Filed 7/31/26 Lopez-Farooq v. Superior Court CA2/1
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
MYLENE LOPEZ-FAROOQ, et B330207
al.,
(Los Angeles County
Petitioners, Super. Ct. No. PC058000)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
BANK OF AMERICA, N.A., et
al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate; petition for
extraordinary writ. Stephen P. Pfahler, Judge. Petition granted
in part and denied in part.
Mylene Lopez-Farooq and Ibrahim Farooq, in pro. per., for
Petitioners.
No appearance for Respondent.
Stinson and Elizabeth C. Farrell for Real Parties in
Interest Bank of America, N.A., Bank of America Home Loans,
Inc., Bank of America Home Loans Servicing, LP; Countrywide
Home Loans Servicing, LP, Countrywide Home Loans, Inc.,
ReconTrust Company, N.A., and Bank of America Corporation.
The Law Office of Seth P. Cox and Seth P. Cox for Real
Party in Interest Breckenridge Property Fund 2016, LLC.
_______________________________
Mylene Lopez-Farooq and Ibrahim Farooq (collectively
Lopez-Farooq) appeal from the trial court’s dismissal of their
action with prejudice for delay in prosecution. Lopez-Farooq
initiated the action in September 2017, seeking damages and an
injunction to prevent foreclosure of her residential real property
in Santa Clarita (the Property). In June 2022, the trial court
scheduled a March 2023 hearing on an order to show cause
regarding dismissal for delay in prosecution under Code of Civil
Procedure section 583.310 et seq. (the mandatory-dismissal
statutes). 1
After the March 2023 hearing, the trial court dismissed the
action with prejudice, concluding that the mandatory-dismissal
statutes required dismissal because Lopez-Farooq failed to bring
the action to trial within five years and six months. In the
alternative, the trial court exercised its discretion to dismiss the
action under section 583.410 et seq. (the discretionary-dismissal
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
statutes), which permit dismissal if an action is not brought to
trial within two years and the circumstances warrant dismissal.
The trial court did not sign its minute order dismissing the
action, and the record does not contain a signed dismissal order
or judgment. Although the unsigned dismissal minute order is
not appealable (Powell v. County of Orange (2011) 197
Cal.App.4th 1573, 1578-1579 (Powell)), we exercise our discretion
to treat Lopez-Farooq’s appeal from the order as a petition for a
writ of mandate (Elijahjuan v. Superior Court (2012) 210
Cal.App.4th 15, 19 & fn. 3 (Elijahjuan)). 2
Because Lopez-Farooq fails to meet her burden to show
that the trial court abused its discretion by dismissing the action
under the discretionary-dismissal statutes, we deny her petition
2 After we issued a prior opinion in this appeal, we granted
Lopez-Farooq’s petition for rehearing pursuant to Government
Code section 68081, vacated our prior opinion, and afforded the
parties an opportunity to submit supplemental briefs addressing
whether we should exercise our discretion to treat Lopez-Farooq’s
notice of appeal from the trial court’s March 29, 2023 minute
order dismissing the action for delay in prosecution as a petition
for a writ of mandate. Lopez-Farooq’s supplemental brief
requests that we exercise our discretion to treat the appeal as a
writ petition if we conclude, as we do below, the record does not
contain an appealable order or judgment of dismissal for delay in
prosecution. No party has opposed that request.
Our order granting rehearing and authorizing
supplemental briefs on the issue specified above did not authorize
additional briefing on any other issue. To the extent Lopez-
Farooq’s supplemental brief presents new, unauthorized
arguments regarding the merits of the appeal, she forfeited those
arguments by failing to raise them in her opening brief. (See
Singh v. Lipworth (2005) 132 Cal.App.4th 40, 43, fn. 2 [appellant
forfeited arguments first raised in brief on rehearing].)
3
for a writ of mandate to set aside the dismissal. However,
because we agree with Lopez-Farooq that the dismissal statutes
required the dismissal to be without prejudice, we issue a writ of
mandate directing the trial court to modify the dismissal from a
dismissal with prejudice to a dismissal without prejudice.
BACKGROUND
We summarize the relevant facts regarding the order
identified in Lopez-Farooq’s notice of appeal, i.e., the trial court’s
order dismissing the action for delay in prosecution. Our
discussion will provide additional background regarding
separately appealable orders and judgments that Lopez-Farooq
did not identify in her notice of appeal and did not timely appeal
from.
A. In September 2017, Lopez-Farooq filed this action.
Between February 2019 and April 2021, the trial
court stayed the action due to a defendant’s
bankruptcy. Lopez-Farooq continued to litigate
during the stay and defied a bankruptcy court order.
