Judge Daniel M. Crowley, Case Number: 23STUD11101, Date: 2024-12-23 Tentative Ruling

Plaintiff The Woman’s Club of Hollywood, California’s motion for relief pursuant to C.C.P. §§473(b) and 2033.280(a)(1), (2) is denied.

Plaintiff The Woman’s Club of Hollywood, California (“TWCHC”) (“Plaintiff”), bring a motion for relief pursuant to C.C.P. §§473(b) and 2033.280(a)(1), (2). (Notice of Motion, pg. 1; C.C.P. §§473(b), 2033.280(a)(1), (2).)

(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.

(b) The court may permit withdrawal or amendment of an admission only if it determines 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.

(c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:

(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the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.

(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.

C.C.P. §2033.300(a) permits amendment or withdrawal of “deemed admissions” ordered by the court under §2033.280(b), as well as admissions expressly made by a party. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)

Plaintiff fails to move for relief under the operative statute, namely C.C.P. §2033.300. Plaintiff’s motion moves for relief under C.C.P. §§473(b) and 2033.280(a)(1), (2). Plaintiff’s motion cannot be granted under C.C.P. §§473 or 2033.280.

As a preliminary matter, Plaintiff’s argument in its reply that Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393 was overturned by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 is a misstatement of the law. Wilcox disapproves portions of Demyer pertaining to whether withdrawal or amendment of an RFA is permissible if no response has been provided; it did not rule on whether C.C.P. §473 is available. “The law governing the consequences for failing to respond to requests for admission may be the most unforgiving in civil procedure. There is no relief under section 473.” (Demyer, 36 Cal.App.4th at pg. 395, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, emphasis added.)

Under C.C.P. §2033.300(b), a party will be permitted to withdraw or amend an admission only if the court finds: (1) the admission resulted from “mistake, inadvertence or excusable neglect” (e.g., new facts discovered contradicting earlier admission); and (2) No substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (C.C.P. §2033.300(b); see New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1418.) On the other hand, the court's discretion to deny a motion to withdraw or amend is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits. (Id., at 1420-1421.)

Here, Plaintiff fails to demonstrate either that there was excusable mistake, inadvertence, or neglect, or that no substantial prejudice will result from allowing the admission to be withdrawn or amended. The evidence presented by Plaintiff indicates that Plaintiff’s counsel served unverified responses to the requests for admission on September 22, 2023, then sent improper verifications on October 4, 2023. Defendant filed a motion to deem the facts contained in the requests admitted on October 11, 2023, which was set to be heard on March 4, 2024. Rather than remedying the improper verification, Plaintiff’s counsel filed an opposition, incorrectly arguing that Defendant needed to have met and conferred and filed a motion for further responses prior to moving to deem the facts contained in the requests admitted. Plaintiff’s counsel then moved to withdraw, and then moved ex parte to advance the hearing on that motion to withdraw to March 4, 2024. On March 4, 2024, the facts contained in the requests were deemed admitted and Plaintiff’s counsel was granted leave to withdraw from her representation of Plaintiff.

The evidence presented by Plaintiff in its moving papers suggests this outcome was a result of Plaintiff’s counsel’s tactical decisions and Plaintiff’s unwillingness to cooperate with (including not paying) counsel (See Exhibit 2 to the moving papers).

Plaintiff argues, essentially, that it should not be punished for its counsel’s misdeeds. Nonetheless, a party who seeks relief under section 473 on the grounds of mistake or inadvertence of counsel generally must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney . . . is imputed to his client and may not be offered by the latter as a basis for relief. “The client's redress for inexcusable neglect by counsel is, of course, an action for malpractice.” ( Martin v. Cook (1977) 68 Cal.App.3d 799, 809; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 353.)

Moreover, while an attorney's positive misconduct may be except a claim for relief from this general rule, the exception depends on the person seeking relief being relatively free from negligence. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.) Here, Plaintiff’s predicament appears to be caused, at least in part, from Plaintiff’s own misconduct, namely, its failure to cooperate with counsel.

Plaintiff The Woman’s Club of Hollywood, California’s motion for relief pursuant to C.C.P. §§473(b) and 2033.280(a)(1), (2) is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court