Metropolitan News-Enterprise


Thursday, January 29, 2009


Page 1


Court Affirms Dismissal for Disabled Lawyer’s Failure to Appear


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday upheld dismissal sanctions against a disabled Moorpark attorney proceeding in pro per who claimed he was unable to adhere to the trial schedule due to his disabilities and then failed to appear on the fifth day of proceedings.

In light of Aaron Stites’ repeated efforts to slow the pace of the trial, Div. Seven ruled in an unpublished decision, Los Angeles Superior Court Judge Joanne O’Donnell did not abuse her discretion in dismissing Stites’ claims against the Promus Hotel Corporation.

Stites told the MetNews yesterday that he suffers a “neurological condition.”  He wears braces on his legs, experiences pain in his hands, and utilizes the assistance of a service dog. He filed suit in 1999 against a hotel chain and other businesses alleging that the defendants had denied him accommodations because of his service dog before he was admitted to the State Bar.

On the date set for trial, the parties addressed pretrial matters, but many had to be postponed because Stites represented that he was not prepared to address them.

Towards the end of the day, Stites complained to the trial judge that “what we are doing is a huge amount of work,” and complained he was not physically capable of handling the workload.

O’Donnell offered to accommodate Stites as appropriate, provided that Stites made his needs known, Justice Laurie Zelon explained for the Court of Appeal. But the trial judge warned him that if the case proceeded to a jury trial, “we are going to be working, really, really hard” adding: “[t]hat’s what happens in trial.”

Late for Court

The following day, Stites did not appear on time. Kevin Gerry, one of two attorneys assisting Stites, told the trial court that he was unaware of Stites’ location. Gerry promised to file an association as counsel later that day and the pretrial matters continued with Gerry representing Stites.

Stites entered the courtroom 15 minutes later and denied Gerry represented him. He then requested that the trial court accommodate him by scheduling three-day weeks for the trial.

O’Donnell asked if the accommodation could be granted while still keeping the trial within the 20-day estimate which had been given to the jury. When Stites did not answer immediately, O’Donnell chastised him by saying he “should have thought about these things before.”

She then denied his request as untimely, commenting:

“You can’t be coming in here the day after trial is set to begin and demand a whole new schedule based on your disability.”

‘Down Time’

Stites also asked O’Donnell to reconsider her order that Gerry associate in as counsel, but O’Donnell declined, commenting that in light of Stites’ statement of his need to have “down time,” the presence of the two lawyers to assist Stites was part of the accommodation he required.

As the trial court proceeded to consider pretrial matters, Stites reported that he had been unable to prepare the first motion in limine and asked for more time to prepare counter evidence, claiming that “[y]esterday just really drained me,” and that he was experiencing pain in his hands.

O’Donnell told him “your difficulties are entirely of your own making, as the court sees it.”

The following day, Stites submitted and served a request for accommodations for his disability, but O’Donnell dismissed the request as untimely for the same reasons she had given orally the day before. She also noted that Stites had not provided any medical support for his disability claims or for the reasonableness of the accommodations he sought.

Short Week Request

The next day, Stites filed another request for accommodation, requesting a 10 to 4 court schedule and a four-day work week. O’Donnell denied the request based upon its impact on the number of days spent in trial. She again noted that Stites had failed to make a showing regarding his disability or his needs as a result of that disability.

The following morning, Stites failed to appear. Gerry reported that Stites’ brother had called to tell him Stites had collapsed and sustained a head injury. Defense counsel expressed strong doubts as to the veracity of the report.

O’Donnell observed it was “unusual” for Stites to have asked for the day off and then to fail to appear. She ordered that Stites would need to provide a declaration under penalty or perjury from his treating physician, including any orders for medications or further treatment and a prognosis, or else the case would be dismissed.

Gerry appeared the following morning and said he was unable to speak to any medical personnel or obtain the documentation the trial court had requested. O’Donnell then dismissed Stites’ case for failure to prosecute and later awarded defendants $422,497.04 in costs.

Although the trial judge had referred to the dismissal as being for a failure to prosecute,  Zelon reasoned that the trial court’s characterization of the default as a failure to prosecute denoted Stites’ failure to appear at trial to try his case and treated the dismissal as one for a failure to appear.

Zelon explained that the trial court was not obligated to provide Stites with any opportunity to be heard before dismissing his action because his failure to appear was grounds enough for dismissal.

Allowing Stites an opportunity to establish he had a true medical emergency was an exercise of discretion, not a requirement of due process, Zelon continued.

Absent admissible evidence that Stites had good cause for failing to appear or that a lesser sanction would have been appropriate, Zelon concluded that the trial court did not commit any error or depravation of due process in dismissing the case.

Presiding Justice Dennis M. Perluss and Justice Frank Y. Jackson joined Zelon in her opinion.

Stites expressed disappointment yesterday when told of the appellate court’s decision.

“I never before failed to appear, and I diligently prosecuted the case,” he said. “It was really an incredible effort, and that’s not hyperbole.”

Prior to trial, Stites obtained issue and evidentiary sanctions against the defendants in a hearing before Los Angeles Superior Court Judge Mel Red Recana, a copy of which he provided to the MetNews. The sanctions were based on Recana’s finding that Promus and its parent company, Hilton Hotels Corporation, had concealed and destroyed evidence related to service dog discrimination complaints.

“I fought like crazy to get this order,” Stites said.

In addition, he claimed that he had participated in 42 depositions and made over 100 court appearances in the matter before being hospitalized during the trial.

“This was the first time I failed to appear,” Stites declared, maintaining that he was at a Kaiser Permanente hospital the day he had failed to appear and that his brother had faxed a document with a handwritten note by the emergency room physician stating that Stites was unable to attend court.

“When you have a defendant that has concealed and destroyed evidence and a plaintiff who diligently prosecuted the case, the court needs to slow down and take a look at what’s going on here,” Stites insisted. “I think it sends the wrong message to the public about how cases are handled in our court.”

Although he acknowledged “it’s a tough road going to the California Supreme Court,” Stites said “that’s something I want to consider.”

Jonathan Solish, Glenn J. Plattner and Shelly Gopaul of Bryan Cave LLP represented the defendants. They could not be reached for comment.

The case is Stites v. Promus Hotel, B199983


Copyright 2009, Metropolitan News Company