Judge: Kerry Bensinger, Case: 22STCV05100, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCV05100    Hearing Date: February 7, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On February 9, 2022, plaintiff Carol Sussman (“Plaintiff”) filed this dog bite action against defendants Adam Rosen and Angela Rosen (“Defendants”).

On April 13, 2022, Defendant Angela Rosen filed a Cross-Complaint against Plaintiff for negligence, strict liability, and negligence – statutory violation.

Trial is currently scheduled for August 9, 2023.

On November 8, 2022, the Court granted Defendants’ motion to deem request for admissions admitted against Plaintiff.

Plaintiff seeks an order relieving her from the deemed admissions.

II.          LEGAL STANDARD

Code of Civil Procedure § 2033.300, states in relevant part: “[t]he 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).)

III.        DISCUSSION

Plaintiff moves for relief from deemed admissions on November 8, 2022 based on mistake, inadvertence, or excusable neglect. Plaintiff’s counsel represents that a former clerk with the firm, Ms. Varkel, was communicating with defense counsel regarding the subject discovery and never communicated the response deadlines to counsel.   August 1, 2022, when counsel received the motions to compel, was the first-time counsel learned of the continued failure of their office to provide responses. Ultimately, counsel was able to complete responses and served them electronically on October 5, 2022.  On November 2, 2022 defense counsel indicated he did not receive responses.  Plaintiff’s counsel resent the email and responses. On November 3, 2022, counsel’s office emailed defense counsel to reach out, and thereafter reached out at least 10 different times with no response. Plaintiff’s counsel was unaware he had to file an opposition prior to the November 8, 2022, hearing. 

Defendants oppose the motion, but their arguments are unavailing. The Court finds that the failure to respond to the RFA’s was the result of mistake, inadvertence, or excusable neglect, and that Defendants will not be substantially prejudiced.  Plaintiff’s counsel has shown that due to his office’s lack of communication by a former clerk, the responses were not sent prior to the motion being filed. Thereafter, counsel attempted to send the responses electronically, and it is somewhat unclear why defense counsel did not see the responses, but it appears to have been electronic error, or a mistake by the sender. However, upon receiving notification that the responses were not received, counsel promptly resent them and tried to communicate with defense counsel prior to the hearing on the motion, set for November 8, 2022.  Further, due to mistake, inadvertence, and/or excusable, Plaintiff’s counsel did not file an opposition or the discovery responses with the Court prior to the hearing, and thought attending the hearing would have been sufficient.  Accordingly, it is clear that Plaintiff was attempting to serve the responses multiple times and due to mistake, inadvertence, and/or excusable neglect of counsel, was unable to timely do so. There does not appear to be any prejudice to Defendants as trial is in August and they received the responses many months ago.

Based on the foregoing, the motion is GRANTED.

IV.         CONCLUSION

Plaintiff’s motion is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 7th day of February 2023