draconian sanction than dismissal. (Elkins, supra, at 1365
[imposing a sanction under local rules “in a mechanical fashion
without considering alternative measures or a lesser sanction” is
improper].)
As analogous precedent demonstrates, ordering dismissal
in these circumstances was an abuse of discretion. (In re Harley
C. (2019) 37 Cal.App.5th 494, 510 [exclusion of all of the mother’s
evidence for failure to file the joint pretrial statement required by
local rule was a disproportionate sanction]; see also Link v. Cater
(1998) 60 Cal.App.4th 1315, 1326 [abuse of discretion to dismiss
case when the plaintiff had no history of noncompliance, had
been prosecuting his case diligently, and there was no reason to
believe a less severe sanction would not be effective]; Wantuch v.
Davis (1995) 32 Cal.App.4th 786, 795 [“Preventing parties from
presenting their cases on the merits is a drastic measure;
terminating sanctions should only be ordered when there has
been previous noncompliance with a rule or order and it appears
a less severe sanction would not be effective”].) We reach that
conclusion even in the absence of a reporter’s transcript or settled
statement of the hearing where dismissal was ordered because,
short of Meinhardt’s consent to dismissal (which there is no basis
to infer on this record), we can fathom no reason that would
justify the ultimate sanction of dismissal of the entire action for
the late filing (just before trial and three days after defendants
14
filed theirs) of the pretrial documents. (See generally Howard v.
Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443 [“even
if there is no indication of the trial court’s rationale for
dismissing an action, the court’s decision will be upheld on appeal
if reasonable justification for it can be found”], italics added.)
B. Vacatur of the Attorney Fees Award and Issues
Affecting the Proceedings on Remand
The trial court awarded defendants attorney fees as
prevailing parties after it dismissed Meinhardt’s case. Because
we have reversed that dismissal, the attorney fees award must be
vacated too. (See, e.g., Bevis v. Terrace View Partners, LP (2019)
33 Cal.App.5th 230, 263 [“Our reversal of the judgment also
necessarily compels the reversal of the award of attorney fees and
costs to plaintiffs based on the judgment”].)
Two issues remain that require brief discussion because
they impact what proceedings may be required on remand: (1)
whether the trial court erred in denying the motion to vacate the
order of dismissal as to CRU, and (2) whether the trial court’s
denial of Meinhardt’s ex parte application to continue the trial for
six months to depose three witnesses was an abuse of discretion.
1. Motion to vacate
Under section 473, subdivision (d), a trial court “may, on
motion of either party after notice to the other party, set aside
any void judgment or order.” A judgment is void if the trial court
lacked jurisdiction in a fundamental sense, as where it lacked
subject matter jurisdiction or lacked personal jurisdiction over
the defendant. (Kabran v. Sharp Memorial Hospital (2017) 2
Cal.5th 330, 339 [“‘“an act beyond a court’s jurisdiction in the
15
fundamental sense is null and void” ab initio’”]; accord, People v.
American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660
[“‘Lack of jurisdiction in its most fundamental or strict sense
means an entire absence of power to hear or determine the case,
an absence of authority over the subject matter or the parties’”].)
“When a court has fundamental jurisdiction, but acts in excess of
its jurisdiction, its act or judgment is merely voidable.”
(American Contractors, supra, at 661; accord, Schrage v. Schrage
(2021) 69 Cal.App.5th 126, 138.) “[A] judgment that is merely
voidable is not subject to section 473, subdivision (d).” (W.
Bradley Electric, Inc. v. Mitchell Engineering (2024) 100
Cal.App.5th 1, 13; accord, First American Title Ins. Co. v.
Banerjee (2022) 87 Cal.App.5th 37, 44; Lee v. An (2008) 168
Cal.App.4th 558, 565-566.)
