Judge: Frank M. Tavelman, Case: 21BBCV00515, Date: 2023-09-15 Tentative Ruling

Case Number: 21BBCV00515    Hearing Date: December 8, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO SET ASIDE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On June 3, 2021, James Shayler (“Plaintiff”) brought this action for violation of the Unruh Civil Rights Act against Jeff Muchamel, Hayat Muchamel, and Raffis Arutyunyan (“Arutyunyan”) (collectively “Defendants”).

The parties had previously reached a settlement in this matter in March of 2023. At a June 5, 2023 OSC hearing, Counsel for Plaintiff informed that Defendants had not signed the settlement and the Court subsequently vacated the Notice of Settlement.

On September 15, 2023, the Court granted Plaintiff’s unopposed motion to deem matters in his Request for Admissions (“RFA”), propounded upon Arutyunyan, admitted.

Arutyunyan now moves to set aside the September 15 order and Plaintiff opposes.

ANALYSIS: 

Legal Standard

Per C.C.P. § 2033.300, a party may withdraw or amend an admission made in response to a request for admission on a noticed motion, if the court 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.C.P. § 2033.300(a)-(b).)

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief. Accordingly, the court’s discretion to deny a motion under the statute 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.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421.)

This code section has been held by the courts to apply to admissions obtained via failure to respond. In Stover v. Bruntz (2017) 12 Cal.App.5th 19, the Court of Appeals held that a pro per litigant was not entitled to have admissions obtained by her failure to answer set aside at trial because she failed to file a motion to withdraw the admissions. (Stover supra, 12 Cal.App.5th at 30, citing to Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978-983.) The court found the proper statutory basis for setting aside admissions obtained by failure to answer was C.C.P. § 2033.300. (Id.)

The court may impose any just conditions on the granting of a motion. (C.C.P. § 2033.300 (c).

Merits

Arutyunyan argues that the September 15 order deeming the RFA matters admitted should be set aside on account of excusable neglect by his counsel. Plaintiff argues relief under C.C.P. § 473(b) does not apply to an order deeming RFA matters admitted. Plaintiff further argues that Arutyunyan has not shown the failure of his counsel to reply to the RFA was the result of excusable neglect.

The Court notes that Arutyunyan is mistaken as to the grounds on which he seeks relief. Arutyunyan cites C.C.P. § 473 as grounds for setting aside the September 15 order, however that statute does not address orders deeming RFA matters admitted. C.C.P. § 473 grants relief from judgment, dismissal, order, or other proceeding taken against a party. Further, the mandatory relief provisions of C.C.P. § 473(b) to which Arutyunyan cites apply only to default, default judgment, or dismissal that results from attorney neglect.

The Court finds the more appropriate grounds for Arutyunyan’s motion is C.C.P. § 2033.300. Pursuant to that section, Arutyunyan may be entitled to relief from the admissions if he were able to show the admissions resulted from mistake, inadvertence, or excusable neglect. The Court in its discretion, and in the interest of a determination of this action on the merits, chooses to treat Arutyunyan’s motion as one brought under C.C.P. § 2033.300.

While Arutyunyan’s motion is not properly brought under C.C.P. § 473, C.C.P. § 2033.300 contains similar language, and the Court finds authorities which address similar remedial relief under C.C.P. § 473 to be instructive.

“A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel 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. In determining whether the attorney’s mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. In other words, the discretionary relief provision of C.C.P. § 473 only permits relief from attorney error fairly imputable to the client, i.e., mistakes anyone could have made. Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [internal quotations and citations omitted}.)

Here, Arutyunyan advances the declaration of his counsel, Arno Keshishian (“Keshishian”). Keshishian states that the RFA were propounded on Arutyunyan on May 18, 2022, shortly after Keshishian had sent responses to RFA served on co-defendant Muchamel. (Keshishian Decl. ¶ 6.) Keshishian states he prepared responses to the RFA, but they were inadvertently never sent to Plaintiff’s counsel. (Keshishian Decl. ¶ 9.) Keshishian states a meeting to discuss outstanding discovery was conducted in August 2022 which resulted in a month’s long discussion about settlement. (Keshishian Decl. ¶ 10.) Keshishian states the last correspondence his office received regarding this case was Plaintiff’s correspondence regarding signatures for the settlement agreement and release on April 21, 2023. (Keshishian Decl. ¶ 11.) Keshishian denies ever receiving notice of the motion to deem RFA matters admitted when it was purportedly served in July 2023. (Keshishian Decl. ¶ 11.) Keshishian states he later realized that the emails from Plaintiff’s counsel were being labeled as spam and thus he was not receiving them. (Keshishian Decl. ¶ 13.)

Plaintiff argues that Keshishian paints an incomplete picture of the events between settlement discussions and the service of their motion. Plaintiff states Keshishian did not respond to several phone calls and voicemails left by Plaintiff’s counsel. (Fitzgerald Decl. ¶ 3.) Plaintiff also provides the proof of service showing the motion to deem RFA matters admitted was noticed by both mail and email. (Fitzgerald Decl. ¶ 3.) Plaintiff also states they have yet to receive the response to the RFA. Plaintiff argues these facts indicate the mistake attested to by Keshishian is not of the type that qualifies as “excusable”. Plaintiff does not argue that the withdrawal of Arutyunyan’s admissions would result in substantial prejudice to Plaintiff.

The Court finds that the Arutyunyan is entitled to discretionary relief under C.C.P. § 2033.300. Keshishian submits an affidavit attesting to the inadvertent failure to respond to the discovery demands and his inability to receive further communications due to the spam filter of his email. The Court finds that this is the type of mistake which a reasonably prudent person under the same circumstances could have made. While the Court understands the phone calls should have notified Keshishian of an attempt to communicate, it doesn’t necessarily follow that they should have alerted him to outstanding discovery.

Should the neglect of discovery by Keshishian be imputed to Arutyunyan, Plaintiff’s motion for judgment on the pleadings would move forward and likely result in judgment against Arutyunyan. Ultimately, the law requires any doubts as to the excusable nature of Keshishian’s mistake to be resolved in favor of a resolution on the merits. It does not square with the priority of the law that Arutyunyan’s defense be dismissed as a result of his counsel’s failure to respond to discovery when Arutyunyan has thereafter sought to remedy the issue. Further, the Court does not find that any prejudice would occur to Plaintiff as a result of granting this motion.

Accordingly, the motion is GRANTED.

Sanctions

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (C.C.P. § 2023.030(a).) Failure to respond constitutes a misuse of the discovery process. (C.C.P. § 2023.010(d).)

The Court finds sanctions are appropriate given the failure of Arutyunyan to timely reply to Plaintiff’s RFA has now required the filing of several discovery motions which could otherwise have been avoided. Accordingly, the Court grants sanctions in the amount of $1,200, reflecting three hours of attorney work at a rate of $400 an hour. (Fitzgerald Decl. ¶¶ 4-5.) Sanctions are granted against Keshishian only.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Raffis Arutyunyan Motion to Set Aside came on regularly for hearing on December 8, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION IS GRANTED.

SANCTIONS ARE AWARDED FOR PLAINTIFF AGAINST DEFENDANT’S COUNSEL ARNO KESHISHIAN IN THE AMOUNT OF $1,200.  PAYMENT IS DUE WITHIN 30 DAYS.

ARUTYUNYAN IS TO SERVE RESPONSES TO THE RFA WITHIN 20 DAYS.

PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS IS MOOT AND OFF CALENDAR.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 8, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles