Case Number: 19STCV29010    Hearing Date: May 9, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Abraham Lopez sues, among others, former employer Defendants Alexander Demolition and Hauling (Alexander Demo) and its owner and operator Felipe Davila—with all the Defendants tied together through allegations of integrated enterprise—pursuant to various claims, including: (1) Retaliation under Qui Tam/California False Claims Act on the grounds that, inter alia, Plaintiff Abraham Lopez blew the whistle against the Defendants’ violation of the AB 939 (requiring Solid Waste Haulers pay 10% of Gross Annual Receipts for landfill disposal of materials exceeding 1,000 tons per year) where the Defendants instructed waste drivers to lie in various ways to avoid meeting the 1,000 ton limit; (2) Disability Discrimination under the Fair Employment and Housing Act (“FEHA”) based on discrimination against Abraham Lopez as a result of his stress eating, weight, and emotional eating; (3) FEHA Failure to Reasonably Accommodate or Engage in the Interactive Process as to Plaintiff Abraham Lopez’s protected conditions; (4) FEHA Retaliation on various grounds, including disabilities, reporting of harassment, and whistleblowing; (5) FEHA Harassment; (6) Failure to Prevent FEHA Discrimination, Harassment, and Retaliation; (7) Wrongful Termination—either directly or constructively—on January 19, 2018; (8) Labor Code Whistleblower Retaliation; (9) Labor Code Failure to Provide or Pay Meal and Rest Breaks; (10) Labor Code Non-Payment of Wages; (11) Labor Code Failure to Provide Itemized Wage Statements; (12) Labor Code Failure to Pay Wages Upon Discharge and Associated Penalties; (13) Common Law Assault and Battery by ratification of conduct of a supervisor named “John” in grabbing at Plaintiff Abraham Lopez’s chest and making comments to the effect that Abraham Lopez had breasts like a girl, inter alia; (14) Negligent Hiring and Retention of John; (15) Intentional Infliction of Emotional Distress based on the foregoing torts against and violations of the rights of Plaintiff Abraham Lopez; and (16) Violation of Business and Professions Code section 17200, et seq. through the ABA 939 and Labor Code violations described ante. The initial Complaint was filed by Plaintiff Abraham Lopez on August 16, 2019, and his First Amended Complaint thereto was filed on August 5, 2020.

In turn, Defendants Alexander Demo—a Solid Waste Hauler company that disposes(d) of solid, construction, and demolition waste in landfills—and Felipe Davila—owner and operator of Alexander Demo—filed a December 5, 2022 Cross-Complaint against Plaintiff/Cross-Defendant Abraham Lopez and Cross-Defendants Omar Lopez (Abraham’s Lopez’s brother and his alleged Supervisor while employed by Alexander Demo and the other Defendants), Elias Gonzalo Davila (Felipe Davila’s brother, who owned a stake in Alexander Demo from 2006 to 2016 but later sold this to Felipe Davila), and L.D. Construction and Demolition (company competing with Alexander Demo founded by Abraham and Omar Lopez [Lopez Brothers] and Elias Gonzalo Davila, to which the Lopez Brothers and Elias Gonzalez Davila allegedly redirected money, equipment, and clients belonging to Alexander Demo). The Cross-Complaint alleges: (1) Tortious Claim for Breach of the Employee’s Duty of Loyalty (essentially, Breach of Fiduciary Duty) against Plaintiff Abraham Lopez and Oscar Lopez based on the Lopez Brothers allegedly stealing, taking, or otherwise misusing funds, monies, and property belonging to Alexander Demo, removing documents from Alexander Demo to cover their acts, and redirecting clients to L.D. Construction; (2) Breach of Fiduciary Duty against Gonzalo Davila based on the same or similar conduct; (3) Conversion against all Cross-Defendants based on the foregoing conduct; (4) Fraud against all Cross-Defendants based on misrepresentations or concealments relating to misuse of Alexander Demo monies and documents, inter alia; and (5) Intentional Infliction of Emotion Distress (IIED) against the Cross-Defendants based on the Cross-Defendants’ conduct, including allegations of extortion of Felipe Davila by the individual Cross-Defendants.

