Filed 2/18/26 Khorshidi v. Janfaza CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
OMID KHORSHIDI,
Cross-complainant and Appellant,
v.
RON A. ROSEN JANFAZA,
Cross-defendant and Respondent.
B341145
(Los Angeles County Super. Ct. No. BC707602) APPEAL from a judgment of the Superior Court of Los Angeles County, Karen Moskowitz, Judge. Affirmed. Khorshidi Law Firm, Omid Khorshidi and Jamil A. Kassimali for Cross-complainant and Appellant. No appearance for Cross-defendant and Respondent. ____________________
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Omid Khorshidi appeals the trial court's dismissal without prejudice of his cross-complaint against Ron A. Rosen Janfaza. Because we perceive no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises from an alleged physical altercation between Janfaza and Khorshidi at the Santa Monica courthouse on May 26, 2016.1Janfaza originally filed a complaint against Khorshidi on May 25, 2018. His operative second amended complaint was filed on June 4, 2021, and alleged assault, battery, and related causes of action. Khorshidi cross-complained against Janfaza on June 22, 2020. Khorshidi's operative third amended cross-complaint was filed on January 3, 2022, and alleged causes of action for assault, battery, and violation of the Bane Civil Rights Act (Civ. Code, § 52.1).
The parties engaged in considerable motion practice over the course of more than five years. Trial was originally scheduled for January 23, 2023, but was continued multiple times. Ultimately, on June 17, 2024, trial was set for July 26, 2024. On that date, the matter was called for hearing. The transcript of the July 26, 2024, proceedings is not in the record; the following description is drawn from the trial court's minute order.
Janfaza appeared on his own behalf, and Jamil Kassimali appeared on behalf of Khorshidi. After explaining the trial court's denial of an ex parte application by Janfaza, the minute order indicates: "[Khorshidi] is not present in court and not ready to proceed to trial. The oral request on behalf of the absent [Khorshidi] for a short trial continuance is denied as there is no
1 This background is circumscribed by the limited record provided by Khorshidi on appeal. Janfaza has not appeared.
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showing of good cause. [¶] The Court, on its own motion, dismisses the cross-complaint without prejudice. [¶] [Janfaza] requests that their complaint be dismissed without prejudice before the trial begins, and the [c]ourt grants [Janfaza's] oral motion. [¶] The [c]ourt orders the [a]mended [c]omplaint (2nd) filed by Ron A. Rosen Janfaza on 06/04/2021 dismissed without prejudice. [¶] . . . [¶] The [c]ourt orders the [a]mended [c]ross- [c]omplaint (3rd) filed by Omid Khorshidi on 01/03/2022 dismissed without prejudice."
The order dismissing the entire action without prejudice was entered on July 29, 2024. Khorshidi timely appealed. (See Code Civ. Proc., §§ 581d, 904.1, subd. (a)(1);2Cal. Rules of Court, rule 8.104(a)(1)(A).)
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion by Dismissing Khorshidi's Cross-complaint
Khorshidi asserts the trial court dismissed his cross- complaint pursuant to section 581, subdivision (b)(5), although the court did not cite that provision in its July 26, 2024, minute order or in its order of dismissal. For purposes of this appeal, we accept Khorshidi's premise the dismissal was made pursuant to that statute, which provides "[a]n action may be dismissed . . . . [¶] . . . [¶] . . . [b]y the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal." (Ibid.)
A. Standard of Review
We review a trial court's dismissal of an action without prejudice pursuant to section 581, subdivision (b)(5) for abuse of
2 Undesignated statutory references are to the Code of Civil Procedure.
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discretion. (Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1695, 1699 (Cohen).) Under that 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."
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
B. On This Record, Dismissal Was Appropriate
Khorshidi has not provided us with a transcript of the July 26, 2024, hearing, and that seriously undermines his efforts to show the trial court abused its discretion. "[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct[,] and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal . . . ." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson); see also Cal. Const., art. VI, § 13.) " 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court.' " (Jameson, at p. 609.)
What we do have before us is the trial court's July 26, 2024, minute order. That document suggests while Janfaza appeared in court on the trial date, Khorshidi did not, and Khorshidi was not ready to proceed to trial. The trial court denied Khorshidi's counsel's request for a continuance. At some point during the hearing, "[Janfaza] request[ed] that their complaint be dismissed without prejudice," and the trial court ultimately dismissed both Janfaza's second amended complaint and Khorshidi's third amended cross-complaint.
