Judge: Glenn R. Salter, Case: 21-1210046, Date: 2022-12-01 Tentative Ruling

The motion of defendant and cross-complainant to vacate the May 12, 2022 Order Deeming the Requests for Admissions (Set One) Admitted is DENIED.

Background

The complaint and cross-complaint seek to quiet title to certain residential property.

On May 12, 2022, the court granted the plaintiff’s motion to deem the plaintiff’s Requests for Admissions (Set One) admitted.  According to the motion, the Requests had been served in November 2021, and, despite the plaintiff granting additional time to respond, the defendant never provided responses.

The defendant did not file opposition to the motion.  Nor did he appear at the hearing.  At this point, the defendant was self-represented.

On June 8, 2022, the defendant, still self-represented, filed a motion to set aside the order, claiming he had been unable to log in remotely to the May 12 hearing.  He also claimed he had served responses to the Requests by e-mail the day prior to the hearing.  Two weeks later, defendant filed an amended motion to vacate the order, this time attaching a copy of the unverified responses he said he had previously served.

The motion and the amended motion were taken off calendar on June 27, 2022, as they were never served on plaintiff’s counsel.

On August 5, 2022, the defendant sought an ex parte order to continue trial, but he never served the plaintiff with the ex parte and it was denied.  A second application to continue trial was denied August 15, because, again, he did not serve a copy of the ex parte on the plaintiff.  A third application to continue trial was filed.  This time it was served on plaintiff’s counsel.  The plaintiff opposed it.

By September 29, 2022, defendant was represented by counsel.  Pursuant to the stipulation of the parties, trial was continued to December 19, 2022.  Relevant here, the stipulation expressly provided that the continuance of trial would not re-open discovery, and all discovery cut-off dates would be governed by the vacated October 3, 2022 trial date.

The defendant, through counsel, then filed this motion to vacate on October 25, 2022.  It included the original, unsigned responses.  It also included “supplemental” responses that were verified.  (The verification appears to relate solely to the supplemental responses.)

Code of Civil Procedure section 473

The motion is brought, in part, pursuant to Code of Civil Procedure section 473.

However, that section and cannot be used as a basis for relief because there is a comparable section for relief under the Discovery Act.  (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.)  Code of Civil Procedure section 2033.300, subdivision (b), expressly provides for relief if the court “determines that the admission was the result of mistake, inadvertence, or excusable neglect.” 

As Zellerino pointed out, the State Bar-Judicial Council Joint Committee Report on the Civil Discovery Act of 1986 was explicit that the discovery rules—and not section 473—would govern any request for relief.  (Zellerino v. Brown, supra, 235 Cal.App.3d at p. 1107.)

Code of Civil Procedure section 2033.300

The motion is also brought pursuant to Code of Civil Procedure section 2033.300.  However, under that section a motion to withdraw an admission must be heard no later than 15 days prior to the original trial date.

Here, the parties stipulated that October 3, 2022, was the trial date for purposes of the discovery cut-off.  That was the price the defendant apparently had to pay in order to obtain another trial continuance.

However, the new motion was filed October 25, which was clearly beyond the discovery cut-off date.  Because the timing of discovery motions is jurisdictional, the failure to file a timely motion deprives the court of any jurisdiction to entertain.

Accordingly, the motion must be denied.

Notice

The plaintiff shall give notice.