Opinion
B310632
10-16-2023
BRIAND WMS ESQUIRE, Plaintiff and Appellant, v. EXECUTIVE NETWORK ENTERPRISES, INC., Defendant and Respondent.
Briand WMS Esquire, in pro. per., for Plaintiff and Appellant. Benowitz Law Corporation, and Louis Benowitz for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCP00130, Edward B. Moreton, Jr., Judge. Affirmed.
Briand WMS Esquire, in pro. per., for Plaintiff and Appellant.
Benowitz Law Corporation, and Louis Benowitz for Defendant and Respondent.
BAKER, J.
The trial court dismissed a lawsuit filed by plaintiff and appellant Briand Wms. Esquire (plaintiff) because plaintiff repeatedly failed to appear at scheduled hearings. We consider whether plaintiff can obtain reversal of the dismissal on grounds that it resulted from his excusable neglect when he did not seek relief on that ground in the trial court.
I. BACKGROUND
In December 2014, plaintiff filed a claim with the Labor Commissioner's Office against defendant and respondent Executive Network Enterprises, Inc. (defendant). Plaintiff contended he responded to an advertisement by defendant seeking drivers for its limousine service, was hired, and worked one day (which he spent watching training videos), but was never paid for his time. Defendant's claim sought $280 in unpaid wages, plus liquidated damages and waiting time penalties under applicable provisions of the Labor Code.
At the administrative hearing on his claim, defendant submitted an advertisement by and documentation about defendant's business, but he did not introduce any paperwork establishing he was ever one of defendant's employees. In a written response to plaintiff's claim, which was read into the record at the hearing, defendant's owner maintained there was no record in the company's files of defendant ever being an employee.
The hearing officer found in defendant's favor. Plaintiff challenged the adverse decision by filing a notice of appeal in the trial court.
When plaintiff, who was self-represented, failed to appear at a scheduled November 9, 2020, status conference (trial was set for the following February), the trial court set a hearing on an "Order to Show Cause re: Dismissal" and stated it would dismiss the case if plaintiff did not appear. Plaintiff did fail to appear at the OSC hearing and the court dismissed the case with prejudice.
The record does show that plaintiff attended court conferences prior to November 2020.
Plaintiff did not seek relief from the dismissal in the trial court. But he did notice an appeal from the judgment.
II. DISCUSSION
Plaintiff claims he was unable to attend the aforementioned status conference and OSC hearing because he had been arrested on October 4, 2020, and was held at the hospital for the Los Angeles County Men's Jail until December 30, 2020. He asserts he sent two letters to the trial court during his detention explaining his whereabouts, and he argues the order dismissing his action should be reversed because he meets the requirements of Code of Civil Procedure section 473 (section 473), a statute that permits a court to vacate a previously entered dismissal upon an adequate showing that the dismissal was attributable to the plaintiff's "mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).)
We requested the trial court's complete file and we take judicial notice of the file on our own motion. The file does not include any correspondence from plaintiff regarding his detention or any record indicating the court received any such correspondence.
Plaintiff, however, did not seek section 473, subdivision (b) relief in the trial court. That forfeits the sole argument for reversal made on appeal. (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038 ["It is axiomatic that arguments not raised in the trial court are forfeited on appeal"]; Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.)
DISPOSITION
The judgment is affirmed. Defendant is awarded costs on appeal.
We concur: RUBIN, P. J., MOOR, J.