Judge: Glenn R. Salter, Case: 20-1137326, Date: 2022-08-18 Tentative Ruling

Motion to Vacate

The motion of the plaintiff to vacate and set aside the order deeming Requests for Admission (Set One) admitted is GRANTED.  The previously served answers without objections are deemed the answers.

The hearing on the motion to deem the requests admitted was heard February 24, 2022.  (See ROA 108.)  The tentative ruling indicated that the motion would be granted; but after oral argument, the minute order reflects that the court made the following modification:  “Plaintiff shall provide responses without objection within 21 days of this order.”

A fair reading of the minute order suggests that this extension-of-time modification was likely intended to relate to the concurrent motion to compel answers to Form Interrogatories (Set Two).  However, the modification is not clear and does not state that it applies only to the one discovery motion and not the other.  The court assumes that the Temporary Judge who handled the law and motion matter that day read the statute as to requests for admissions by the book; i.e., a failure to serve responses prior to the hearing on the motion requires an order deeming the requests admitted.  Given responses had not been served, the only proper order was to deem the requests for admission admitted.  There was no authority to extend the time to answer.  Thus, it would appear the modification was not intended to apply to the motion to deem the requests admitted.

Even if the modification did not provide relief, the court finds (albeit barely) good cause to grant the motion for relief (essentially, to preserve the plaintiff’s right to have her day in court on the merits).

The answers, without objections, were served less than 21 days after the hearing.  At around the same time, the plaintiff filed an ex parte application for relief under Code of Civil Procedure section 473 (in conjunction with a request to continue trial).  The application, which was opposed, was denied without prejudice to the filing of a noticed motion, and this is where the request for relief gets sticky.

The basis for relief is extremely weak.  Counsel suggests that the mistake was his fault because he failed to properly calendar the requests for admission.  But counsel’s repeated failures afterwards are not justified by any claim of mistake or inadvertence.  They are more a kind of willfulness, as cogently explained in the opposition.

It is also troublesome that the plaintiff waited until July 25, 2022, to file the noticed motion for relief.  The defendant filed a motion for summary judgment on May 11, 2022, almost three months after the motion to deem the requests admitted was granted.  The plaintiff filed her opposition to the motion on July 15, 2022, and only then—ten days later, and many months after her ex parte application was denied—did she file the motion for relief.  And with trial set for October 17, 2022, the lateness of the motion improperly interferes with the defendant’s right to file a viable motion for summary judgment.

The Courts of Appeal teach that in cases such as this the trial court should see that matters are heard on the merits.  The court finds that controlling.

Sanctions are, however, appropriate.  The defendant seeks $7,865 in monetary sanctions for costs.  The court has reviewed the request and, under a fair review of the record, finds the request reasonable.  But these are sanctions that should not be borne by plaintiff.  They are to be borne solely by plaintiff’s counsel.

The plaintiff’s motion for relief is GRANTED.  The defendant’s request for monetary sanctions is GRANTED.  Attorney Lawrence Hoodack is ORDERED to pay the defendant $7,865 in sanctions within 20 days of this order.

The court sets a Status Conference for September 22, 2022, at 8:30 am.  The purpose of the Status Conference is to ensure that the sanctions have been paid by attorney Hoodack as ordered.  Attorney Hoodack is ORDERED to appear.  If Hoodack submits a declaration at least two court days prior to the hearing showing that the sanctions have been paid, then and only then will no appearance by counsel be required.

The defendant shall prepare the appropriate order.

Motion for Summary Judgment

The motion for summary judgment is OFF CALENDAR.  The granting of the motion to vacate would appear to undercut the factual basis of the motion.

Notice

The defendant shall give notice.