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Snafu Burns Payless
by Ron Davis

A legal technicality has foiled an attempt to financially penalize a woman who sued a California shopping center and 16 of its tenants.

The shopping center, located in Los Angeles, was the target of the woman’s lawsuit, as was 16 of the center’s tenants. She claimed that they were to blame for an injury she suffered in the center’s parking lot. Her injury occurred when she slipped and fell after stepping on a banana peel in the lot.

Shortly after filing her negligence lawsuit, however, she amended her complaint so that it dismissed the charges against six of the tenants. One of those six was Payless Shoesource, Inc., which operates a retail store at the shopping center.

Although the woman did not formally serve Payless with the original legal complaint, her lawyers did mail Payless a notice and acknowledgment. Payless duly responded.

Then when the woman deleted the six tenants from her lawsuit, she neglected to state that she was dismissing the complaint against them. As a result, the court rejected the request for dismissal.

Unaware of the legal snafu, Payless, as allowed by California law, filed for the costs incurred in protecting itself in a lawsuit. In reply, the woman pointed out that in rejecting the request for dismissal, the court should also dismiss the Payless attempt to recover its costs.

A California court disagreed with the woman’s argument and awarded Payless the costs it sought. The woman appealed.

A California appellate court, in overruling the lower court, explained, “Payless suggests that it is being penalized for the woman’s failure to properly complete her request for dismissal. We understand that Payless was in a confusing posture not entirely of its own making. But the procedures for obtaining costs are technical and mandatory. Payless did not receive notice of entry of dismissal and could have contacted the court to determine whether dismissal had been entered.... We cannot ignore the procedures required by law and court rule for obtaining a costs award. Payless’ failure to comply is fatal to its right to recover.” (Boonyarit v. Payless Shoesource, Inc., 2006 WL 3718253 [Cal.App.2 Dist.])

Decision: December 2006
Published: February 2007



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