On September 25, 2017, Lopez-Farooq filed the original
complaint in this action against Bank of America, N.A.; Ditech
Financial, LLC (Ditech) (alleged to have done business under the
name Green Tree Servicing, LLC); Clear Recon Corp.; and Doe
defendants. In addition to damages, the complaint sought an
injunction to prevent foreclosure of Lopez-Farooq’s residential
real property in Santa Clarita. In November 2018, Lopez-Farooq
filed a first amended complaint.
On February 20, 2019, having received notice that Ditech
had filed for Chapter 11 bankruptcy, the trial court ordered the
action stayed pending the resolution of the bankruptcy. The
4
court’s minute order stated that the court stayed the action “in its
entirety.”
As the trial court described in a subsequent minute order,
Lopez-Farooq “actively” and “aggressively” litigated the action
during the stay. Lopez-Farooq “engaged in heavy motion
practice, which included filing numerous ex parte applications,
motions, and oppositions to motions . . . .” The trial court heard
Lopez-Farooq’s requests for relief during the stay and granted
some of them.
On April 26, 2021, the trial court lifted the stay and
granted Ditech’s motion to dismiss Lopez-Farooq’s claims against
it. The trial court found that Ditech had obtained a bankruptcy
discharge as to Lopez-Farooq’s claims, and that Lopez-Farooq
had “willfully and deliberately refused to comply” with an order
of the bankruptcy court requiring her to dismiss her claims
against Ditech. The trial court later found that Lopez-Farooq’s
noncompliance with the bankruptcy court’s order was a willful
and deliberate tactic to delay the prosecution of this action.
B. In February 2022, Lopez-Farooq filed her operative
second amended complaint. In June 2022, the trial
court scheduled a March 2023 hearing on an order to
show cause regarding dismissal for delay in
prosecution.
In February 2022, Lopez-Farooq filed her operative second
amended complaint against the original defendants as well as
LoanCare, LLC; ServiceLink Title Company; JT Legal Group;
5
Green Tree Servicing, LLC; and Lawyers Title Co. 3 In August
2022, Lopez-Farooq amended the complaint to substitute
Breckenridge Property Fund 2016, LLC (Breckenridge), for Doe
no. 1.4
3 Without citation to the record, Lopez-Farooq’s opening
brief asserts that the trial court erred by allowing LoanCare to
intervene in the action (her reply brief does not address the
point). Although the opening brief refers to “rulings dated
September 23, 2020 and April 26, 2021,” neither of those rulings
is in the record. We conclude that Lopez-Farooq forfeited her
challenge to LoanCare’s intervention by failing to support it with
citations to the record and by failing to provide an adequate
record for our review. (WFG National Title Insurance Company
v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 (WFG
National) [“Rather than scour the record unguided, we may
decide that the appellant has forfeited a point urged on appeal
when it is not supported by accurate citations to the record”];
Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson) [“ ‘ “if the
record is inadequate for meaningful review, the appellant
defaults and the decision of the trial court should be
affirmed” ’ ”].)
4 In May 2022, Breckenridge purchased the Property at a
trustee’s sale. In September 2022, Breckenridge specially
appeared in the action and moved to expunge a lis pendens that
Lopez-Farooq had recorded. After the trial court dismissed the
action for delay in prosecution, the court granted Breckenridge’s
motion to expunge the lis pendens, then denied Lopez-Farooq’s
motion to vacate the expungement. We dismissed Lopez-Farooq’s
appeal from the trial court’s nonappealable order denying her
motion to vacate the expungement. (Lopez-Farooq v.
Breckenridge Property Fund 2016, LLC (June 4, 2025, B333940)
2025 WL 1584903 [nonpub. opn.], at pp. *1-*2, *5.)
6
In June 2022, the trial court scheduled a March 27, 2023
hearing on an order to show cause regarding dismissal for delay
in prosecution under section 583.360, subdivision (a). The court
found that the mandatory five-year deadline to bring the action
to trial under that statute (as extended six months by a COVID-
19 emergency rule) would expire on March 25, 2023, two days
before the scheduled hearing. 5
In November 2022, Lopez-Farooq filed a motion for leave to
file a third amended complaint. In January 2023, the trial court
heard and denied the motion. The trial court reasoned that
Lopez-Farooq “failed to comply with any of the requirements” of
rule 3.1324 of the California Rules of Court. The trial court
additionally reasoned: “[T]he current trial date of February 27,
2023, is only one month away. Allowing the amendment would
delay the trial, and lead to reopening discovery, which has closed,
thus there would be prejudice to the other parties if new
defendants, causes of action, and liability theories were added.”
5 “An action shall be dismissed by the court on its own
motion . . . , after notice to the parties, if the action is not brought
to trial within the time prescribed in this article.” (§ 583.360,
subd. (a).) “An action shall be brought to trial within five years
after the action is commenced against the defendant.”