The September 8, 2023, order dismissing CRU is not void
for a lack of fundamental jurisdiction. The trial court had subject
matter jurisdiction over the action because the property and
negotiations over the refinance loan transaction took place in
California. In addition, the court had personal jurisdiction over
the parties because they were either residents of California
and/or had their principal offices in the state. In its motion to
vacate, CRU did not argue to the contrary. Because the dismissal
of CRU was not void, plaintiffs were not entitled to relief under
section 473, subdivision (d)—the sole ground asserted in their
moving papers.7 (Lee, supra, 168 Cal.App.4th at 565-566;
7
Relying on Epley v. Califro (1958) 49 Cal.2d 849, plaintiffs
argue that the September 8, 2023, order dismissing CRU was
void, not merely voidable, because no notice was provided to
Murphy, CRU’s one-time counsel. Even assuming that a lack of
notice to counsel of record could give rise to a void, rather than
16
Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86,
99.)
2. Request to continue trial
Rule 3.1332 of the California Rules of Court (rule 3.1332)
governs motions for continuance of a trial. It cautions: “To
ensure the prompt disposition of civil cases, the dates assigned
for a trial are firm. All parties and their counsel must regard the
date set for trial as certain.” (Rule 3.1332(a).) Trial continuances
are “disfavored,” and “[t]he court may grant a continuance only
on an affirmative showing of good cause requiring the
continuance.” (Rule 3.1332(c).)
“A trial court has great discretion in the disposition of an
application for a continuance. Absent a clear abuse of discretion,
the court’s determination will not be disturbed.” (Estate of Smith
(1973) 9 Cal.3d 74, 81; accord, Thurman v. Bayshore Transit
Management, Inc. (2012) 203 Cal.App.4th 1112, 1126,
disapproved on another ground in ZB, N.A. v. Superior Court
voidable, order, the absence of a formal substitution of attorney
form for Murphy as counsel for CRU is not determinative. (See,
e.g., Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1311; Crocker
National Bank v. O’Donnell (1981) 115 Cal.App.3d 264, 268-269;
In re Marriage of Warner (1974) 38 Cal.App.3d 714, 720.) For the
nine months preceding the September 8, 2023, order dismissing
CRU, defendants and the trial court did not rely on the
formalities of plaintiffs’ attorney substitution forms. Instead,
they relied on representations by plaintiffs and their former
counsel about whether they were represented by Murphy. In
fact, Meinhardt only raised the issue of substitution many
months after CRU was dismissed and only after being faced with
a dispositive motion based on CRU’s absence as a party.
17
(2019) 8 Cal.5th 175, 196, fn. 8; Reales Investment, LLC v.
Johnson (2020) 55 Cal.App.5th 463, 468.) “‘“The burden is on the
party complaining to establish an abuse of discretion.”’”
(Mahoney v. Southland Mental Health Associates Medical Group
(1990) 223 Cal.App.3d 167, 170, quoting Denham v. Superior
Court (1970) 2 Cal.3d 557, 566.)
Plaintiffs contend the trial court erred in denying
Meinhardt’s ex parte application for a continuance because the
trial court’s minute order does not contain include any express
rule 3.1332 finding.8 Rule 3.1332, however, does not require a
trial court to identify on the record an exhaustive list of all
circumstances and factors it found determinative. (McDermott
Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083,
1103 [“We presume the trial court knew and properly applied the
law absent evidence to the contrary”].) Moreover, we have no
reporter’s transcript or settled statement memorializing the
proceedings on Meinhardt’s continuance application, so we do not
know if the trial court made findings on the record—nor, more
generally, do we have an adequate basis to fairly evaluate the
propriety of the trial court’s discretionary determination.
(Denham, supra, 2 Cal.3d at 564 [“‘A judgment or order of the
8
Meinhardt’s May 2024 application for a continuance was
filed on the eve of the Final Status Conference and less than
three weeks before the trial’s scheduled start date. At that time,
the case had been pending for more than four years and the trial
court had continued the trial date twice before at the parties’
request. The trial court had also denied, the month prior, a joint
request for a three-month continuance of trial, and Meinhardt’s
May 2024 application sought twice that amount of time (six
months) to take three depositions.
18
lower court is presumed correct. All intendments and
presumptions are indulged to support it on matters as to which
the record is silent, and error must be affirmatively shown. This
is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error’”].)
DISPOSITION
The judgment of dismissal is reversed and the associated
award of attorney fees is vacated. The cause is remanded to the
trial court for further proceedings consistent with this opinion.
The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
HOFFSTADT, P. J.
MOOR, J.
19