On August 4, 2022 and in relevant part, Plaintiff Lopez propounded Request for Admissions, Set One from Defendant Murillo Construction.

On August 23, 2022 and in relevant part, Murillo Construction moved for a protective order against Requests for Admission, Set One, set for hearing on March 29, 2023.

On August 25, 2022, Murillo Construction moved for summary judgment of the claims against it in Plaintiff Lopez’s FAC, set for hearing on April 27, 2023, but later continued to August 25, 2023.

On November 4, 2022, based on Murillo Construction’s nonresponse to the admissions request, Plaintiff Lopez moved for a court order deeming Request for Admissions, Set One admitted, set for hearing on January 9, 2023.

On November 30, 2022, the Court advanced and continued the March 29, 2023 hearing on motion for protective order to January 27, 2023.

On the same day, the Court advanced and continued the January 9, 2023 hearing on the motion to deem RFAs admitted to January 27, 2023.

On January 3, 2022, Plaintiff Lopez opposed the August 23, 2022 protective order motion.

On January 17, 2023, Murillo Construction replied to the January 3rd opposition.

On January 20, 2023, the Court advanced and continued the January 27th hearing on the motion for protective order and motion to deem RFAs admitted to March 3, 2023.

On March 3, 2023, the Court heard, among other things, the August 23, 2022 motion for protective order by Murillo Construction and the November 4, 2022 deem RFAs admitted motion by Plaintiff Lopez, granting the deem RFAs admitted motion as to Lopez’s Requests for Admission, Set One, No. 1 only, and denying Murillo Construction’s motion for protective order.

On April 3, 2023, Murillo Construction moved to withdraw the court-imposed admission of Requests for Admission, Set One, No. 1, which admitted that Murillo Construction had employed Plaintiff Lopez.

On April 25, 2023, Plaintiff Lopez opposed the April 3rd motion.

On April 26, 2023, Murillo Construction replied to the April 25th opposition.

The motion to withdraw admission is now before the Court.

Request for Judicial Notice

The Court TAKES Judicial Notice of the existence of (1) the Court’s March 3, 2023 minute order and (2) Murillo Construction’s Requests for Admission, Set One, No. 1 response. (Mot., RJN, p. 2, Exs. 1-2; see Evid. Code, § 452, subds. (d), (h), 453.)

Preliminary Observation

While Murillo Construction moves for a court order withdrawing its court-imposed admission to Requests for Admission, Set One, No. 1, Murillo Construction frames its request pursuant to Code of Civil Procedure section 2033.280, subdivisions (a)(1)-(2)—motion for relief from waiver of objections to requests for admission—rather than Code of Civil Procedure section 2033.300, subdivision (b)—motion to withdraw party admission or court-imposed admission. The Court analyzes this motion under the appropriate statutory section: Code of Civil Procedure section 2033.300, subdivision (b).

Motion to Withdraw Court-Imposed Admission, RFAs Set One, No. 1

Legal Standard

A party may withdraw or amend “deemed admissions” ordered by the court under Code of Civil Procedure section 2033.280, subdivision (b), or admissions expressly made by a party, only on leave of court granted after notice to all parties. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979; see Code Civ. Proc., § 2030.300, subd. (a).)

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., § 2030.300, subd. (b).)

The court may impose conditions on the granting of the motion that are just, including, but not limited to, (1) an order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission and (2) an order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission. (Code Civ. Proc., § 2030.300, subds. (c)(1)-(2).)

The Court must interpret the discovery code consistent with the spirit of the law and in a matter that serves the interests of justice and the policy favoring trial on the merits. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783-784.) Any doubts as to the showing of mistake, inadvertence or neglect must be resolved in favor of the moving party. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420 [in the context of motion for relief from admissions to RFAs].)

