Lopez-Farooq v. Superior Court CA2/1 filed 7/31/26

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 al.,

Petitioners,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

BANK OF AMERICA, N.A., et al.,

Real Parties in Interest.

B330207

(Los Angeles County
Super. Ct. No. PC058000)

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 InterestBank 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).
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 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)).
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 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.
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 actionagainst 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 foreclosureof 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 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.
In February 2022, Lopez-Farooq filed her operativesecond amended complaint. In June 2022, the trial court scheduled a March 2023 hearing on an order to show causeregarding dismissal for delay in prosecution.
In February 2022, Lopez-Farooqfiled her operative second amended complaint against the original defendants as well as LoanCare, LLC; ServiceLink Title Company; JT Legal Group; Green Tree Servicing, LLC; and Lawyers Title Co. In August 2022, Lopez-Farooq amended the complaint to substitute Breckenridge Property Fund 2016, LLC (Breckenridge), for Doe no. 1.
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.
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.”
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 fromthe 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 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).
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
We lack jurisdiction to reviewappealable 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 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. (§ 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 relateddefendants), ServiceLink, JT Legal Group, and Lawyers Title Company. (§ 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 theseparately 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].)
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.(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 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.)
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].)
Here, the record contains only one copy of the trial court’s March 29, 2023minute 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 filedany 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.
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 & 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 raisesregarding 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.)
Lopez-Farooq fails to show that the trial court erred by dismissing the action for delay in prosecution.Thedismissal 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 underthe 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 action for delay in prosecution under the discretionary-dismissal statutes. We agree, however, that the dismissal statutes required the dismissal to be without prejudice.
Lopez-Farooq fails to meet her burden to show that the trial court abusedits 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 controlling period is two years.” (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 notaddress 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.
We conclude that by failing to present any reasoned argument regarding the trial court’s discretionary dismissal under sections583.410 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. (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 timeduring 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 todismiss the action for delay in prosecution. (§583.420, subd. (a)(2); Cal. Rules of Court, rule 3.1340(a).)As discussed, Lopez-Farooq forfeited any challenge to the manner in which the trial court exercised its discretion.
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.
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.
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 bewithout 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’sordering 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.
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” ofthe 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.(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].)
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”].)
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 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, whichwe 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 inthe 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 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.