(§ 583.310.) “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.” (Cal. Rules of Court, appen. I, emergency rule 10(a).)
7
C. The trial court dismissed the action for delay in
prosecution under the mandatory-dismissal statutes
and, in the alternative, under the discretionary-
dismissal statutes.
On March 27, 2023, the trial court held the scheduled
hearing on its order to show cause regarding dismissal for delay
in prosecution under the mandatory-dismissal statutes, and took
the matter under submission. The same day, Lopez-Farooq filed
a brief arguing (as she had argued in previous filings) that the
dismissal statutes required the trial court to exclude the time
during which the action was stayed due to Ditech’s bankruptcy
from the mandatory five-years-and-six-months period to bring
the action to trial.
On March 29, 2023, the trial court entered an unsigned
minute order dismissing the action with prejudice for delay in
prosecution. The trial court found (as it had found in June 2022)
that the mandatory five-years-and-six-months period to bring the
action to trial expired on March 25, 2023. The trial court
concluded that the bankruptcy stay did not toll the mandatory
period because: (1) it was unreasonable for Lopez-Farooq to
assume that Ditech’s bankruptcy stayed the action as to all
defendants; (2) Lopez-Farooq’s conduct in actively and
aggressively litigating the action during the stay contradicted her
asserted belief that the action was stayed; and (3) Lopez-Farooq
not only failed to act with reasonable diligence, but also engaged
in willful and deliberate tactics to delay prosecution, including by
defying the bankruptcy court order requiring her to dismiss
Ditech.
As an independent ground for dismissing the action for
delay in prosecution, the trial court found that dismissal was
8
warranted under the discretionary-dismissal statutes. The court
reasoned that Lopez-Farooq had failed to bring the action to trial,
or to obtain default judgments against non-responding
defendants, within five years and six months after the action
commenced, which was well beyond the three-year period to bring
the action to trial under section 583.420, subdivision (a)(2)(A). 6
On May 8, 2023, Lopez-Farooq filed a notice of appeal from
the trial court’s March 29, 2023 minute order dismissing the
action.
DISCUSSION
A. We lack jurisdiction to review appealable orders and
judgments that Lopez-Farooq did not identify in her
notice of appeal and did not timely appeal from.
“ ‘Our jurisdiction on appeal is limited in scope to the notice
of appeal and the judgment or order appealed from.’ ” (Faunce v.
Cate (2013) 222 Cal.App.4th 166, 170 (Faunce).) “We have no
jurisdiction over an order not mentioned in the notice of appeal.”
(Ibid.; see also Cal. Rules of Court, rule 8.100(a)(2) [“The notice is
sufficient if it identifies the particular judgment or order being
appealed”].)
Further, “[a]n untimely notice of appeal is an ‘absolute bar’
to appellate jurisdiction. [Citation.] We have no jurisdiction to
act on an untimely appeal and must dismiss the appeal without
6 The trial court’s order referred to the three-year period to
bring an action to trial under section 583.420, subdivision
(a)(2)(A). As discussed below, the controlling period to bring an
action to trial under the discretionary-dismissal statutes is two
years after the action commenced. (§ 583.420, subd. (a)(2)(B);
Cal. Rules of Court, rule 3.1340(a).)
9
reaching the merits.” (Faunce, supra, 222 Cal.App.4th at p. 170.)
The maximum time to file a notice of appeal from an appealable
order or judgment is 180 days after entry thereof. (Ibid.; Cal.
Rules of Court, rule 8.104(a)(1), (e).) If the appellant is served
with notice of entry of the judgment or order, the time to appeal
is shortened to 60 days after such service. (Cal. Rules of Court,
rule 8.104(a)(1)(A)-(B).)
Here, in April 2022, the trial court entered an appealable
order denying Lopez-Farooq’s motion for a preliminary injunction
barring sale of the Property. 7 (§ 904.1, subd. (a)(6) [order
“refusing to grant” injunction is appealable]; Faunce, supra, 222
Cal.App.4th at p. 170 [“An order denying a preliminary
injunction is an appealable order”].)
In June 2022, the trial court sustained LoanCare’s
demurrer to the second amended complaint without leave to
amend. In August 2022, the court entered an appealable
judgment dismissing LoanCare from the action. (Heshejin v.
Rostami (2020) 54 Cal.App.5th 984, 991 [“ ‘in a case involving
multiple parties, a judgment is final and appealable when it
leaves no issues to be determined as to one party’ ”].)
In August, October, and December 2022, the trial court
entered appealable orders granting motions to quash service of
summons filed by Bank of America (and related defendants),
ServiceLink, JT Legal Group, and Lawyers Title Company. 8
7 The trial court previously issued a preliminary injunction
barring the Property’s sale in November 2017 and dissolved that
injunction in October 2021.
