Opinion
E079405
03-28-2024
CARY KOFFLER, Plaintiff and Appellant, v. GMI BUILDING SERVICES, INC., Defendant and Respondent.
The Simon Law Group, Robert T. Simon, Thomas J. Conroy, and Lucas A. Whitehill, for Plaintiff and Appellant. Charmasson, Buchaca & Leach, Rob G. Leach, and Benjamin D. Taggart, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. MCC2000181. Raquel A. Marquez, Judge. Dismissed.
The Simon Law Group, Robert T. Simon, Thomas J. Conroy, and Lucas A. Whitehill, for Plaintiff and Appellant.
Charmasson, Buchaca & Leach, Rob G. Leach, and Benjamin D. Taggart, for Defendant and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Cary Koffler was walking through a shopping center when an employee of GMI Building Services, Inc., asked him if he would climb into a dumpster and help her break down trash to clear up space. He agreed, and suffered serious injuries when he fell getting out of the dumpster. He sued GMI for negligence, but the trial court sustained GMI's demurrer without leave to amend. Koffler appealed.
After we issued a tentative decision but before we held oral argument, the parties notified us that they had settled the case, and Koffler asked us to dismiss the appeal. We exercise our discretion to dismiss the appeal without reaching the merits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are drawn from Koffler's operative First Amended Complaint (FAC) and we assume they are true. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)
Koffler was walking through Palomar Village, a shopping center maintained by GMI. Mercedes Martinez, a GMI employee whose job required her to maintain the premises, approached Koffler and asked him to help her clean up the mess in and around a dumpster. Martinez asked Koffler to jump into the dumpster to break down trash to clear space so that she could hand him trash around the dumpster. Koffler agreed, and got into the dumpster.
After about five to 10 minutes of compacting trash while Martinez handed him more trash, they agreed the trash in the dumpster was sufficiently compacted. Martinez asked Koffler to help her throw the remaining trash on the ground into the dumpster, so Koffler got out of dumpster. While doing so, his foot slipped from the lip of the dumpster and he fell nearly six feet onto the ground, landing directly on his hip. Koffler was in extreme pain and immediately sought medical treatment. An x-ray revealed that he suffered a fracture on his hip, which required emergency surgery.
Koffler then sued GMI for negligence. Koffler alleged GMA and its employees "had a legal duty to [him] to exercise reasonable care and skill in the direction, management, operation, control, and supervision of the subject dumpster to prevent harm to [him]," and they breached that duty, causing him damages.
Koffler sued other parties, but they are not parties to this appeal.
GMI demurred on the ground that it owed him no duty and, regardless, Martinez's request for Koffler to get into the dumpster was not the proximate cause of his injuries. The trial court sustained GMI's demurrer without leave to amend and entered judgment for GMI. Koffler timely appealed.
III.
REQUEST FOR DISMISSAL
An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), "[o]n receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur." (Italics added.) Thus, dismissal is discretionary. We exercise our discretion and grant Koffler's request to dismiss the appeal.
IV.
DISPOSITION
Koffler's appeal is dismissed. The parties shall bear their own costs on appeal.
We concur: RAMIREZ P. J. McKINSTER J.