Judge: John J. Kralik, Case: 22BBCV00704, Date: 2023-08-18 Tentative Ruling

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Case Number: 22BBCV00704    Hearing Date: March 8, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

            Plaintiff Ariella Lousky (“Plaintiff”) alleges that in May 2020, Plaintiff as landlord and Defendant Douglas Peter Richter (“Defendant”) as tenant entered into a residential lease for the property located at 6206 Teesdale Ave., North Hollywood, CA 91606, dated May 22, 2020 with the term beginning on June 1, 2020 and ending on May 31, 2022.  Plaintiff alleges that Defendant acknowledged that the condition of the property was clean and operable and Defendant was obligated to maintain the property in a clean condition.  On May 22, 2020, the parties executed an Addendum to the Lease, explaining that an accessory dwelling unit may be constructed on the property and that Plaintiff was to give Defendant 15 days’ notice before breaking ground for the ADU.  Plaintiff alleges that she delivered the property pursuant to the Lease and Defendant was subsequently evicted.

            Plaintiff alleges that on December 16, 2021, a Stipulated Judgment – Unlawful Detainer was entered in LASC Case No. 21PDUD00986 in favor of Plaintiff and against Defendant such that Defendant was to vacate the property by May 31, 2022.  Plaintiff alleges that she had the property inspected, which reported damages to the walls, garage door and areas surrounding the pool, missing shower fixtures, and a homemade wall by Defendant.  Plaintiff alleges that she was forced to pay $29,856 in repairs and that Defendant owes $21,496. 

            The complaint, filed October 3, 2022, alleges causes of action for: (1) breach of written contract; and (2) breach of the implied covenant of good faith and fair dealing.  

B.     Cross-Complaint

On September 12, 2023, Defendant filed a cross-complaint against Ariella Lousky, Andrew Mazor, Maurice Abikizer, Milestone Design, and Development Inc. for: (1) breach of contract settlement stipulation; (2) breach of the covenant of good faith and fair dealing, bad faith; (3) unfair treatment and unjust eviction; (4) fraud; (5) breach of implied warranty; (6) breach of express warranty – wage theft and failure to reimburse repairs; (7) breach of duty arising from Home Inspection Report; and (8) declaratory relief.

C.     Motion on Calendar

On February 1, 2024, Defendant filed a motion for reconsideration of the Court’s order regarding Plaintiff’s motion to deem the requests for admission, set one (“RFA”) admitted. 

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

            CCP § 1008(a) states:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(CCP § 1008(a).)

DISCUSSION

            Defendant moves for reconsideration of the Court’s January 19, 2024 order granting Plaintiff’s motion to deem admitted the RFAs propounded against Defendant.  Defendant moves pursuant to CCP § 1008. 

            On January 19, 2024, the Court held a hearing on Plaintiff’s motion to deem the RFAs admitted.  The Court noted that the motion was not opposed and that Defendant did not attend the hearing.  Thus, the Court granted the motion pursuant to CCP § 2033.280 and granted $1,680 in attorney’s fees on 3 discovery motions (or $500 in attorney’s fees and $60 in filing fees). (See January 19, 2024 Minute Order.)  Plaintiff filed a Notice of Entry of Order on January 22, 2024, showing that that order was served on Defendant on January 22, 2024 by email. 

            As a preliminary matter, this motion for reconsideration was timely filed within 10 days after service of the notice of entry of the January 19, 2024 order. 

            Defendant argues that reconsideration of the January 19, 2024 order is proper because his opposition brief to the RFA motion was accepted by the Court for filing, but the Court did not consider his opposition brief prior to the hearing.  Defendant’s opposition to the RFA motion included his RFA responses, wherein he denied RFA Nos. 1-49.

By way of relevant background: on December 18, 2023, Plaintiff filed the underlying motion for order deeming the RFAs admitted against Defendant.  The RFA motion was set for hearing on January 19, 2024, such that any opposition brief by Defendant should have been due by January 5, 2024, and any reply brief by Plaintiff would have been due by January 11, 2024.  However, Defendant filed an untimely opposition brief to the RFA motion on January 17, 2024, which the Court did not consider.  The RFA motion came for hearing on January 19, 2024 and Defendant did not attend the hearing to orally argue against the RFA motion or to inform the Court that he had filed an untimely opposition brief.

CCP § 2033.280 states in relevant part:

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.

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

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.

(CCP § 2033.280 [emphasis added].)

            Here, Defendant filed an opposition brief to the RFA motion, which included his responses (without objection) to the RFAs, two days before the scheduled hearing date.  As such, the Court will reconsider its January 19, 2024 order in part only so that the motion to deem the RFAs admitted will be reconsidered.  (Plaintiff’s motions to compel initial responses to the FROG and RPD shall not be subject to reconsideration.  Defendant did not move for reconsideration on these other discovery matters.)

            Upon reconsideration, the Court denies Plaintiff’s motion to deem admitted the RFAs, set one against Defendant as responses were provided prior to the hearing date on the RFA motion.  However, the sanctions of $500 in attorney’s fees and $60 in filing fees shall remain for Defendant’s failure to timely serve responses, which necessitated the filing of the RFA motion.  (See CCP § 2033.280(c).) 

CONCLUSION AND ORDER

            Defendant’s motion for reconsideration of the Court’s January 19, 2024 order regarding Plaintiff’s motion to deem the requests for admission, set one admitted is granted.  The Court reconsiders its January 19, 2024 order on Plaintiff’s motion to deem admitted the requests for admissions against Defendant and herein denies the motion.  Although the RFA motion is now denied, the sanctions imposed in the amount of $560 on the RFA motion still stands. 

            Defendant shall provide notice of this order.

DATED:  March 8, 2024                                                        ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court