Analysis

I. Mistake, Inadvertence, Excusable Neglect

The terms “mistake, inadvertence, or excusable neglect” as used in Code of Civil Procedure section 2033.300, subdivision (b), are given the same meanings as similar terms found in Code of Civil Procedure section 473, subdivision (b). (New Albertsons, Inc. v. Superior Court (Shanahan) (2008) 168 Cal.App.4th 1403, 1418.)

Murillo Construction first argues that its failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect because counsel genuinely believed that he was not required to provide any discovery responses on behalf of Murillo Construction after filing the August 23, 2022 motion for protective order to, in relevant part, the August 3rd Requests for Admission by Plaintiff Lopez. (Mot., p. 6.) This position is supported by a declaration from Freddie V. Vega, counsel for Murillo Construction, providing that “[he] was under the mistaken belief that [he] was not required to submit any responses to Mr. Lopez’s discovery requests until his client’s [i.e., Murillo Construction’s] Motion for Protective Order was heard.” (Mot., Vega Decl., ¶ 8.)

In opposition, Plaintiff Lopez argues that this ‘mistaken belief’ argument, pursuant to case law, (1) does not fall under the ambit of “mistake, inadvertence, or excusable neglect” (2) is not reasonable, (3) does not involve a complex or debatable legal issue or principle, (4) was negligent based on a failure to determine the applicable law as to this issue , (5) is unjustifiable, (6) is not availing where counsel knew the admissions requests were served, was put on notice of Plaintiff Lopez’s motion to deem them admitted, and still failed to respond until well after the Court deemed the Requests for Admission, Set One, No. 1 admitted, and (7) ignorance of the law coupled with negligence does not excuse a failure to research the law in a four month period. (Opp’n, pp. 6-11.)

In reply, Murillo Construction does not clearly argue these points but does provide another declaration from counsel arguing that “it behooves [sic] [Murillo Construction’s counsel] as to why [Plaintiff’s counsel] are of the opinion that [Murillo Construction’s counsel] honest mistake actually constitutes inexcusable neglect when [Murillo Construction’s counsel] mistakenly believed that [he] was not required to [provide] any responses on behalf of [Murillo Construction] until [Murillo Construction’s] Motion for Protective Order was heard and ruled []on.” (Reply, Vega Decl., ¶ 14; see Reply generally.)

The Court finds that Murillo Construction’s counsel’s failure to respond to Requests for Admission, Set One arose from a mistake or excusable neglect.

While, in an abundance of caution, Murillo Construction’s counsel should have, as a matter of best practice, filed an opposition to the November 4th motion to deem Requests for Admission, Set One admitted, counsel was under the mistaken impression that “[he] was not required to submit any responses to Mr. Lopez’s discovery requests until his client’s [i.e., Murillo Construction’s] Motion for Protective Order was heard.” (Mot., Vega Decl., ¶ 8.) The Court finds this reasoning sufficient because if Murillo Construction’s counsel had opposed the November 4th motion to deem Requests for Admission, Set One admitted simply on the grounds that this request was beyond the proper scope of discovery and the Court had nevertheless granted the motion to deem RFAs admitted, the practical effect of such a ruling would be the same as what actually happened, i.e., the Court denied a protective order against this discovery and granted the motion to deem RFAs admitted. It would be contradictory if the Court were to grant relief for Murillo Construction if it had unsuccessfully opposed the motion to deem RFAs admitted based on the ground that the request was beyond the scope of discovery but not where Murillo Construction only moved for a protective order against Requests for Admission, Set One. The reason for this conclusion is that the practical effect of the hypothetical opposition to the motion to deem RFAs admitted and the actual motion for protective order had the same general aim: prohibits discovery as to, in relevant part, Requests for Admission, Set One. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [Generally, if a court grants a motion for a protective order, it can prohibit discovery of all discovery sought by the propounding party or permit the discovery of some of what the propounding party sought and set terms and conditions to alleviate the burden of discovery, such as requiring confidentiality or prohibiting use outside the case.].)

