Judge: Joel L. Lofton, Case: 22BBCV00741, Date: 2024-04-11 Tentative Ruling

Case Number: 22BBCV00741    Hearing Date: April 11, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      April 11, 2024                                                TRIAL DATE: No date set.

CASE:                         BRIAN WHITAKER v. JASJIT K. BISLA, in individual and representative capacity as Trustee of The Bisla Family Trust, under trust instrument dated October 6, 2004; SATINDER S. BISLA, in individual and representative capacity as Trustee of The Bisla Family Trust, under trust instrument dated October 6, 2004; and Pinkberry, Inc., a California corporation.

CASE NO.:                 22BBCV00741

MOTION FOR ORDER SETTING ASIDE ORDER FOR SANCTIONS

MOVING PARTY:               Counsel Manuel Eli Gonzalez, counsel of record for Defendant Pinkberry, Inc.

RESPONDING PARTY:      Plaintiff Brian Whitaker

SERVICE:                              Filed January 2, 2024

OPPOSITION:                       Filed March 27, 2024

REPLY:                                   Filed March 28, 2024

RELIEF REQUESTED

             Counsel moves to set aside this court’s order imposing $3,000 in sanctions against him.

BACKGROUND

             This case arises out of Plaintiff’s claims that Defendants failed to comply with disability access laws and denied him full access, services, and privileges to their facility. Plaintiff filed this complaint on October 11, 2022.

TENTATIVE RULING

Defendant’s counsel’s motion to set aside the order imposing sanctions is DENIED. The sanction total is reduced from $3,000 to $2,000.

LEGAL STANDARD

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. § 473, subd. (b).)

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc. § 1008, subd. (a).

DISCUSSION

            On August 14, 2023, a request for dismissal was entered dismissing the entire action with prejudice. On October 4, 2023, Plaintiff filed a motion to set aside dismissal and stated that Defendants’ counsel had filed the request for dismissal with Plaintiff’s counsel’s signature. On November 3, 2023, this court held a hearing for the motion to set aside dismissal. Defendant’s counsel failed to appear for the hearing. At the hearing, this court scheduled an order to show cause for December 12, 2023, regarding sanctions for the improperly filed dismissal. At the December 12, 2023, hearing on the order to show cause, Defendant’s counsel again failed to appear, and this court sanctioned him $3,000.

             Defendant’s counsel now moves for reconsideration of the order or an order setting aside the previous order. Defendant’s counsel contends that sanctions should not be imposed on him because he mistakenly filed the request for dismissal and failed to appear for the December 12, 2023, hearing because he was improperly notified.

            Defendant’s counsel provides that he had received a signed request for dismissal and thought Plaintiff had intended to dismiss his clients. (

Gonzalez Decl. ¶¶ 3-4.) In opposition, Plaintiff contends that the signed dismissal was for another case and that a document error had caused the form to be sent with only the signature filled out. Additionally, the proof of electronic service was served to efi3glaw@q-mail.com. However, Defendant’s counsel provides that his email is eli3glaw@gmail.com. (Gonzolez Decl. ¶ 10.)

            It appears that Defendant’s counsel was not properly notified of the order to show cause. Nonetheless, Defendant took a signed request for dismissal form, assumed it was for his clients, filled the form out, and submitted it, necessitating the following hearings. Defendant’s counsels action are neither reasonable nor constitute excusable neglect. However, based on the lack of notice, the sanctions imposed against Defendant’s counsel is reduced to $2,000.

CONCLUSION

Defendant’s counsel’s motion to set aside the order imposing sanctions is DENIED. The sanction total is reduced from $3,000 to $2,000.

Dated:   April 11, 2024                                               ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court