Judge Gregory Keosian, Case 19STCV30516 2023-03-22 Tentative Ruling

Judge: Gregory Keosian, Case: 19STCV30516, Date: 2023-03-22 Tentative Ruling

Case Number: 19STCV30516 Hearing Date: March 22, 2023 Dept: 61

Defendant Jianxiang Shi’s Motion for Relief from Order of January 24, 2023, is GRANTED in part: Defendant may amend his responses to Requests for Admissions, Set One, under Code of Civil Procedure § 2033.300, conditioned upon Defendant’s service of objection-free responses to those requests within 10 days of this order. The motion is otherwise DENIED.

I. MOTION FOR RELIEF FROM DEFAULT

Code of Civil Procedure section 473, subdivision (b) states:

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 . . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment . . . unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

Defendant Jianxiang Shi (Defendant) seeks relief from this court’s order of January 24, 2023, which granted Plaintiff Miaoxin Yu’s (Plaintiff) motions to compel and deem matters admitted against him. As with his opposition to the previous motion, Defendant relies upon the manner in which the discovery at issue was served — in an email with a cryptic subject line: “Notice of Dismissal – Zhao_30516.” (Chen Decl. ¶ 11.) Defendant’s attorney claims that he did not open the email (and thus did not see the discovery at issue) because he did not believe it contained anything pertaining to his representation. (Chen Decl. ¶ 12.) Thus Defendant argues the order compelling further responses and deeming matters admitted may be vacated for his counsel’s neglect, excusable or otherwise. (Motion at pp. 2–6.)

Only limited relief is appropriate. As the court noted in its ruling on the prior motions, to which Defendant advanced an identical argument, his counsel’s failure to review the discovery attachments to the email, even if it did constitute excusable neglect, formed no basis to deny the motions. This is because there was no violation of the rules applicable to email service of discovery to which Defendant could point, and because, as noted in the ruling on that motion, Defendant had not served code-compliant responses to the discovery at issue, as would furnish a basis for granting relief from deemed admissions or waived objections. Even as of the present motion, Defendant has provided no responses. (Weiner Decl. ¶ 13.) Thus, if the court were to vacate its order granting the previous motions on the basis that Defendant now presents, Plaintiff could simply renew the original motions, since the discovery was properly served and Defendant has provided no response.

Moreover, most of the relief that Defendant seeks is foreclosed by other statutes, which this court expressly mentioned in its prior ruling. The “sole remedy for relief from waiver in the context of discovery is contained within the provisions of the Act and [parties] cannot rely upon the provisions of section 473.” (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274–275.) Relief from waiver of objections to discovery may be had on two conditions:

(1) The party has served a response in substantial compliance with statutory requirements;

(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(See Code Civ. Proc. § 2030.290, subd. (a)(1)–(2); 2031.300, subd. (a)(1)–(2); 2033.280, subd. (a)(1)–(2).) Again, Defendant has served no responses to the discovery.

Only limited relief may be afforded to Defendant upon the showing made here. Specifically as to admissions, a “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 maintaining that party's action or defense on the merits.” (Code Civ. Proc. § 2033.300, subd. (b).) Moreover, “[t]he court may impose conditions on the granting of the motion that are just.” (Code Civ. Proc. § 2033.300, subd. (c).)

Defendant’s failure to respond to the requests for admissions was the product of an excusable failure to open an email that his counsel had no reason to believe contained discovery material. The fault for the failure of discovery is thus shared between Plaintiff and Defendant, and although trial is set for June 2023, there is little reason to believe that Plaintiff will be meaningfully prejudiced by providing relief from deemed admissions, especially in light of the “strong public policy favoring disposition on the merits.” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.)

The motion is therefore GRANTED in part. Defendant may amend his responses to Requests for Admissions, Set One, under Code of Civil Procedure § 2033.300, conditioned upon Defendant’s service of objection-free responses within 10 days of this order. The motion is otherwise DENIED.