8 In November 2022, Lopez-Farooq filed notices of appeal
from the orders granting the Bank of America defendants’ and
10
(§ 904.1, subd. (a)(3) [order granting motion to quash service of
summons is appealable]; Humphrey v. Bewley (2021) 69
Cal.App.5th 571, 577 [same].) In September 2022 and January
2023, the trial court entered judgments dismissing the Bank of
America Defendants, ServiceLink, and Lawyers Title Company
from the action based on its orders granting their motions to
quash service of summons.
On May 8, 2023, Lopez-Farooq filed her instant notice of
appeal, which identified no order or judgment other than the trial
court’s March 29, 2023 order dismissing the action for delay in
prosecution. In her appellate briefs, Lopez-Farooq additionally
challenges the separately appealable orders and judgments
discussed above.
Because the notice of appeal did not identify those
separately appealable orders and judgments, we lack jurisdiction
to review them. (See Faunce, supra, 222 Cal.App.4th at p. 170
[appellate court lacked jurisdiction to review order denying
preliminary injunction because notice of appeal identified only
judgment of dismissal after order sustaining demurrer];
Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 298, 304
[appellate court lacked jurisdiction to review 2008 order on
appeal from 2011 order]; Soldate v. Fidelity Nat. Financial, Inc.
(1998) 62 Cal.App.4th 1069, 1073-1074 [notice of appeal from
judgment awarding unspecified amount of attorney fees did not
confer appellate jurisdiction over subsequent appealable order
setting amount of fees].)
ServiceLink’s motions to quash service of summons. This court
dismissed the appeals due to Lopez-Farooq’s failure to procure a
record. (Cal. Rules of Court, rule 8.140(b).)
11
We lack jurisdiction to review those separately appealable
orders and judgments for the additional reason that the May 8,
2023, notice of appeal was untimely as to them. The notice was
filed more than 180 days after the appealable orders and
judgments entered in April, June, August, and October 2022. It
was filed more than 60 days after Lawyers Title Company served
Lopez-Farooq on January 20, 2023, with notice of entry of
judgment based on the December 2022 order granting its motion
to quash service of summons. For this additional reason, we lack
jurisdiction to review those orders and judgments. 9 (See Faunce,
supra, 222 Cal.App.4th at p. 170 [appellate court lacked
jurisdiction to review order denying preliminary injunction
because notice of appeal from subsequent judgment was untimely
as to the preliminary injunction order].)
Lopez-Farooq’s time to appeal from the August 2022 order
granting the Bank of America defendants’ motion to quash, or
9 Lopez-Farooq also argues that the clerk of the superior
court erroneously rejected multiple requests for default that she
filed between March 2022 and May 2022 (one year or more before
she filed her instant notice of appeal in May 2023). However, the
clerk’s denial of a request for entry of default is not appealable.
(Cf. First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th
956, 960-961 [“No appeal lies from the court clerk’s entry of
default; that entry is simply a ministerial act preceding the
actual default judgment”].) Lopez-Farooq did not file a timely
petition for a writ of mandate to compel the clerk to perform the
clerk’s alleged ministerial duty to enter the requested defaults.
(Cf. Todd v. Everett (1966) 247 Cal.App.2d 209, 211-212 [issuing
writ of mandate to compel superior court clerk to enter
defendant’s default].) We conclude that we lack jurisdiction to
review the clerk’s denial of Lopez-Farooq’s requests for default.
12
from the September 2022 judgment dismissing those defendants
based on that order, did not restart when the trial court’s March
2023 dismissal order purported to again dismiss some of those
defendants. (Eisenberg et al., Cal. Practice Guide: Civil Appeals
& Writs (The Rutter Group 2025) ¶ 3:5.5, p. 2 [“The outside time
limit to appeal . . . begins to run once a final appealable order or
judgment is entered. The time cannot be ‘restarted’ or extended
by entering a subsequent judgment or appealable order making
the same decision”]; see also Reyes v. Kruger (2020) 55
Cal.App.5th 58, 69-70.) In any event, the notice of appeal’s
failure to mention the prior order and judgment is fatal to our
jurisdiction to review them. (See Faunce, supra, 222 Cal.App.4th
at p. 170.)
B. The trial court’s unsigned minute order dismissing
the action for delay in prosecution is not appealable,
but we exercise our discretion to treat the appeal
therefrom as a petition for a writ of mandate.
“All dismissals ordered by the court shall be in the form 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 . . . .” (§ 581d.) Section 581d applies to
dismissals for delay in prosecution. (Powell, supra, 197
Cal.App.4th at p. 1578.) “A minute order that is not signed by
the trial court does not qualify as a judgment under section
581d.” (Id. at p. 1575; see also id. at pp. 1578-1579 [dismissing
appeal for lack of jurisdiction because trial court’s minute order
dismissing complaint for delay in prosecution was unsigned and
no signed dismissal order appeared in clerk’s transcript or
register of actions].)
