Judge: David B. Gelfound, Case: 23CHCV00568, Date: 2024-04-24 Tentative Ruling

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Case Number: 23CHCV00568    Hearing Date: April 24, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO SET ASIDE ORDER REGARDING DISCOVERY RESPONSES AND REQUESTS FOR ADMISSIONS TO BE DEEMED ADMITTED AND ORDER FOR SANCTIONS

Motion filed: 3/12/24

MOVING PARTY: Plaintiff Abdul Razig Nazari (“Plaintiff” or “Nazari”)

RESPONDING PARTY: Defendant Kevin Christopher McCalla (“Defendant”)

NOTICE: OK 

RELIEF REQUESTED: An order from this Court to set aside the Court’s Minute Order dated February 8, 2024, Deeming Defendant’s Request for Admission, Set One, as admitted, and to vacate the monetary sanction against Plaintiff.

TENTATIVE RULING: The Motion to Set Aside the Order deeming the requests for admissions as admitted is GRANTED. The Request to Set Aside monetary sanctions is DENIED.

BACKGROUND

This is a personal injury action wherein Plaintiff alleges that on June 23, 2023, Defendant rear-ended Plaintiff’s vehicle while traveling northbound on Balboa Blvd., at the intersection of Parthenia St., Northridge, CA 91343.

On February 28, 2023, Plaintiff filed his Complaint against Defendant, alleging the following causes of action: (1) General Negligence; and (2) Motor Vehicle Negligence. Subsequently, on May 24, 2023, Defendant filed his Answer to the Complaint.

On February 8, 2024, the Court issued a Minute Order (1) deeming Defendant’s Request for Admission, Set One, as admitted; (2) granting Defendant’s Motion to Compel Responses to Form Interrogatories, Set One; (3) granting Defendant’s Motion to Compel Responses to Special Interrogatories, Set One; (4) granting Defendant’s Motion to Compel Responses to Requests for Production of Documents, Set One, and (5) awarding monetary sanctions against Plaintiff. (2024/2/8 Minute Order.)

On March 6, 2024, Defendant filed a Motion for Summary Judgment, which is set for hearing on May 23, 2024.

On March 12, 2024, Plaintiff filed the instant Motion to Set Aside the Court’s February 8, 2024, Order on the grounds of extrinsic fraud, mistake, and excusable neglect under Code of Civil Procedure, section 473, subdivision (b). (the “Motion”)

On April 3, 2024, the Court granted Plaintiff’s Ex Parte Application to Shorten Time for Notice and Hearing on the Motion, setting the deadline for Defendant to file an Opposition by April 17, 2024, and for Plaintiff to file a Reply two days prior to the new hearing date scheduled for April 24, 2024. (4/3/24 Minute Order.)

On April 17, 2024, Defendant filed his timely Opposition. Subsequently, Plaintiff filed a timely Reply on April 22, 2024.

ANALYSIS

The first portion of Code of Civil Procedure section 473 subdivision (b) vests the trial court with the discretion to vacate a judgment on a party’s or attorney’s excusable neglect. (Todd v. Thrifty Corp. (1995) 34 Cal.App.986, 991.) It 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.” (Code Civ. Proc., § 473, subd. (b).)

A.    Objections to Evidence

Defendant filed separate Objections to Evidence, enumerating objections Nos. 2-11. The Court rules on the objections as follows:

Overruled: Nos. 2, 3, 4, 5, 6, 8, 9, 10.

Sustained: Nos. 7, 11.

B.     Motion to Set Aside

Plaintiff moves the Court to set aside its Minute Order dated February 8, 2024, under the authority of discretionary relief of Code of Civil Procedure section 473 subdivision (b) due to “mistake, inadvertence, surprise, or excusable neglect.” (Mot., at 1.)

In response, Defendant argues that Code of Civil Procedure section 2033.300 requirements must be satisfied. The Court disagrees.

            Code of Civil Procedure section 2033.300 provides, in part, that “[t]he 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 maintain that party’s action or defense[.]” (Underlines added.)

            It is evident that Plaintiff is not seeking to withdraw or amend his admission in his responses. Instead, Plaintiff is moving to establish that his responses, but for the extrinsic mistake, would have been served on September 2, 2023, via email. As this date was prior to the hearing date on February 8, 2024, its responses would have rendered the Defendant’s motion to deem admitted moot, pursuant to Code of Civil Procedure section 2033.280 subdivision (c), which provides, in pertinent part, that “[t]he Court shall make this order [to deem admitted], unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Underlines added.)

            Next, the Court will examine whether discretionary relief under Code of Civil Procedure section 437 subdivision (b) may be granted.

