Judge Jill Feeney, Case 20STCV31419 2022-10-17 Tentative Ruling

This is an action for motor vehicle negligence arising from a vehicle collision which took place in December 2019. Plaintiff J.R. Starr filed his Complaint against Defendant Alberto Calderon on August 18, 2020.

Plaintiff argues that his admissions were deemed admitted due to excusable neglect because Plaintiff served unverified responses to Defendant’s RFAs and inadvertently failed to serve verification of his response due to his age and inability to use technology.

Defendant argues that Plaintiff fails to provide facts that demonstrate mistake, inadvertence, or excusable neglect. Defendant also argues that Plaintiff’s age and lack of ability to use technology should not have prevented him from responding to Defendant’s RFAs. Defendant also notes that he never received the unverified responses.

CCP § 2033.300(a) states, “A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.” CCP §2033.300(b) states, “The 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.” The “mistake, inadvertence, or excusable neglect” under CCP § 2033.300 have similar meanings as those words used in CCP § 473(b). (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.)

“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, 1420–21.)

Plaintiff argues that his requests for admission were improperly deemed admitted because Defendant failed to notify the Court that it received responses before the hearing. Plaintiff also argues that his failure to serve verifications was caused by Plaintiff’s advanced age and inability to use technology.

Plaintiff’s RFAs were deemed admitted on July 6, 2022. Plaintiff served unverified responses to Defendant’s RFAs on February 11, 2022. (Nourmand Decl., ¶4.) After Defendant filed his motion to deem RFAs admitted, Plaintiff’s counsel emailed Defendant’s to point out responses had been provided. (Id., ¶6.) Verifications were not served because Plaintiff is 85 years old and Plaintiff’s counsel could not arrange for him to sign verifications in January or February. (Id., ¶7.) After verifications were mailed, Plaintiff’s counsel did not sufficiently monitor the verifications and they were never served. (Id., ¶8.) In opposition, Defendant’s counsel states he never received the unverified responses in February 2022. (Bramlage Decl., ¶8.)

Plaintiff’s argument that Defendant should not have filed a motion to deem RFAs admitted because he filed unverified responses is without merit. Unverified discovery responses are tantamount to no response at all. (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.) Here, Plaintiff’s unverified responses were tantamount to no response at all because the responses consisted of 6 admissions and 20 denials with no objections. (Nourmand Decl., ¶4.) Moreover, the responses were signed by Daniel M. O’Leary, who had not appeared as counsel in this matter at the time the responses were allegedly served. Regardless of whether Defendant received these responses, verifications were never served, meaning there was no response at all to Defendant’s RFAs. The RFAs were deemed admitted through no fault on Defendant’s part.

Plaintiff next argues that his failure to serve verifications was due to Plaintiff’s advanced age and inability to use technology. Although Plaintiff argues the verifications were eventually mailed, Plaintiff’s counsel concedes that he did not sufficiently monitor the verifications and they were never served. Plaintiff’s counsel did not file an opposition to Defendant’s motion to deem RFAs admitted, nor did he appear at the hearing on the motion. It appears the RFAs were deemed admitted through no fault on Plaintiff’s part, but because of his counsel’s negligence.

Because the RFAs were deemed admitted due to Plaintiff’s counsel’s excusable negligence, the motion to withdraw is granted. However, Plaintiff’s must still pay sanctions as originally ordered on July 6, 2022 for misusing the discovery process by failing to timely respond to Defendant’s discovery requests. Defendant originally propounded his requests on October 27, 2021. (Bramlage Decl., ¶3.) Plaintiff has now delayed responding to Defendant’s discovery requests by nearly a year.

Plaintiff’s counsel should be aware that any further lapses will likely not be deemed excusable neglect. There are many points at which counsel could have prevented the admission of the RFAs, including by opposing the motion or appearing at hearing.