13
Here, the record contains only one copy of the trial court’s
March 29, 2023 minute order dismissing the action for delay in
prosecution, which is unsigned. The register of actions in the
clerk’s transcript does not state that the trial court filed any
separate, signed order or judgment dismissing the action for
delay in prosecution. No party has submitted a signed dismissal
order or judgment to this court. 10
Without citing the record, Lopez-Farooq asserts that on
March 29, 2023, the trial court signed a formal order dismissing
the action for delay in prosecution only as to defendant Clear
Recon Corp. The record, however, contains no such order.
Thus, the record contains no appealable order or judgment
that would invest us with jurisdiction over Lopez-Farooq’s appeal
from the trial court’s dismissal of the action for delay in
prosecution. (See Powell, supra, 197 Cal.App.4th at pp. 1578-
1579.) However, “ ‘[a]n appellate court has discretion to treat a
purported appeal from a nonappealable order as a petition for
writ of mandate.’ ” (Elijahjuan, supra, 210 Cal.App.4th at p.
19 & fn. 3.) Appellate courts typically exercise that discretion
where “dismissal of the appeal in lieu of proceeding with
immediate writ review would be ‘unnecessarily dilatory and
circuitous.’ ” (Eisenberg et al., Cal. Practice Guide: Civil Appeals
10 Lopez-Farooq attached the unsigned dismissal minute
order to her civil case information statement. The clerk of this
court mailed Lopez-Farooq notice that her civil case information
statement was deficient for failure to attach a copy of a signed
judgment, and directed her to provide the court with a conformed
copy of the signed dismissal order or judgment within 15 days of
the notice date. Lopez-Farooq subsequently submitted a
duplicate civil case information statement, which the clerk of this
Division rejected for filing as duplicate.
14
& Writs (The Rutter Group 2025) ¶ 2:7.1, p. 3; see also In re
Marriage of Vryonis (1988) 202 Cal.App.3d 712, 714, fn. 1
(Vryonis).)
Here, if we dismissed the appeal, Lopez-Farooq could
obtain a signed dismissal order or judgment in the trial court,
appeal therefrom, and reraise the same issues she currently
raises regarding the dismissal for delay in prosecution. In the
interest of judicial economy, we reach those issues by treating her
appeal as a petition for a writ of mandate to set aside the
dismissal for delay in prosecution. (See Safaie v. Jacuzzi
Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160, 1169 [treating
appeal as petition for writ of mandate “to promote judicial
economy”]; Vryonis, supra, 202 Cal.App.3d at p. 714, fn. 1
[treating appeal as petition for writ of mandate because dismissal
would be “unnecessarily dilatory and circuitous”], disapproved on
another ground by Ceja v. Rudolph & Sletten, Inc. (2013) 56
Cal.4th 1113.)
C. Lopez-Farooq fails to show that the trial court erred
by dismissing the action for delay in prosecution.
The dismissal statutes, however, required the
dismissal to be without prejudice.
Lopez-Farooq argues that the trial court erred by
dismissing the action for delay in prosecution under the
mandatory-dismissal statutes. As discussed below, she does not
address the trial court’s dismissal under the discretionary-
dismissal statutes, except in passing in her reply brief. She also
argues that the trial court erred by ordering the dismissal to be
with prejudice.
We conclude that Lopez-Farooq fails to meet her burden to
show that the trial court abused its discretion by dismissing the
15
action for delay in prosecution under the discretionary-dismissal
statutes. We agree, however, that the dismissal statutes
required the dismissal to be without prejudice.
1. Lopez-Farooq fails to meet her burden to show
that the trial court abused its discretion by
ordering dismissal under the discretionary-
dismissal statutes.
“The court may in its discretion dismiss an action for delay
in prosecution pursuant to this article on its own motion . . . if to
do so appears to the court appropriate under the circumstances of
the case.” (§ 583.410, subd. (a).) “The court may not dismiss an
action pursuant to this article for delay in prosecution except
after one of the following conditions has occurred: [¶] . . . [¶] The
action is not brought to trial within the following times: [¶] (A)
Three years after the action is commenced against the defendant
unless otherwise prescribed by rule under subparagraph (B). [¶]
(B) Two years after the action is commenced against the
defendant if the Judicial Council by rule . . . so prescribes . . . .”
(§ 583.420, subd. (a)(2), italics added.)