On this record, we cannot say it was an abuse of discretion for the trial court to dismiss Khorshidi's cross-complaint when his
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counsel was not prepared to proceed to trial. (See Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1012-1013 [dismissal was appropriate when the plaintiff and counsel failed to appear for trial after continuance was denied]; Cradduck v. Hilton Domestic Operating Co., Inc. (2025) 112 Cal.App.5th 284, 301- 303 [no abuse of discretion in dismissing pursuant to § 581 when the plaintiff and counsel failed to appear for second day of trial]; see also Hurtado v. Western Medical Center (1990)
222 Cal.App.3d 1198, 1204 [no abuse of discretion in dismissing case when the plaintiff's counsel was unprepared to proceed with trial].)
C. Khorshidi Has Not Shown Any Abuse of Discretion
None of Khorshidi's arguments persuades us the trial court abused its discretion in dismissing his cross-complaint. First, Khorshidi argues the dismissal contravened "the plain language" of section 581 because the trial had not yet commenced at the time of the July 26, 2024, hearing. But nothing in section 581, subdivision (b)(5) suggests trial must have already begun for that subdivision to apply. While another subdivision of section 581 explains when a trial is "deemed to actually commence" (id., subd. (a)(6)), and other subdivisions turn upon
"the actual commencement of trial" (see, e.g., id., subds. (b)(1), (c), (e)), subdivision (b)(5) does not. Khorshidi has cited no authority indicating the commencement of trial is relevant to subdivision (b)(5). The trial court's dismissal of Khorshidi's cross-complaint before trial began was not inconsistent with section 581. Second, Khorshidi argues the trial court abused its discretion because section 581, subdivision (b)(5) requires the other party to "ask[] for dismissal" (ibid.), and the court's "minute order does not reflect [Janfaza] requested dismissal." But
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Khorshidi has cited no authority suggesting a minute order must reflect a party's requests. (Cf. § 1003.) That the minute order does not expressly state Janfaza asked for dismissal of the cross- complaint does not necessarily mean he did not do so. (See Cohen, supra, 36 Cal.App.4th at p. 1696 [hearing transcript included counsel's request for dismissal, but minute order did not].) Moreover, the July 26, 2024, minute order states "[Janfaza] requests that their complaint be dismissed without prejudice."
The trial court's use of "their complaint" is somewhat ambiguous. While Khorshidi would apparently read that to refer solely to Janfaza's own complaint, it could be consistent with a request by Janfaza to dismiss the complaints of both parties. A transcript of the July 26, 2024, proceedings might resolve the ambiguity. But because Khorshidi has not provided us with a transcript, he cannot demonstrate Janfaza did not in fact "ask[] for dismissal."
(§ 581, subd. (b)(5); see also Jameson, supra, 5 Cal.5th at p. 609, fn. 11 [" 'if it is not in the record, it did not happen' "].) Without a transcript or any conclusive record evidence to the contrary, we presume Janfaza asked for dismissal of Khorshidi's cross- complaint. (See Jameson, at p. 609.)
Third, Khorshidi argues his counsel appeared at the hearing on his behalf and "[t]here was no reason why the matter could not have proceeded in [Khorshidi's] absence." We disagree. While Khorshidi's counsel, Jamil Kassimali, appeared on July 26, 2024, Khorshidi provides no record citation for his assertion Kassimali was prepared to proceed on that date. On the contrary,
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[trial court properly denied oral motion for continuance made on the first day of trial]; Cal. Rules of Court, rule 3.1332.) That distinguishes Khorshidi's situation from Cohen, supra, 36 Cal.App.4th 1693. That court held the plaintiff's failure to be "personally present in court on the morning trial was to commence did not warrant dismissal pursuant to section 581, subdivision (b)(5)." (Cohen, at p. 1700.) But there, the plaintiff's counsel "did not . . . request a continuance" and "did not assert he was not ready to proceed with trial." (Ibid.) By contrast, here Khorshidi was "not ready to proceed to trial," his counsel orally requested a continuance, and Khorshidi has not appealed the denial of that request.
It was therefore appropriate for the trial court to dismiss Khorshidi's cross-complaint. (See Lazarus v. Titmus (1998)
64 Cal.App.4th 1242, 1247, 1250-1251 [no abuse of discretion in denying the plaintiff's motion for continuance; court thereafter entered judgment of dismissal].)
DISPOSITION
The judgment is affirmed. Because Janfaza did not appear on appeal, no costs are awarded. (See Cal. Rules of Court, rule 8.278(a)(5).)
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J. GILBERT, J.* * Retired Presiding Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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