Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a premises liability case.  Plaintiff Lorenzo Cerullo claims he was crushed between faulty elevator doors at a CVS Pharmacy in the City of Los Angeles.  As a result, Plaintiff claims he sustained severe injuries to his shoulder, hand and neck.   

This action ensued.  Plaintiff filed a form complaint against CVS Pharmacy Inc. and the operators of the elevator (Stone Haven Partners LP and Kone Inc.), alleging a single claim for premises liability. 

On December 6, 2023, the Court held a Case Management Conference (“CMC”).  It ordered a Status Conference on June 3, 2024, and ordered the parties to submit a Joint Status Conference Statement addressing completed and pending discovery, anticipated motions, and any plans for mediation.  The parties were further ordered to meet and confer in preparation of the joint status report. (Noon Dec ¶ 3.)  

Plaintiff did not file or serve any pleading in advance of the June 3, 2024 Status Conference. (Id. ¶ 6.) Due to Plaintiff’s failure, the Court again ordered Plaintiff to file a Status Report and issued an Order to Show Cause Re: Sanctions for Failure to Submit a Joint Status Report (“OSC”) scheduled for July 3, 2024.  Plaintiff was further ordered to give notice of the ruling and notice of the scheduled hearings before the Court on July 3, 2024. (Id. ¶ 7.)  Plaintiff did not give notice. (Id. ¶ 8.)  

On June 24, 2024, Defendants emailed Vania Nemanpour, Esq., counsel for Plaintiff, with a draft Joint Status Report, requesting input from Plaintiff by Thursday, June 27, 2024.  Defense counsel followed up twice with Ms. Nemanpour to request Plaintiff’s input on the Joint Status Report but received no response. (Id. ¶9-10.) Defendants were therefore forced to file a Joint Status Report on June 28, 2024, without the input of Plaintiff. (Id. ¶ 11.)  

During the July 3, 2024, Status Conference the Court noted that Plaintiff did not file a response to the OSC and there was insufficient cause shown by Plaintiff as to why a joint status report was not submitted prior to the hearing. The Court ordered Plaintiff to pay sanctions to the Court pursuant to Code Civ. Proc. § 177.5, and again ordered the Parties to meet and confer and for Plaintiff to submit a joint status report before the continued status conference on August 6, 2024. The Court issued another OSC against Plaintiff and warned Plaintiff that failure to participate in filing of a joint status report would lead to dismissal.  (Id. ¶ 12.)  

On July 29, 2024, after not hearing from Plaintiff’s counsel on the joint report Plaintiff’s counsel was ordered to prepare, defense counsel emailed Ms. Nemanpour requesting she circulate an updated Joint Status Report in advance of the Continued Status Conference on August 6, 2024.  Ms. Nemanpour sent a document in WordPerfect format, unable to be opened by any party. (Id. ¶ 21.)  Both Defendants’ counsel advised her of such. After no response from Ms. Nemanpour, defense counsel circulated a Word copy of Defendants’ previously drafted Joint Status Report, with a section left blank for Plaintiff’s input. (Id. ¶ 21.) Ms. Nemanpour did not respond, and on July 30, 2024, defense counsel again reminded Ms. Nemanpour that Plaintiff’s input was necessary and requested she return the Joint Status Report by August 1, 2024, for filing.  

Ms. Nemanpour sent counsel a PDF copy of the Joint Status Report without Plaintiff’s input but with the signature of Hess Panah.  She then followed up, asking defense counsel to “Please add that Plaintiff would need the deposition of the PMK of Kone and CVS and will provide notice pursuant to code.”  Defense counsel advised Ms. Nemanpour that she needed to “add Plaintiff’s input directly into the Joint Status Report. [He did] not want to put words in [her or her] client’s mouth. Plus, [she] also needed to address the sections regarding Anticipated Motions and Mediation.”  Ms. Nemanpour did not respond, and did not answer defense counsel’s follow up correspondence on July 31, 2024 again asking for input and signature prior to filing. (Noon Dec., at ¶¶ 22, 23.)  Thus, on August 1, 2024, Defendants filed and served the Joint Status Report, without Plaintiff’s input. (Noon Dec., at ¶ 24.)  

On August 5, 2024, Ms. Nemanpour finally responded, saying that she “already signed. Please submit as is. The depositions will be noticed pursuant to code,” and questioned whether it was filed.  Defendants explained a Joint Status Report was filed with Defendants’ portion only as Plaintiff had failed to include her input and respond to the multiple attempts to garner her cooperation before the deadline.  (Id. ¶ 25.)  

On August 6, 2024, all parties appeared before the Court for the Status Conference and OSC Re: Sanctions on Plaintiff for Failure to Submit Joint Status Report. The Court dismissed the entire action without prejudice because Plaintiff did not submit the Joint Status Report, for the then third time, as previously ordered. (Id. ¶ 27.)   

This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff seek relief from the dismissal because his counsel had assumed Defendants would file a joint statement which had been exchanged between the parties, and due to illness, Plaintiff’s counsel did not realize that the joint statement was not filed until the night before the hearing.   

 

LEGAL STANDARD 

Pursuant to Code Civ. Proc. §473(b), both discretionary and mandatory relief are available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code of Civ. Proc. § 473(b).)  

Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Id.)  The purpose of the attorney affidavit provision is to “relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.”  (Hu v. Fang (2002) 104 Cal.App.4th 61, 64.)  Mandatory relief is available even if counsel’s neglect was inexcusable.  (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516–517.)   

An application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

“[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court[.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)  Any doubt in applying section 473, subdivision (b), must be resolved in favor of the party seeking relief.  (Bonzer v. City of Huntington Park (1993) 20 Cal. App. 4th 1474,¿1477-1478.)   

Where relief is promptly sought and no prejudice would be done to the opposing party, only very slight evidence is required to justify the setting¿aside of a default.  For this reason, orders denying relief under section 473 are carefully scrutinized on appeal. (¿Rappleyea v. Campbell¿(1994) 8 Cal..4th 975, 980;¿Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 233.) 

REQUEST FOR JUDICIAL NOTICE 

Defendant Kone Inc. requests judicial notice of the following: 

 

EXHIBIT 1: December 6, 2023 Minute Order filed on December 6, 2023 by the Los Angeles Superior Court in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388.  

 

EXHIBIT 2: June 3, 2024 Minute Order filed on December 6, 2023 by the Los Angeles Superior Court in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388.  

 

EXHIBIT 4: Defendants GARFIELD BEACH CVS, LLC, STONE HAVEN PARTNERS, L.P. and KONE INC.’s Joint Status Report filed on June 28, 2024 by Defendants GARFIELD BEACH CVS, LLC, STONE HAVEN PARTNERS, L.P. and KONE INC. in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388  

 

EXHIBIT 5: Notice of Ruling Re: July 3, 2024 Continued Status Conference and Order to Show Cause Re: The Parties’ Prior Failure to Submit a Joint Status Report filed on July 3, 2024 by the Los Angeles Superior Court in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388. 

 

EXHIBIT 10: July 26, 2024 Minute Order filed on December 6, 2023 by the Los Angeles Superior Court in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388.  

 

EXHIBIT 13: Defendants’ Joint Status Report; Declaration of Eric Sowatsky filed on August 1, 2024 by Defendants GARFIELD BEACH CVS, LLC, STONE HAVEN PARTNERS, L.P. and KONE INC. in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388.  

 

EXHIBIT 14: Notice of Ruling Re: August 6, 2024 Continued Status Conference and Order to Show Cause Re: Plaintiff’s Prior Failure to Submit a Joint Status Report filed on August 6, 2024 by Defendants GARFIELD BEACH CVS, LLC and STONE HAVEN PARTNERS, L.P.in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., case number 23SMCV02388.  

 

EXHIBIT 15: Declaration of Julia Dalzell, Esq., in Support of KONE’s Meet and Confer Efforts to Resolve Issues of Demurrer in Accordance with Court Order December 12, 2023 filed on January 3, 2024 by KONE INC. in Lorenzo Cerullo v. CVS Pharmacy Inc., et al., Case number 23SMCV02388. 

 

The Court denies the request as unnecessary.  These exhibits are part of the filings in this action. It is¿unnecessary¿to ask the Court to take¿judicial¿notice¿of materials previously filed in this case. “[A]ll that is necessary is to¿call¿the court’s¿attention¿to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 9:53.1a.) 

DISCUSSION 

The mandatory relief provision of §473(b) refers to both “default judgment or dismissal”.  The inclusion of “dismissal” by the Legislature was intended to “put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action.”  (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 175.).   

However, although the language of the mandatory provision, on its face, affords relief from unspecified ‘dismissals’ caused by attorney neglect, “our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’ to undo dismissals of civil cases.”  (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967.)   

Courts have construed the provision as reaching only dismissals that are “procedurally equivalent to a default.”  (Jackson, 32 Cal.App.4th at 174.)  Dismissals that are sufficiently distinct from a default, thereby falling outside the scope of the mandatory provision, include “dismissals for failure to prosecute, dismissals for failure to serve a complaint within three years, dismissals based on running of the statute of limitations and voluntary dismissals entered pursuant to settlement.” (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.)   

Here, the dismissal was due to Plaintiff’s failure to prosecute, and therefore, mandatory relief is unavailable.  As outlined above, Plaintiff’s pattern of failing to comply with this Court’s orders and to submit a joint case management conference report culminated in the dismissal.   

The Court turns now to whether discretionary relief is available.  In determining whether an attorney’s mistake or inadvertence was excusable neglect warranting discretionary relief, the Court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34; Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146.)  Conduct falling below the professional standard of care is not excusable. (Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1112.)  

Here, counsel’s actions were not reasonable.  Plaintiff’s counsel failed to file a joint CMC statement three times.  Plaintiff has only offered an excuse for her third failure to comply with the Court’s order.  And even that excuse is not reasonable.  Plaintiff claims she thought Defendants would file the joint CMC statement because she signed it.  But the CMC statement requires Plaintiff to put in her portion which she failed to do.  Accordingly, even if Defendants had filed the joint statement with Plaintiff’s signature, Plaintiff would still have not complied with the Court’s order requiring a joint CMC statement.     

Given the foregoing, the Court denies the motion to set aside dismissal.   

 

 

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiff’s motion to set aside dismissal.   

 

IT IS SO ORDERED. 

 

DATED: September 17, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court