The Judicial Council prescribed such a rule, which
provides: “The court on its own motion . . . may dismiss an action
under Code of Civil Procedure sections 583.410-583.430 for delay
in prosecution if the action has not been brought to trial or
conditionally settled within two years after the action was
commenced against the defendant.” (Cal. Rules of Court, rule
3.1340(a).) Because that rule prescribes a two-year period, as
authorized by section 583.410, subdivision (a)(2)(B), “the
16
controlling period is two years.” 11 (Younger & Bradley, Younger
on Cal. Motions (2d ed. 2026) § 10:26; accord, Franklin Capital
Corp. v. Wilson (2007) 148 Cal.App.4th 187, 214, fn. 30
(Franklin).)
“ ‘ “The burden is on the party complaining to establish an
abuse of discretion” ’ ” in a trial court’s discretionary dismissal for
delay in prosecution. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331
(Blank).) “ ‘ “[U]nless a clear case of abuse is shown and unless
there has been a miscarriage of justice a reviewing court will not
substitute its opinion and thereby divest the trial court of its
discretionary power.” ’ ” (Ibid.; accord, Van Keulen v. Cathay
Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131 (Van
Keulen).)
Here, Lopez-Farooq’s opening brief does not mention
section 583.410 or 583.420. It does not address the trial court’s
exercise of its discretion to dismiss the action under those
statutes, much less argue that the court abused its discretion in
evaluating the relevant considerations.12
11 The COVID-19 emergency rule that extended the five-
year period to bring an action to trial under the mandatory-
dismissal statutes by six months did not extend the two-year
period to bring an action to trial under the discretionary-
dismissal statutes. (Cal. Rules of Court, appen. I, Emergency
Rules Related to COVID-19, rule 10.)
12 In exercising its discretion to dismiss an action for delay
in prosecution, “the court must consider all matters relevant to a
proper determination of the motion, including: [¶] . . . [¶] (4) The
diligence of the parties in pursuing discovery or other pretrial
proceedings, including any extraordinary relief sought by either
party; [¶] . . . [¶] (7) The nature of any extensions of time or other
17
We conclude that by failing to present any reasoned
argument regarding the trial court’s discretionary dismissal
under sections 583.410 and 583.420, Lopez-Farooq forfeited her
argument that the trial court erred by dismissing the action for
delay in prosecution. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721
(Lee) [“ ‘ “When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to
authority, we treat the point as [forfeited]” ’ ”].) “ ‘[An appellant’s
burden] requires more than simply stating a bare assertion that
the judgment, or part of it, is erroneous and leaving it to the
appellate court to figure out why; it is not the appellate court’s
role to construct theories or arguments that would undermine the
judgment . . . .’ ” (Ibid.)
Lopez-Farooq’s reply brief addresses the trial court’s
discretionary dismissal for the first time, in passing. Specifically,
the reply brief asserts that the trial court’s analysis of section
583.420 erroneously failed to exclude the time during which the
action was stayed due to Ditech’s bankruptcy from the time in
which Lopez-Farooq was required to bring the action to trial.
delay attributable to either party; [¶] . . . [¶] (9) Whether the
interests of justice are best served by dismissal or trial of the
case; and [¶] (10) Any other fact or circumstance relevant to a fair
determination of the issue.” (Cal. Rules of Court, rule 3.1342(e).)
“ ‘The competing considerations to be evaluated are the policies of
discouraging stale claims and compelling reasonable diligence
balanced against the strong public policy which seeks to dispose
of litigation on the merits rather than on procedural grounds.’
[Citation.] ‘However, it is now well established that the policy [of
preferring to dispose litigation on the merits] only comes into
play when a plaintiff makes a showing of some excusable delay.’ ”
(Van Keulen, supra, 162 Cal.App.4th at p. 131.)
18
(See § 583.420, subd. (b) [time to bring action to trial shall be
computed in same manner as comparable time is computed under
mandatory-dismissal statutes]; § 583.340, subd. (b) [“In
computing the time within which an action must be brought to
trial pursuant to [the mandatory-dismissal statutes], there shall
be excluded the time during which any of the following conditions
existed: [¶] . . . [¶] Prosecution or trial of the action was stayed or
enjoined”].)
“New arguments may not be raised for the first time in an
appellant’s reply brief.” (High Sierra Rural Alliance v. County of
Plumas (2018) 29 Cal.App.5th 102, 111, fn. 2.) In any event, the
reply brief fails to demonstrate that the trial court abused its
discretion. Even assuming, arguendo, that the law required the
trial court to exclude all time during the bankruptcy stay from
the two-year period to bring the action to trial, that period
expired well before the trial court exercised its discretion to
dismiss the action.
The action was pending for 513 days between Lopez-
Farooq’s filing of her original complaint on September 25, 2017,
and the trial court’s ordering the bankruptcy stay on February
20, 2019. The action was pending for an additional 702 days
between the trial court’s lifting the stay on April 26, 2021, and
dismissing the action on March 29, 2023. Thus, even
disregarding all time during the bankruptcy stay, the trial court
dismissed the action after Lopez-Farooq failed to bring it to trial
within 1,215 days, or three years, three months, and 28 days.
