Judge: Anne Hwang, Case: 20STCV45486, Date: 2024-04-29 Tentative Ruling

Case Number: 20STCV45486    Hearing Date: April 29, 2024    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

BACKGROUND

On November 25, 2020, Plaintiff Bayron Palacios Lopez (“Plaintiff”) filed a complaint against Defendants Kimberly J. Simone, Brenna Lui, Anita M. Lui, and Does 1 to 100 for negligence stemming from a motor vehicle accident.

On February 18, 2021, the answer was filed.

On February 23, 2021, Plaintiff served Defendant Anita M. Lui (“Defendant”) with Requests for Admissions, Set One. The responses were due March 30, 2021. After several extensions, on May 3, 2021, Defendant responded only with objections to numbers 4, 5, and 23. (Min. Order, 7/28/21.)

On July 28, 2021, the Court granted Plaintiff’s motion to deem admitted matters in Requests for Admissions, Set One, numbers 1–3, 6–22, and 24–35 propounded on Defendant. (Min. Order, 7/28/21.)

On February 28, 2024, Defendant filed the instant motion for relief from the July 28, 2021 order based on equitable grounds. Plaintiff opposes. No reply has been filed.

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿ 

An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿ 

A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.) 

To establish excusable neglect, “the proffered evidence must show that the attorney’s error was excusable. [Citation omitted.] Neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error. [Citations omitted.] Relevant factors in addressing counsel error include: ‘(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.’ [Citation omitted.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.’ [Citation omitted.] ‘To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’ [Citation omitted.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423 [holding that counsel who was overwhelmed and disorganized and misfiled a summary judgment motion and did not calendar the hearing date was not excusable neglect]; see also Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354-55 [“A reasonably prudent person just does not fail to include an essential request for continuance and an accompanying affidavit in an opposition to a summary judgment motion. As in Garcia, Ambrose does not argue that the mistake was caused by a glitch in office machinery or an error by clerical staff. Rather, Ambrose points to the ‘stresses of a busy law practice,’ the ‘hurry to meet the deadline,’ and ‘several concurrent obligations due to other pending litigation.’”].) “The distinction in the statute noted by the Supreme Court’s use of the term ‘reasonably prudent person’ describes the obvious intent of the Legislature to mandate relief only from mistakes fairly imputable to the client, i.e., mistakes anyone could have made. The Legislature did not intend to eliminate attorney malpractice claims by providing an opportunity to correct all the professional mistakes an attorney might make in the court of litigating a case.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400.)

The discretion of the Court “is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 [citation and quotations omitted].) “The policy that favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief.” (Id. at 900.)

DISCUSSION

As an initial matter, as noted by Plaintiff in opposition, the pre-trial motion cut-off date in this matter is associated with the trial date of March 25, 2024. Since that date has passed and Defendant has not moved to extend the cut-off date, the motion is improper. Nevertheless, the Court will discuss the merits of the motion below.

Defendant asks the Court to set aside the July 28, 2021 order on equitable grounds. Relief under section 473(b) is not available since this motion was filed more than six months after the order. In any event, the Court could not grant this motion based on section 473(b) because Code of Civil Procedure section 2033.300 provides a method for relief from an order deeming the truth of admissions. (See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979; Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107 [“Relief under section 473 is unavailable when the discovery act provides analogous, if more limited relief.”]. However, Defendant does not discuss section 2033.300 in her motion.

Defendant outlines the following timeline of events. Defendant was originally represented by “house counsel” when discovery was propounded in February 2021. The parties agreed to an extension because at that time counsel could not locate Defendant. (Motion, 4.) The motion to deem admitted was served only on prior counsel on June 17, 2021. Defendant asserts that Plaintiff was informed that Defendant had new counsel on May 25, 2021, however, Defendant did not file a substitution of attorney form with the Court until August 5, 2021. This form shows that Defendant was now being represented by the firm Gates, Gonter, Guy et al. Defendant is currently represented by this firm. Once the case was transferred, it was assigned to Carter Taylor at Gates, Gonter, Guy.

Taylor declares that in June 2021, he obtained copies of Plaintiff’s discovery motions but did not oppose them because he was unaware his office needed to oppose them and did not know there was outstanding discovery due; he thought that Defendant’s prior counsel would oppose the motions. (Taylor Decl. ¶ 5.) Taylor declares that at the time the motion was filed, his firm was not yet substituted into the case. (Id. ¶ 4.) He also states the motions were not placed into the calendaring system, and thus there was no notification when the opposition was due. (Id. ¶ 6.) He blames this for being a provisionally licensed attorney at the time with limited experience. (Id.) On July 14, 2021, Taylor learned that Defendant lived in Hong Kong and was working to obtain verifications before the hearing but was unsuccessful. (Id. ¶ 7–9.) After the hearing on July 28, 2021, Taylor declares he did not file a motion for relief because he “did not know what to do.” (Id. ¶ 14.)

After Taylor left the firm in December 2021, the case was assigned to Warren Crowley who was similarly inexperienced. Current counsel Elham Rabbani was assigned this case in mid-April 2022. (Rabbani Decl. ¶ 4.) Defendant filed a motion for relief which was denied on July 19, 2022, since the motion did not contain declarations from Taylor and Crowley. (Id. ¶ 8.) Taylor was unresponsive to attempts to secure a declaration. (Id. ¶ 10.) Afterward, the parties began settlement talks, and Rabbani forgot about the order. (Id. ¶ 11.) On February 12, 2024, Plaintiff raised the issue of the deemed admissions, and Defendant brought this motion, securing a declaration from Taylor. (Id. ¶ 12–13.)

Defendant has not addressed all the elements for seeking equitable relief, even if it were available. Defendant has not discussed whether she has a meritorious case or whether counsel demonstrated diligence after discovering the order. Here, former counsel Taylor declared he attended the hearing and therefore knew that the order was granted. Yet, he did not move for relief because he “did not know what to do.” (Taylor Decl. ¶ 14.) Defendant does not cite to authority that an attorney’s inexperience constitutes excusable neglect or is a satisfactory excuse to warrant equitable relief. Defendant has not established that a reasonably prudent person in similar circumstances might have made the same error. The Carter declaration provides no facts that he ever asked for advice on how to respond to the order. Therefore, the facts do not show that counsel demonstrated diligence.

  Instead, Defendant primarily argues that because Defendant is the only defendant with deemed admissions, it is unclear how the contradictory admissions among the co-defendants will affect trial. However, this does not address the elements required for equitable relief.

Even if the Court were to apply section 2033.300, Defendant would still have to show “that the admission was the result of mistake, inadvertence, or excusable neglect, and 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(b).) The “mistake, inadvertence, or excusable neglect” under section 2033.300 has similar meanings as those words used in Code of Civil Procedure section 473(b). (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.)¿¿Under section 473(b), the error must be “excusable” which means whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Solv-All v. Superior Court¿(2005) 131 Cal.App.4th 1003, 1007.)  

Because Defendant has not shown that inexperience of counsel in this case was “excusable neglect”, the motion for relief is denied.

CONCLUSION AND ORDER

Therefore, the Court DENIES Defendant’s motion for relief from the Court’s July 28, 2021 order.   

Defendant to provide notice and file a proof of service of such.