Plaintiff’s counsel, Mr. Michael Moghtader, attests that Plaintiff verified the responses to Defendant’s Request for Admission, Set One, on September 1, 2023. (Moghtader Decl., ¶ 2, Ex. “1.” Verification) Following this, the responses were emailed to Defendant’s counsel office on September 2, 2023. (Id., ¶ 3, Ex. “1” Proof of Service.) However, the response files were not properly attached due to the file size limitation (Id., ¶ 4.) Plaintiff’s counsel did not discover the particular email transmission error until Defendant filed a motion to compel. (Id., ¶ 5.)

Additionally, Plaintiff presents a declaration by the Support Manager of Computer Guys, Mr. Sean Vsarasteh, who was responsible for providing all computer technical support to Plaintiff’s counsel’s office. (Vsarasteh Decl., ¶ 1.) Mr. Vsarasteh attests that Plaintiff’s counsel’ officer went through a server migration in mid-August 2023, which experience issues related to email server, and his team diligently worked with Microsoft engineer to resolve the issues until early February 2024. (Id., ¶¶ 1, 3, 10, 11, 15.)

            Furthermore, another counsel Mr. Dean Allen Gettleson attests that he was asked by Plaintiff’s attorney of record, Mr. Michael Moghtader, to specially appear at the February 8, 2024, hearing; however, he was delayed by another hearing in Los Angeles downtown court. (Gettleson Decl., ¶¶ 2, 5.) Mr. Gettleson called the Chatsworth Courthouse and was told to call back; however his second call was disconnected. (Ibid.) Subsequently, Mr. Gettleson contacted Plaintiff counsel office, resulting Delia Orozco from Plaintiff’s counsel office informing the Court. (Id., ¶¶ 7-8.)

            Despite efforts to call the Court, Mr. Gettleson learned that the hearing was over while on the way to the Courthouse. (Gettleson Decl., ¶¶ 9-10.) The Minute Order reflects that “Plaintiff’s counsel’s office called and requested second call, the Court waited until 09:20 a.m. Plaintiff’s counsel never appeared.” (2/8/24 Minute Order.)

The established case law sets forth that “Even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment…where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.)¿¿ 

In Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea), the court stated that extrinsic mistake is “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” Furthermore, the Rappleyea court instructed that, “[t]o set aside a¿judgment¿based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.” (Rappleyea, supra, 8 Cal.4th at 982.)¿¿¿ 

¿ 

            Here, the Court finds that Plaintiff has satisfied the three elements. First, if the responses were not improperly transmitted due to errors, the Defendant’s motion to compel would have been rendered moot, establishing a meritorious case for Plaintiff. Second, Plaintiff presented a factual showing that Plaintiff signed the verification for all responses on September 1, 2023, and provided Proof of Service, demonstrating that the email was sent on September 2, 2023. Furthermore, Plaintiff shows a satisfactory excuse that but for the email server issues, the responses would have been successfully served, and his special appearing counsel was delayed for the February 8, 2024, hearing due to schedule conflicts. Third, Plaintiff acted diligently in seeking relief from the Court’s Order by filing the instant Motion on March 12, 2024, within the statutory limitation of six months from the entry of the order. Additionally, Plaintiff filed an Ex Parte application to advance the hearing for the instant Motion. Consequently, the Court concludes that extrinsic mistake exists.

Moreover, the Court finds that Defendant will not suffer any prejudice or injustice from granting the relief. There is no evidence of prejudice against Defendant if his motion to deem admitted the request for admission were decided on its merits. Conversely, if Plaintiff successfully objects to any of the request for admissions, denying them the opportunity to do so would constitute a miscarriage of justice, particularly given the opposing party’s potential use of unchallenged admission in their motion for summary judgment.  

Notably, although the Court finds that discretional relief should be granted to set aside the order deeming Defendant’s Requests for Admission as admitted, it nevertheless concludes that monetary sanctions are mandatory under Code of Civil Procedure section 2033.280 subdivision (c). This section explicitly states, “It is mandatory that the court impose a monetary sanction ... on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”

            Accordingly, in accordance with the discretionary relief under Code of Civil Procedure section 473 subdivision (b), the Court GRANTS IN PART the Motion to Set Aside the Court’s Minute Order dated February 8, 2024, as it pertains to the Motion to Deem Defendant’s Request for Admission, Set One, as admitted.

The Court SETS ASIDE and VACATES its previous order to deem Defendant’s Requests for Admissions, Set One, as admitted. However, the request to vacate the monetary sanction is DENIED.

CONCLUSION

The Court SETS ASIDE and VACATES its Order dated February 8, 2024, which deemed Defendant’s Requests for Admissions, Set One, as admitted.

Plaintiff’s Request to Set Aside Sanctions is DENIED.

Plaintiff’s attorney of record is ordered to comply with the monetary sanctions imposed by the Order dated February 8, 2024, by making payment to Defendant in the amount of $370.00 within 10 days.

Moving party to give notice.