The Court also finds it worth noting that Murillo Construction’s motion for protective order was filed on August 23, 2022—i.e., 19 days after service of Requests for Admission, Set One and exactly six weeks before the motion to deem RFAs admitted was made by Plaintiff Lopez on November 4, 2022—such that Murillo Construction was not dilatory in attempting to shield itself from Plaintiff Lopez’s Requests for Admission, Set One.

II. Prejudice

To establish prejudice, requesting parties must do more than assert that, without benefit of the admission, they will have to convince the fact finder of a matter previously conceded; rather, they must prove that they are less able to assemble the evidence needed to establish the matter involved in the admission than they were when the admission was made. (1 Modern California Discovery (4th ed.) Requests for Admission, § 9.15; Moore & Thomas, California Civil Practice: Procedure (2023) Cal. Civ. Prac. Procedure § 13:178 [citing Modern California Discovery].) California courts have found no substantial prejudice existed where the party opposing withdrawal of the admission failed to explain what additional discovery they would have pursued absent the admission and where the trial court has discretion to allow additional discovery on the issue, including by continuing trial or imposing other conditions on the granting of the motion to withdraw the admission. (New Albertsons, Inc. v. Superior Court (Shanahan), supra, 168 Cal.App.4th at p. 1421.) However, withdrawal or amendment of an admission will not be allowed simply because the other side has not been prejudiced. (See Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, 660; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900.)

In its motion, Murillo Construction argues that Plaintiff Lopez would not be prejudiced by withdrawal of the court-imposed admission to the August 4th Requests for Admission, Set One, No. 1—admitting to having employed Plaintiff Lopez—for two reasons. Murillo Construction argues that it is instead Murillo Construction that would be prejudiced by a maintenance of this court-imposed admission where the purpose of requests for admission is to clarify contested facts to expedite trial, and here, Murillo Construction’s RFA response denies ever having employed Plaintiff Lopez. (Mot., pp. 6-7; see Mot., RJN, Ex. 2.)

In opposition, Plaintiff Lopez argues that he will suffer substantial prejudice if the Court permits withdrawal of Requests for Admission, Set One, No. 1 for several reasons. First, Plaintiff Lopez argues that Murillo Construction has failed to address the substantial prejudice element, providing a ground to deny this motion. (Opp’n, p. 12.) Second, Plaintiff Lopez argues that the court-imposed admission is vital to Plaintiff’s case insofar as it amounts to an undisputed admission that Murillo Construction employed Plaintiff Lopez. (Opp’n, p. 12.) Third, Plaintiff Lopez argues that withdrawal of the admission would undercut Plaintiff’s forthcoming opposition to a motion for summary judgment by Murillo Construction that argues that Murillo did not employ Plaintiff and is therefore not liable to Plaintiff for the claims alleged in the Complaint. (Opp’n, pp. 12-13.) Fourth, Plaintiff Lopez argues that withdrawal of this admission would force Plaintiff Lopez to conduct substantial additional discovery to oppose the summary judgment motion, where Plaintiff “anticipate[s] 92 hours of work” would be required as to the issue of whether Murillo Construction employed him, including “two depositions, further written discovery, preparing for and defending Plaintiff’s deposition, and opposing Defendant’s motion for summary judgment.” (Opp’n, p. 13.) Fifth and last, Plaintiff Lopez argues that the substantial amount of work, time, and money expended to obtain the court-imposed admission and respond to this motion amount to substantial prejudice. (Opp’n, p. 13.)

In reply, Murillo Construction argues that the prejudice to Murillo Construction outweighs any prejudice to Plaintiff Lopez. (Reply, pp. 4-5.)

