Judge: Jon R. Takasugi, Case: 21STCV07951, Date: 2023-05-03 Tentative Ruling

Case Number: 21STCV07951    Hearing Date: May 3, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ motion for reconsideration is GRANTED.

On 3/1/2021, Plaintiff Happy Smile, Inc. filed suit against Miro Hirai, Jose Nunez, and Oscar Nunez, alleging breach of contract and conversion.

            Now, Defendants Jose and Oscar Nunez (collectively, Defendants) move for reconsideration of the Court’s ruling granting Plaintiff’s unopposed motion to strike Defendants’ answers.

            The motion is unopposed.

Discussion

            Defendants argue that the Court should reconsider its ruling granting Plaintiff’s motion to strike based on the following facts: (1) Defendants’ failure to the oppose the motion to strike was the result of attorney error; and (2) Plaintiff’s motion was based on the false contention that Defendants had not responded to discovery.

            As for the first contention, CCP section 473(b) provides for mandatory relief from dismissal or default where an attorney attests that it was a result of his or her own mistake, inadvertence, surprise, or neglect. Here, Defendants’ counsel included such a declaration, explaining that he failed to oppose the motion to strike Defendants’ answers because he “mistakenly overlooked and forgot that there was a Plaintiff’s motion on calendar. I was primarily focused on a criminal defense felony trial matter along with other aspects of this case. For inexplicable reasons these were my thoughts as defense counsel.” (Karey Decl., ¶ 15.)

            As for the second contention, Defendants submitted evidence to show that they have repeatedly propounded discovery responses on Plaintiffs. More specifically, Defendants submitted a declaration from counsel explaining that Defendants initially responded to Plaintiffs’ discovery on 12/22/2020. Then, Defendants resent those responses per Court instruction on 7/14/2022. Then, Defendants again resent discovery on 12/8/2022. As part of the motion, Defendants attached their discovery responses. While the Court does not evaluate the adequacy of these responses, it goes without saying that a motion to compel further, not a motion to strike, is the correct mechanism for challenging deficient discovery responses. Plaintiff did not oppose this motion to dispute Defendants’ contention that these discovery responses were provided as claimed.

            In light of Defendants’ explanation for their failure to oppose Plaintiff’s motion to strike, and their new evidence that they did, in fact, respond to discovery, the Court finds it appropriate to reconsider its previous ruling striking Defendants’ answers.

            Based on the foregoing, Defendants’ motion for reconsideration is granted.

It is so ordered.

Dated:  May    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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