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Weatherby v. City of Inglewood11/13/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Ronald Weatherby (Weatherby) appeals an order denying his motion to set aside an order dismissing his complaint for failure to prosecute. Weatherby's action, which had been pending less than six months at the time, was dismissed pursuant to Los Angeles Count Superior Court Local Rule 7.7 for failure to serve the summons within 60 days of the filing of the complaint. We reverse because the record fails to demonstrate that this severe sanction was appropriate and that the failure to timely serve the complaint was attributable to Weatherby, rather than counsel.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 3, 2001, Weatherby, who was represented by counsel, filed a complaint against the City of Inglewood (City) and certain individual City police officers (Willard Salmon, Sr., Willard Salmon, Jr., Jose Becerra, Luis Jaramillo, Jeremy Morse, Shaun Jennings, and Ronald C. Banks) for personal injury , assault and battery, false arrest, false imprisonment, and violation of federal civil rights arising out of an arrest of Weatherby on October 3, 2000.
On December 10, 2001, Weatherby filed a substitution of attorneys form substituting Cameron Brock (Brock) in place of Paul Opel (Opel) as his attorney.
On January 9, 2002, Opel was ordered to file within three court days a declaration stating facts showing cause why sanctions, including dismissal, should not be imposed for failure to prosecute pursuant to Local Rule 7.7. He failed to file that declaration.
On February 8, 2002, Weatherby filed a substitution of attorneys form substituting himself in propria persona in place of Brock. On the same day, the matter came before the court on an order to show cause re dismissal for failure to prosecute, as the summons and complaint had not been served within 60 days of filing nor had the proof of service been filed within 90 days of filing as required by Local Rule 7.7, subdivisions (A)(1) and (A)(4). The court imposed sanctions of $250 on Opel for failure to file the previously ordered declaration. The matter was continued to February 27, 2002, and the court ordered Weatherby to file a declaration by February 21, 2002, stating detailed facts showing cause why sanctions should not be imposed for a continuing failure to prosecute. The court ordered Brock to give notice to Weatherby; the court served a copy of the minute order on Opel.
On February 19, 2002, Brock, "specially appearing for plaintiff," served a notice of order to show cause ruling on Opel and Weatherby.
On February 27, 2002, former counsel Opel appeared at the hearing. The court found that the complaint had not yet been served. The minute order stated that "plaintiff's original counsel [Opel] has explained his failure to prosecute by declaration filed February 25, 2002," and vacated the sanctions previously imposed against Opel. The court further noted that Weatherby had failed to file the declaration previously ordered, imposed sanctions of $250, and dismissed the action for continued failure to prosecute.
On July 22, 2002, Weatherby filed a substitution of attorneys form substituting Brock in place of himself as his attorney. On the same date, Weatherby filed an ex parte application to vacate the dismissal of February 27, 2002. Attached to the ex parte application were declarations of Broc
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