Judge: Anne Hwang, Case: 20STCV43498, Date: 2023-09-14 Tentative Ruling

Case Number: 20STCV43498    Hearing Date: September 14, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

            On November 12, 2020, Plaintiffs Noe Navasardian, Karine Bekverdyan, and Grigor Cholakyan (collectively, “Plaintiffs”) filed this action against Defendants Aram Borisovich Javadyan (“Defendant”), Avis Rent a Car System, LLC, Avis Budget Group, Inc., and Does 1 to 50, asserting two causes of action for (1) general negligence and (2) motor vehicle. The Complaint alleges that on or about November 12, 2018, defendants so negligently and recklessly operated and maintained their vehicle that they struck Plaintiffs’ vehicle, causing Plaintiff to sustain property and personal injuries.

            On September 7, 2020, Plaintiffs filed three motions (i.e., each of the three plaintiffs filed a motion) to deem the truth of all matters specified in their Requests for Admission, Set One, propounded on Defendant, admitted.

            On April 19, 2023, Defendant filed his oppositions to the motions.

            On April 19, 20, and 21, 2023, the Court held hearings on the motions to deem Plaintiffs’ requests for admissions admitted and granted them.

            On June 9, 2023, defense counsel Joseph L. Stark & Associates, APC filed a motion to be relieved as counsel for the defendant, stating in its declaration that it had lost contact with the defendant. (See Declaration in Support of Attorney’s Motion to be Relieved as Counsel, MC-052, Item 2.)

            On June 16, 2023, Defendant filed the parties’ joint Stipulation to Continue Final Status Conference and Trial.

            On July 12, 2023, Defendant filed the instant motion to be relieved from the Court’s orders deeming Plaintiffs’ requests for admissions admitted.

            On August 16, 2023, defense counsel filed a Notice of Taking Motion to Withdraw as Counsel Off Calendar.

            On August 31, 2023, Plaintiffs filed their opposition to the motion.

            On September 6, 2023, Defendant filed a reply.

MOTION

            Defendant moves for an order setting aside the Court’s orders deeming Plaintiffs’ requests for admission admitted.

ANALYSIS

“Any matter admitted in response to a request for admission is conclusively established against the party making the admission for purposes of the pending action, unless the court permits a withdrawal or amendment of the admission under section 2033.300. ([Code Civ. Proc.] § 2033.410, subd. (a).) A party may withdraw or amend an admission made in response to a request for admission only with leave of court granted after notice to all parties. (§ 2033.300, subd. (a).)” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1418 (“New Albertsons”).)

“‘The court may permit withdrawal or amendment of an admission only if it determines [1] that the admission was the result of mistake, inadvertence, or excusable neglect, and [2] that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.’ ([Code Civ. Proc.] § 2033.300, subd. (b).)” (New Albertsons, supra, 168 Cal.App.4th at p. 1418 [emphasis added].)

“The statutory language ‘mistake, inadvertence, or excusable neglect’ [citation] is identical to some of the language used in [Code of Civil Procedure] section 473, subdivision (b).” (New Albertsons, supra, 168 Cal.App.4th at p. 1418.) “The use of identical terms in two different statutes serving similar purposes suggests that the Legislature intended those terms to have the same meaning in both statutes.” (Id. at 1419.) “Moreover, the legislative history of [Code of Civil Procedure] section 2033, subdivision (m), the predecessor of section 2033.300, suggests that the Legislature intended ‘mistake, inadvertence, or excusable neglect’ to have the same meaning in the statute as those terms have in section 473, subdivision (b).” (Ibid.)

Under Code of Civil Procedure section 473, subdivision (b), “[t]he test of whether neglect was excusable is whether ‘“a reasonably prudent person under the same or similar circumstances” might have made the same error. [Citations.]’ [Citation.]” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.)

“A ‘mistake’ justifying relief may be either a mistake of fact or a mistake of law. ‘A mistake of fact exists when a person understands the facts to be other than they are; ...’ [Citation.]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.) For example, “[a] mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction.” (Id. at p. 1369.)

Finally, “‘“[t]he inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied.”’” (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414–415.)

The Court finds that Defendant has not established excusable neglect, mistake, or inadvertence with regard to failing to timely respond to Plaintiffs’ Requests for Admissions, Set One. The motion, which is unaccompanied by defense counsel’s declaration, claims that the “Law Offices of MacDonald and Cody were retained to represent [Defendant].” (Motion, p. 2:3-5.) However, the motion does not say who retained that law firm to represent Defendant. Further, Defendant, in his declaration, states he was unaware that there was a law firm representing him. (See Declaration of Aram Borisovich Javadyan, filed July 12, 2023 (“Defendant Decl.”), ¶ 8 [“I started receiving communications from an attorney who claimed to represent me. I had not retained them. I did not respond to the communications”].) Indeed, the Court wonders how the Law Offices of MacDonald and Cody were able to file the Answer on behalf of the Defendant on December 8, 2021, without the Defendant’s knowledge that they were representing him. The motion then states that after they were “retained,” the Law Offices of MacDonald and Cody attempted to make contact with Defendant, and were able to locate the Defendant through an investigator. (Motion, pp. 1:26-2:6.) Again, that information is not in a declaration. The motion then claims that on September 26, 2022, current defense counsel Stark & Assoc. was “associated as counsel for [Defendant].” (Motion, p. 7-10.) However, again, there is no evidence of who retained the current defense counsel. The motion continues that based upon the lack of communication, the current defense counsel was unable to draft and serve responses to Plaintiffs’ written discovery. (Motion, p. 2:11-12.) Defendant testifies that he “did not respond to [his counsel’s] efforts to communicate … because [he] though this matter was being handled by the insurance company that was provided with [his] rental agreement.” (Defendant Decl., ¶ 9.) He also testifies that one of the documents he was given had a Court date, and went to Court that day “in 2022,” spoke to the clerk, but was told nothing there was scheduled with his name and, therefore, he left. (Defendant Decl., ¶ 10.) Defendant then testifies that he “now understand[s] that Stark law office represents [him], and [that he has] an obligation to participate in [his] defense.” (Defendant Decl., ¶ 12.) Defendant argues that he is now fully cooperating at this time. (Reply at pg. 1.) However, the answer was filed on December 8, 2021, and throughout 2022 and 2023, Plaintiffs were put in a position by Defendant of having to litigate the failure to respond to all discovery. Only now does Defendant seek to participate. Defendant does not show that he acted reasonably. A reasonably prudent person in his situation would have kept following up with the case and contacted his alleged attorneys to find out why they had contacted him.

For those reasons, the Court finds it proper to deny the motion.

CONCLUSION AND ORDER

Defendant Aram Borisovich Javadyan’s Motion for Relief from Facts Deemed Admitted is denied.

 Plaintiffs shall provide notice of the Court’s ruling and file a proof of service of such.