Judge Douglas W. Stern, Case 21STCV31465 2023-04-21 Tentative Ruling

Optimal Capital Consultants, LLC, et al. vs. Lindsey Pierce, et al.; 21STCV31465

Motion for Order to Set Aside Order Deeming Request for Admissions Admitted

Moving Party: Plaintiffs/Cross-Defendants Optimal Capital Consultants, LLC; JJK Enterprises, LLC; and SL Capital Enterprises, LLC

Responding Parties: Defendants/Cross-Complainants Lindsay Pierce and Rom Alborzi

The attorney for Plaintiffs filed an affidavit requesting that the Court set aside its December 21, 2022, order deeming Defendants’ requests for admissions admitted. In the affidavit, the attorney cites no authorities for the motion, other than a reference to CCP § 473 in the caption of the motion, but says that he failed to respond to the requests for admissions due to a calendaring error. The attorney therefore requests that that the order deeming requests for admissions admitted be set aside because of his mistake, inadvertence, surprise, and excusable neglect.

Defendants argue that the attorney’s affidavit should be denied because it fails to cite any legal authority or grounds for the motion in body of the motion. Further, Defendants argue that even if Plaintiffs’ attorney had cited legal authority, then the motion should be denied because his neglect was not excusable pursuant to CCP § 473 because he should have known of the calendar deadlines. Defendants also indicate that Plaintiffs’ attorney was given multiple warnings and opportunities to respond to the discovery.

This lawsuit was initiated on August 25, 2021. The request for admissions were served on all three Plaintiffs in mid-September, 2022. Ultimately, on November 28 and 29, 2022, three motions were filed by Defendants seeking to deem facts admitted for failure to have responded to the Request for Admission. All of the motions contain proofs of service showing that they were served on counsel for Plaintiffs. The hearings were set for December 20 and 21, 2022. The Court’s Minute Order reflects that there was no appearance by Plaintiffs at the December 20, 2021 hearing. However, counsel for Plaintiffs, Eric Meller, appeared at the hearing on December 21, 2022. None of these facts are mentioned in the moving papers. Instead counsel focuses upon the fact that due to the burden of business he lost track of the date the responses were due (after extension).

On March 24, 2023 Plaintiffs filed their motion seeking relief from the Courts December orders deeming the facts admitted.

Plaintiffs’ motion fails to explain that failure to have responded after the Motions were filed. It fails to explain the delay seeking relief from late December until late March when the Motion was filed. And Plaintiffs’ motion fails to cite any legal authority or other grounds for the Motion in the body of the Motion. Even if he had cited any authority or if CCP § 473 was applicable, Plaintiffs’ attorney’s conduct would not rise to the level of excusable neglect.

1. Plaintiffs’ Motion for an Order to Set Aside Order Deeming Requests for Admissions Admitted is DENIED.