Defendant Red Lobster Hospitality, LLC’s Motion for Relief from Order Deeming Requests for Admissions Admitted 

Having considered the moving, opposing and reply papers, the Court rules as follows.  

 

BACKGROUND 

On November 3, 2021, Plaintiffs Melissa Randazzo (“Randazzo”) and David Ontiveros (“Ontiveros”) filed this action against Defendants RFP Red Lobster, LLC (“RFP”), Red Lobster Hospitality, LLC (“RLH”), Red Lobster Management, LLC (“RLM”) and Terry Bainbridge (“Bainbridge”) for premises liability, general negligence and loss of consortium.  

On February 3, 2022, Defendants filed an answer. 

On February 17, 2023, RLH filed a Motion for Relief from Order Deeming Requests for Admissions Admitted to be heard on April 10, 2023. On March 27, 2023, Plaintiffs filed an opposition. On April 3, 2023, RLH filed an answer.  

Trial is currently scheduled for October 5, 2023.  

 

PARTY’S REQUESTS 

RLH requests the Court relieve RLH from the order deeming the request for admissions admitted.  

Plaintiffs request the Court deny the motion. 

 

LEGAL STANDARD 

“Section 473(b) provides for both discretionary and mandatory relief.  [Citation.]”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  The discretionary provision grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect.   The discretionary provision states in pertinent part:  

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  

The mandatory provision states in pertinent part:   

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” 

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.  [Citation.]”  (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.) 

CCP §473(b) does not apply setting aside mandatory dismissal entered pursuant to §583.250. (Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078.) 

 

DISCUSSION 

RLH’s application was filed within 6 months of entry of the order. 

RLH’s counsel submitted a declaration stating that previous handling attorney failed to fulfill his obligations in handling this case. The previous attorney failed to communicate that discovery had been propounded, that Plaintiffs were still awaiting response, or that there were motions to compel discovery on calendar. He left the firm in November 2022 without informing any other attorney about the still pending discovery. RLH’s counsel only learned of this discovery on December 6, 2023, after the first motion had been heard. The Court finds that the failure to serve responses prior to the hearing on the motion was due to both the previous handling attorney’s neglect and current counsel’s excusable neglect or mistake in failing to review and check the file upon receipt. RLH has met the base requirements for discretionary relief. 

Since then, RLH has served code-compliant responses to Plaintiffs’ request for admissions, without objection. Sanctions were imposed upon RLH for failure to provide timely responses.  

Plaintiffs request the Court deny the motion as they believe that the alleged inexcusable neglect did not rise to the level of positive misconduct requisite to abandoning a client. However, the Court has found that, at least in part, the entry was based upon current counsel’s excusable neglect, mistake or surprise, as current counsel was completely unaware of any pending discovery or motions due to the lack of communication from previous counsel.  

The Court grants the motion.  

 

CONCLUSION 

Defendant Red Lobster Hospitality, LLC’s Motion for Relief from Order Deeming Requests for Admissions Admitted is GRANTED. The December 7, 2022, order deeming the request for admissions admitted is vacated as to only the admissions. All other orders regarding discovery and sanctions remain unchanged. 

Moving party is ordered to give notice of this ruling. 

Moving Party is ordered to file the proof of service of this ruling with the Court within five days. 

The parties are directed to the header of this tentative ruling for further instructions.