Judge John J. Kralik, Case Number: 22BBCV00741, Date: 2023-11-03 Tentative Ruling

Plaintiff Brian Whitaker filed the complaint for damages and injunctive relief for violation of the Unruh Civil Rights Act and California Disabled Persons Act on October 11, 2022. Plaintiff alleges that he is a California resident with physical disabilities. He alleges that Defendants Jasjit K. Bisla and Satinder S. Bisla are individuals and trustees of the Bisla Family Trust, under trust instrument dated October 6, 2004 and that they own real property located at 120 E. Palm Ave., Los Angeles, CA. Plaintiff alleges that Defendant Pinkberry, Inc. (“Pinkberry”) is located at this address. Plaintiff alleges that he went to Pinkberry on August 25, 2022 and he observed the following non-compliant conditions: (1) dining surfaces with not enough toe clearance under the outdoor dining surfaces; and (2) the plumbing under the sink in the restroom was not wrapped to protect against burning contact.

On November 17, 2022, the dismissal without prejudice of Defendants Jasjit K. Bisla and Satinder S. Bisla was entered by the clerk.

On May 26, 2023, the default of Pinkberry was entered. On June 29, 2023, the Court signed the Order on Stipulation to set aside Pinkberry’s default.

On August 14, 2023, the clerk entered the dismissal without prejudice of the entire action of all parties and all causes of action.

On October 4, 2023, Plaintiff filed a motion to set aside the dismissal. The Court is not in receipt of an opposition brief. On October 26, 2023, Plaintiff filed a reply and notice of non-receipt of an opposition brief.

Plaintiff provides the declaration of his counsel, Naomi Butler, in support of the motion. Ms. Butler states that there was a Case Management Conference on August 14, 2023 and Meggie Davenport from the Center for Disability Access appeared on behalf of Plaintiff and was shocked to find that a request for dismissal had been filed in this instant matter and that the Court informed her that the request for dismissal had been filed that same morning. (Butler Decl., ¶9.) Ms. Davenport then contacted Ms. Butler on August 17, 2023, stating that Ms. Butler had filed a dismissal. (Id., ¶10.) Ms. Butler states that she investigated this claim, did not recall ever working on this case or filing a dismissal, and her team also affirmed that they had not filed the dismissal. (Id., ¶11.) Ms. Butler called Department B and affirmed that it was her signature, but that she had not signed the document nor sent it for filing. (Id., ¶12.) Ms. Butler states that, upon inspection, the Request for Dismissal was not typed in the font she typically uses, did not have the traditional case name of her file (and instead stated Pinkberry’s name), and her signature was off-center. (Id., ¶13.) Ms. Butler states that her filing team went into their Greenfiling folder to determine if they had filed the document, but they determined that the last document filed by her office via Greenfiling was a Case Management Statement on July 25, 2023. (Id., ¶¶14-15, Exs. A-B.) She also confirmed with OneLegal and ASAP Legal to ensure that the Request for Dismissal was not filed by a different service company. (Id., ¶¶16-17, Exs. C-D.) In addition to confirming that the filing team and no service company had filed the Request for Dismissal, she also checked her desktop and laptop to confirm that the Request for Dismissal was not filled out and signed by her. (Id., ¶18.) Ms. Butler states that she contacted defense counsel, Manuel Eli Gonzalez, to ask if he had filed the Request for Dismissal and Mr. Gonzalez confirmed that he had filed it, believing that Plaintiff’s counsel wanted him to file; he then represented (differently) that Plaintiff’s counsel had faxed it to him; and then he admitted that he believed that Plaintiff’s counsel would not notice if he filed it due to high volume of Plaintiff’s cases. (Id., ¶19.)[1] Ms. Butler states that she had previously served on defense counsel a Request for Dismissal in a different case (Whitaker v. Kamran Naimi), which appeared blank except for her signature, and that the Whitaker/Naimi Request for Dismissal appears to be essentially the same (with the same Greenfiling watermark no. 8092761.1.c on the top left corner of the page) as the Request for Dismissal filed in this action, but manipulated by defense counsel to make it appear that it was for this action. (Id., ¶21, Exs. E-F.) Ms. Butler states that she drafted a stipulation to set aside the dismissal, but defense counsel did not sign the stipulation. (Id., ¶22.)

Based on the declaration of Ms. Butler, the Court finds there is substantive merit to the motion. Further, the motion was timely brought within 6 months of the dismissal and the motion is unopposed. As the motion in not opposed, defense counsel has not explained why they filed the Request for Dismissal on behalf of Plaintiff without authorization. The motion to vacate the dismissal is granted.

Plaintiff Brian Whitaker’s motion to set aside the dismissal is granted. The Court sets an order to show cause for December 12, 2023 at 8:30 a.m. in Department B of the above entitled
Court. Defense Attorney Manuel Eli Gonzalez should show cause why he should not be sanctioned in an amount not to exceed $5,000 for filing the dismissal in this case, apparently without authorization. The Court is deeply concerned about this event, which threatened the integrity of the Court’s electronic file.

Warning regarding electronic appearances: All software for remote or electronic appearances is subject to malfunction based on system weakness and human error, which can originate from any of the multiple parties participating each morning. The seamless operation of the Court’s electronic appearance software is dependent on numerous inconstant and fluctuating factors that may impact whether you, or other counsel or the Court itself can be heard in a particular case. Not all these factors are within the control of the courtroom staff. For example, at times, the system traps participants in electronic purgatories where they cannot be heard and where the courtroom staff is not aware of their presence. If you call the courtroom, please be respectful of the fact that a court hearing is going on, and that the courtroom staff is doing their best to use an imperfect system. If it is truly important to you to be heard, please show up to the courtroom in the normal way. Parking is free or reasonable in Burbank.

[1] According to Ms. Butler, this conversation occurred over the telephone. As such, there is no documentary evidence to support these statements. The motion is not opposed and Defendant has not refuted these statements.

Superior Court of California

County of Los Angeles

Department B