The Court finds that insufficient substantial prejudice exists against Plaintiff Lopez.

The type of substantial prejudice at issue involves a diminished ability to assemble the evidence needed to establish the matter involved in the admission than that which existed when the admission was made. (1 Modern California Discovery (4th ed.) Requests for Admission, § 9.15; Moore & Thomas, California Civil Practice: Procedure (2023) Cal. Civ. Prac. Procedure § 13:178 [citing Modern California Discovery]; see New Albertsons, Inc. v. Superior Court (Shanahan), supra, 168 Cal.App.4th at p. 1421.)

Such prejudice does not exist here for various reasons. First, the Court has the power to extend the discovery as to whether Murillo Construction in fact employed Plaintiff Lopez. (See New Albertsons, Inc. v. Superior Court (Shanahan), supra, 168 Cal.App.4th at p. 1421.) Second, arguments of prejudice by Plaintiff Lopez ring somewhat hollow where he filed this action in August 2019, with his First Amended Complaint filed on August 5, 2020. (See Complaint and FAC, p. 1.) Plaintiff Lopez hardly explains in his opposition why, between August 2019, when he filed this action, and August 2022, when he propounded Requests for Admission, Set One, he was not able to sufficiently propound discovery establishing that Murillo Construction employed him. Third and last, the Court could, if appropriate, continue (1) the February 27, 2024 trial in this action or (2) the August 25, 2023 hearing on Murillo Construction’s motion for summary judgment to permit Plaintiff Lopez, in fairness, to conduct further discovery as to his alleged employment with Murillo Construction. (See Code Civ. Proc., § 128 [The court has inherent power to control the litigation process].) Here, Plaintiff Lopez’s opposition to Murillo Construction’s motion for summary judgment is not even due until August 11, 2023, i.e., in more than three months. Should Plaintiff Lopez require additional time to conduct discovery before these proceedings, the Court could accommodate him upon a showing of good cause.

III. Withdrawal Conclusion

The Court is satisfied that the March 3, 2023 court-imposed admission of Requests for Admission, Set One, No. 1 on Murillo Construction was the result of a mistake or excusable neglect and that Plaintiff Lopez would not be substantially prejudiced as a result of its withdrawal.

Murillo Construction’s motion is therefore GRANTED.

IV. Conditions of Relief

IV.A. Responses to Requests for Admission, Set One, No. 1

Murillo Construction provides evidence that it has filed a response to Requests for Admission, Set One, No. 1 on March 24, 2023. (See Mot., RJN, Ex. 2, Proof of Service.) A review of this response shows that it answers DENY to the Request for Admission as to whether it employed Plaintiff Lopez. (Mot., RJN, Ex. 2.) Such a response is code-compliant because responses to RFAs are “unquestionably code compliant” when they consist of one-word “Admit” or “Deny” responses. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 780.)

The Court therefore does not find the need to order Murillo Construction to answer Requests for Admission, Set One, No. 1.

Further, as a condition of relief for this motion, the Court ALLOWS PLAINTIFF TO COMPEL FURTHER DISCOVERY as to Requests for Admission, Set One, No. 1.

IV.B. Monetary Sanctions and Other Monetary Relief

In opposition to this motion, Plaintiff Lopez requests compensation for 92 hours of expected work that Plaintiff’s counsel will have to undertake if this Court were to withdraw the court-imposed admission to Requests for Admission, Set One, No. 1, i.e., an expected $96,800.00. (Opp’n, p. 14.) Plaintiff Lopez also requests compensation for 21 hours of work undertaken by counsel to propound Requests for Admission, Set One and opposing this motion, totaling $17,107.26. (Opp’n, pp. 14-15.) Last, Plaintiff Lopez requests $3,607.26 in monetary sanctions against Murillo Construction and its counsel pursuant to Code of Civil Procedure section 2023.030, subdivision (a)—misuse of the discovery process—based on Murillo Construction bringing this motion without substantial justification and for failure to argue the correct standard for relief. (Opp’n, p. 15.)

