Judge: John J. Kralik, Case: 23BBCV0039722BBC, Date: 2023-08-18 Tentative Ruling

Case Number: 23BBCV0039722BBC    Hearing Date: August 18, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Antonio Fernandez (“Plaintiff”) alleges that he has a physical disability such that he is paralyzed from the waist down and uses a wheelchair for mobility.  He alleges that he went to Defendant El Monte Gas-N-Save (“Defendant”) on July 25, 2022 with the intention of availing himself to its goods, services, privileges, or advantages, which was motivated in part to determine if Defendant complied with the disability access laws.  Plaintiff alleges that the facility failed to comply with ADA standards as it related to wheelchair users and that the path of travel inside the gas station store narrowed to as little as 24 inches in width inside the store.

The complaint, filed October 10, 2022, alleges causes of action for: (1) violation of the Unruh Civil Rights Act; and (2) violation of the California Disabled Persons Act

B.     Relevant Background

On December 12, 2022, Plaintiff filed a Notice of Settlement of Entire Case, stating that the settlement is unconditional and that a request for dismissal will be filed within 45 days after the December 12, 2022 date of settlement. 

On December 19, 2022, the Court set an OSC re: Dismissal (Settlement) for February 1, 2023 in light of the Notice of Settlement.

On February 1, 2023, the Court held an OSC re: Dismissal (Settlement).  The Court noted that the Notice of Settlement had been filed on December 12, 2022 and that Plaintiff’s counsel had been given proper notice of the OSC hearing on December 19, 2022.  No appearances were made to the hearing.  The Court ordered the complaint filed by Plaintiff to be dismissed with prejudice.    

C.     Motion on Calendar

On July 24, 2023, Plaintiff filed a motion to set aside the dismissal.

The Court is not in receipt of an opposition brief.  

DISCUSSION

            Plaintiff moves to vacate the February 1, 2023 dismissal pursuant to CCP § 473(b).  In support of the motion, Plaintiff provides the declaration of his counsel Claire Cylkowski.

            Ms. Cylkowsi states that she filed the Notice of Settlement on December 12, 2022 and anticipated that a request for dismissal would be filed within 45 days on January 26, 2023.  (Cylkowsi Decl., ¶3.)  She states that on December 16, 2022, she checked the docket for updates after the Notice of Settlement was filed.  (Id., ¶4, Ex. 1.)  She states that unbeknownst to Plaintiff, the Court ordered the parties to appear at the OSC re Dismissal (Settlement) on January 26, 2023 (the date was actually February 1, 2023), but she did not receive such notice.  (Id., ¶5.)  She states that on January 26, 2023, she filed her notice of inability to dismiss and included a request for more time to dismiss the case, but she did not know that an OSC hearing was scheduled for the same day.  (Id., ¶6.)  (The Court notes there was no January 26, 2023 hearing date.)  She states that on February 1, 2023, the Court dismissed the matter with prejudice because Plaintiff’s counsel did not appear at the OSC hearing.  (Id., ¶7.)  She states that dismissal will irreparably harm Plaintiff because Plaintiff will be foreclosed from pursuing his claims and he does not have a fully executed settlement agreement which he can enforce.  (Id., ¶8.)  She states that from December 12, 2022 to January 26, 2023, the parties were in constant communication exchanging drafts of the agreement.  (Id., ¶9.)  She states that on January 25, 2023, Plaintiff was waiting for final approval from Defendant so that they could circulate the final draft of the settlement agreement for signatures and they had plans for the following week to discuss finalizing the draft and collecting signatures.  (Id., ¶10.)  Ms. Cylkowsi states that she attempted to contact Defendant over the phone several times in February 2023 and on February 27, 2023, Defendant informed Plaintiff’s counsel that the case had been dismissed and stopped responding to Plaintiff thereafter.  (Id., ¶11-12, Ex. 2.)  She states that she did not learn of the dismissal until February 27, 2023 and states that she has attempted to locate a copy of the notice, but had no record of receiving the notice of the OSC hearing date.  (Id., ¶13.)  She states that the OSC was not calendared due to the excusable neglect and inadvertent mistake of Plaintiff’s counsel.  (Id., ¶14.) 

Based on the declaration of Ms. Cylkowsi, the Court finds there is merit to the motion, especially given that the relief is mandatory when the attorney is stating that the fault lies with her rather than with the client. The motion was timely brought within 6 months of the dismissal and the motion is unopposed. Nevertheless, the affidavits here show that the firm has still not corrected its calendaring practices, as the date of the hearing is again misstated in the moving papers. The Court reminds Plaintiff’s counsel that the tolerance of the Court as to mistakes of this kind is not limitless:

The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. [Fn. omitted.] When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law." (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282 [75 Cal.Rptr. 848].)

(Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal. 3d 892, 900.)  In view of this concern, the Court will order that Plaintiff’s counsel pay $500 to the State Bar Client Security Fund.  (CCP § 473(c).) 

Thus, the motion to vacate the dismissal is granted. 

CONCLUSION AND ORDER

Plaintiff’s motion to vacate the dismissal is granted.  Plaintiff’s counsel is ordered to pay $500 to the State Bar Client Security Fund and file proof of payment with the Court within 30 days.

The Court sets a Case Management Conference for October 26, 2023 at 8:30 a.m.

Plaintiff shall provide notice of this order.