Because the two-year period expired well before then, the trial
court had discretion to dismiss the action for delay in prosecution.
(§ 583.420, subd. (a)(2); Cal. Rules of Court, rule 3.1340(a).) As
19
discussed, Lopez-Farooq forfeited any challenge to the manner in
which the trial court exercised its discretion. 13
Because Lopez-Farooq failed to meet her burden to show a
“ ‘ “clear case of abuse” ’ ” of the trial court’s discretion (Blank,
supra, 39 Cal.3d at p. 331), we will deny her petition for a writ of
mandate to set aside the trial court’s dismissal of the action for
delay in prosecution. For the reasons discussed below, however,
we will issue a writ directing the trial court to modify the
dismissal from a dismissal with prejudice to a dismissal without
prejudice.
2. The dismissal statutes required the dismissal to be
without prejudice.
Lopez-Farooq argues that the trial court erred by ordering
the dismissal for delay in prosecution to be with prejudice, rather
than without prejudice. We agree.
13 Without addressing the discretionary-dismissal statutes,
Lopez-Farooq argues that the trial court violated her due process
rights by dismissing the action on its own motion, allegedly
without notice and an opportunity to be heard. However, she
does not address the trial court’s June 2022 order to show cause
regarding dismissal for delay in prosecution; the March 27, 2023,
hearing thereon; or Lopez-Farooq’s brief filed the same day.
Moreover, the cases she cites did not contain the language that
she attributes to them and did not address dismissal or due
process. (Government Employees Ins. Co. v. Superior Court
(2000) 79 Cal.App.4th 95; Miller & Desatnik Management Co. v.
Bullock (1990) 221 Cal.App.3d Supp. 13.) We conclude that she
forfeited her due process argument by failing to support it with
reasoned argument and citation to pertinent authority. (Lee,
supra, 41 Cal.App.5th at p. 721.)
20
As Lopez-Farooq observes, section 581, subdivision (b)(4)
provides: “An action may be dismissed in any of the following
instances: [¶] . . . [¶] By the court, without prejudice, when
dismissal is made pursuant to the applicable provisions of
Chapter 1.5 (commencing with Section 583.110 [and ending with
section 583.430]).” (Italics added; see also § 581, subd. (g) [“The
court may dismiss without prejudice the complaint in whole, or as
to that defendant, when dismissal is made under the applicable
provisions of Chapter 1.5 (commencing with Section 583.110)”
(italics added)].)
The chapter cross-referenced in section 581, subdivision
(b)(4), includes the mandatory-dismissal and discretionary-
dismissal statutes. (Franklin, supra, 148 Cal.App.4th at pp. 214-
215.) Thus, a dismissal under those statutes must be without
prejudice. (Id. at p. 215 [trial court lacked authority to order
discretionary dismissal for delay in prosecution with prejudice].)
In sum, we conclude that Lopez-Farooq failed to meet her
burden to show error in the trial court’s dismissal of the action
for delay in prosecution, except as to the trial court’s ordering the
dismissal to be with prejudice. Accordingly, we will deny Lopez-
Farooq’s petition for a writ of mandate to set aside the dismissal,
but we will issue a writ of mandate directing the trial court to
modify the dismissal from a dismissal with prejudice to a
dismissal without prejudice.
We need not address Lopez-Farooq’s challenges to the trial
court’s alternative reason for dismissing the action, i.e., that the
mandatory-dismissal statutes required dismissal.
21
D. Lopez-Farooq fails to show error or prejudice in the
trial court’s denial of her motion for leave to file a
third amended complaint.
Lopez-Farooq argues that the trial court abused its
discretion by denying her motion for leave to file a third amended
complaint. However, she does not address the trial court’s
finding that she failed to comply with “any” of the requirements
of rule 3.1324 of the California Rules of Court. For example, her
motion and supporting declaration did not comply with the rule’s
requirements to include a copy of the proposed third amended
complaint and to explain why the request for amendment was not
made earlier. 14 (Cal. Rules of Court, rule 3.1324(a)-(b).)
Accordingly, we conclude that Lopez-Farooq fails to show that the
trial court erred in denying the motion. (See Levy v. Skywalker
Sound (2003) 108 Cal.App.4th 753, 770-771 [affirming denial of
plaintiff’s request for leave to amend complaint, in part because
plaintiff failed to explain delay in proposing amendment].)