In reply, Murillo Construction argues that any sanctions against it should be reduced significantly because the March 3, 2023 order by this Court granting Plaintiff Lopez’s motion to deem Requests for Admission, Set One admitted was granted only as to one out of 72 total admissions. (Reply, p. 5.)

The Court DECLINES to award fees for 92 hours of expected work by Plaintiff’s counsel in securing discovery from Murillo Construction relating to whether Murillo Construction employed Plaintiff Lopez. The primary reason for this denial is that the Court is not satisfied that Plaintiff did not have the ability to obtain such discovery—beyond a court-imposed admission as to this subject—between the time be filed this action in August 2019 and the time Requests for Admission, Set One were propounded on Murillo Construction in August 2022. Based on this dilatory conduct, the Court finds that it is not unjust to have Plaintiff bear the burden of such discovery, especially where the admission at issue was only imposed by the Court on Murillo Construction on March 3, 2023, i.e., more than three and a half years after this litigation was commenced by Plaintiff Lopez but only a month prior to Murillo Construction seeking its withdrawal on April 3, 2023.

The Court also DECLINES to award monetary sanctions pursuant to Code of Civil Procedure section 2023.030, subdivision (a), because Murillo Construction’s filing of this motion was not an abuse of the discovery process or unjustified, even if Murillo Construction did not frame its motion and reply within the proper standard for relief—i.e., reliance on Code of Civil Procedure section 2033.280, subdivision (a), rather than the correct Code of Civil Procedure section 2033.300, subdivision (b).

However, the Court finds it proper to award monetary sanctions against Murillo Construction for the work undertaken by Plaintiff’s counsel to (1) deem Requests for Admission, Set One, No. 1 admitted and (2) oppose this motion. The Court AWARDS to Plaintiff Lopez (1) $3,375 for work performed by counsel Franck and Cummings in obtaining the admission—the requested amount of $13,500 divided by four, where only some of this work related to Requests for Admission, Set One, No. 1—and (2) $3,607.26 for work performed by counsel Butzen in opposing this motion. (See Opp’n, pp. 14-15 [seeking $17,107.26 for work performed by counsel obtaining admission and opposing this motion]; see also Opp’n, Franck Decl., ¶¶ 21-26 [explaining grounds for $13,500 in fees sought by Plaintiff in securing admission to Requests for Admission, Set One, No. 1]; Opp’n, Butzen Decl., ¶ 12 [seeking $3,607.26 for work expended opposing this motion].)

Plaintiff’s total monetary recovery is thus $6,982.26.

IV.C. Continuance of Trial or Summary Judgment Motion

Should Plaintiff Lopez wish to apply or move for a continuance of the February 27, 2024 trial in this action or the August 25, 2023 hearing on Murillo Construction’s summary judgment motion, the Court would consider such request upon a proper showing of good cause.

Conclusion

Defendant Murillo Construction & Clean-Up, Inc.’s Motion to Be Relieved Relief from Deemed Admission Number 1, Set One is GRANTED insofar as it seeks withdrawal of this RFA because (1) sufficient grounds and evidence were presented by Murillo Construction to show that the court-imposed admission of Requests for Admission, Set One, No. 1 was the result of counsel’s mistake or excusable neglect and (2) insufficient grounds or evidence of substantial prejudice to Plaintiff Abraham Lopez were presented for this Court to justify denying this motion.

However, Murillo Construction is ORDERED TO REMIT PAYMENT of $6,982.26 to Plaintiff Abraham Lopez WITHIN 30 CALENDAR DAYS to compensate Plaintiff for counsel’s work securing Requests for Admission, Set One, No. 1 and opposing this motion.

Further, as a condition of relief for this motion, the Court ALLOWS PLAINTIFF TO COMPEL FURTHER DISCOVERY as to Requests for Admission, Set One, No. 1.