14 “A motion to amend a pleading before trial must: [¶] (1)
Include a copy of the proposed amendment or amended pleading
. . . ; [¶] (2) State what allegations in the previous pleading are
proposed to be deleted, if any, and where, by page, paragraph,
and line number, the deleted allegations are located; and [¶] (3)
State what allegations are proposed to be added to the previous
pleading, if any, and where, by page, paragraph, and line
number, the additional allegations are located.” (Cal. Rules of
Court, rule 3.1324(a).) “A separate declaration must accompany
the motion and must specify: [¶] (1) The effect of the amendment;
[¶] (2) Why the amendment is necessary and proper; [¶] (3) When
the facts giving rise to the amended allegations were discovered;
and [¶] (4) The reasons why the request for amendment was not
made earlier.” (Id., rule 3.1324(b).)
22
Even assuming, arguendo, the trial court erred, Lopez-
Farooq fails to show prejudice. She does not argue that her filing
a third amended complaint would have expedited trial and
averted the trial court’s dismissal of the action for delay in
prosecution. Because we have concluded that Lopez-Farooq
failed to show error in the dismissal of the action, we conclude
that she failed to show prejudice from the denial of leave to file a
third amended complaint. (Cf. Vernon v. Great Western Bank
(1996) 51 Cal.App.4th 1007, 1013 [“Because we have upheld the
dismissal for failure to prosecute, a decision by us that the
summary adjudication motion was wrongly decided would
accomplish nothing—the case would remain dismissed and the
result would be Pyrrhic”].)
E. Lopez-Farooq’s judicial bias claim lacks merit.
Lopez-Farooq argues that various adverse rulings by the
trial court—including but not limited to the dismissal of the
action for delay in prosecution and denial of leave to file a third
amended complaint—show that the trial court acted on judicial
bias (or committed “fraud on the court”) in violation of her due
process rights.
The due process clause “sets an exceptionally stringent
standard” for claims of judicial bias. (Schmidt v. Superior Court
(2020) 44 Cal.App.5th 570, 589 (Schmidt).) “It is ‘extraordinary’
for an appellate court to find judicial bias amounting to a due
process violation.” (Ibid.) “ ‘[A] trial court’s numerous rulings
against a party — even when erroneous — do not establish a
charge of judicial bias . . . .’ ” (People v. Ng (2022) 13 Cal.5th 448,
572 (Ng); accord, Schmidt, at p. 580.)
Under that authority, the trial court’s rulings do not
support Lopez-Farooq’s claim of judicial bias. (See Ng, supra, 13
23
Cal.5th at p. 572; Schmidt, supra, 44 Cal.App.5th at p. 580.)
Moreover, the rulings that Lopez-Farooq cites as evidence of
judicial bias include the denial of her motion for a preliminary
injunction and the sustaining of LoanCare’s demurrer without
leave to amend, which we have concluded we lack jurisdiction to
review. We have also concluded that Lopez-Farooq failed to show
error in the denial of leave to file a third amended complaint or in
the dismissal for delay in prosecution. Although we have found
error in the trial court’s ordering the dismissal to be with
prejudice, that adverse ruling is not evidence of judicial bias.
(See Ng, at p. 572; Schmidt, at p. 580.)
Lopez-Farooq also argues that the trial court committed
“fraud on the court,” in violation of her due process rights, by
allegedly failing to serve her with an order in which the trial
court deemed this action not related to an unlawful detainer
action against her. However, Lopez-Farooq does not cite the
record to support her allegation that the order was never served
on her. In the absence of a contrary showing in the record, we
must presume the order was served on Lopez-Farooq. (Jameson,
supra, 5 Cal.5th at p. 609.) By failing to cite the record, Lopez-
Farooq failed to overcome that presumption and forfeited the
issue. (WFG National, supra, 51 Cal.App.5th at p. 894.) Further,
the register of actions indicates that Lopez-Farooq moved to
vacate the order deeming the actions not related, which
undermines her claim that she did not receive notice of the order.
In any event, Lopez-Farooq does not cogently explain how
the order deeming the actions not related prejudiced her
prosecution of this action. (See People v. Reardon (2018) 26
Cal.App.5th 727, 740 [“It is an appellant’s duty to spell out in the
briefing exactly how a claimed error caused prejudice; put
24
another way, we do not presume prejudice. Accordingly, the
failure to explain with particularity how a claimed error caused
prejudice forfeits the claim”]; accord, Adams v. MHC Colony
Park, L.P. (2014) 224 Cal.App.4th 601, 614-615.)
DISPOSITION
The appeal is treated as a petition for a writ of mandate.
The petition to set aside the dismissal for delay in prosecution is
denied. Let a peremptory writ of mandate issue directing the
respondent court to modify its March 29, 2023, order dismissing
the action with prejudice for delay in prosecution to an order
dismissing the action without prejudice for delay in prosecution.
The parties shall bear their own costs.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
25
