Judge: Kerry Bensinger, Case: 22STCV08121, Date: 2023-05-09 Tentative Ruling

Case Number: 22STCV08121    Hearing Date: May 9, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 9, 2023                           TRIAL DATE:  September 5, 2023

CASE:                         Erika Marroquin v. E.V.R. Trucking, Inc., et al.

CASE NO.:                 22STCV08121

MOTION TO BE RELIEVED FROM DEEMED ADMISSIONS

MOVING PARTY:               Defendant Enrique Vanegas Rivera dba EVR Trucking

RESPONDING PARTY:     Plaintiff Erika Marroquin

I.          BACKGROUND

            On March 7, 2022, Plaintiff Erika Marroquin filed this action against defendants Enrique Vanegas Rivera dba EVR Trucking (“EVR”) (sued and served as E.V.R. Trucking, Inc.) and Miguel Ramos Lucero (“Lucero”) for motor vehicle negligence arising out of Lucero’s negligent operation of a semi-tractor trailer truck that struck Plaintiff’s vehicle.

            On August 19, 2022, Defense counsel Steven R. Odell associated Byron M. Purcell into this matter as co-counsel for EVR.[1]

On August 22, 2022, Plaintiff propounded written discovery on EVR, including Request for Admissions (“RFAs”), Set One.  EVR did not respond to the written discovery.  On October 13, 2022, Plaintiff then filed motions to compel EVR’s discovery responses and to deem the RFAs admitted.  The hearing for Plaintiff’s motion to deem the RFAs admitted took place on February 16, 2023.  Neither Mr. Odell nor Mr. Purcell, on behalf of EVR, opposed the motion or appeared for the hearing, and the Court issued an order granting Plaintiff’s motion. 

During this time, Mr. Purcell’s father was diagnosed with cancer and passed away shortly thereafter on September 30, 2022.  Mr. Purcell was on bereavement leave.  Mr. Purcell first learned of the missed hearing when Plaintiff filed the Notice of Ruling on the deemed admissions (and other discovery motions) on February 16, 2023.

EVR now seeks relief from the deemed admissions.  A copy of their unverified responses to the RFAs are attached as Exhibit B to the Motion.  Plaintiff opposes and EVR replies.[2]

II.        LEGAL STANDARDS

“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.”  (Code Civ. Proc., § 2033.300, subd. (a).)  “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.”  (Code Civ. Proc., § 2033.300, subd. (b).)  This statute also applies to deemed admissions for failure to respond.  (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.)

“The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.”  (Code Civ. Proc., § 2033.300, subd. (c).)  

Because the law strongly favors trial and disposition on the merits, any doubts in ruling on a motion to withdraw or amend an admission must be resolved in favor of the party seeking relief.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1408 (New Albertsons).)  “By permitting relief under [Code of Civil Procedure, section 2033.300, subdivision (a)] we eliminate such undeserved windfalls and the resulting subversion of the policy favoring the resolution of lawsuits on the merits.”  (Wilcox, supra, 21 Cal.4th at p. 983.)

III.      DISCUSSION

A.    Analysis

EVR seeks relief from the deemed admissions because its failure to respond is attributable to defense counsel’s excusable neglect.  In support, EVR submits the declaration of defense counsel Byron M. Purcell.  Mr. Purcell states that EVR failed to provide responses to the RFAs because Mr. Purcell was dealing with his father’s cancer diagnosis and subsequent death which limited his time at work.  As such, Mr. Purcell first learned of the missed hearing for Plaintiff’s motion to deem the RFAs admitted when Plaintiff filed notice of the Court’s ruling granting the motion on February 16, 2023.  (Purcell Decl., ¶¶ 5-8.)  EVR further argues that Plaintiff will not suffer prejudice because trial is set for September 5, 2023.  For these reasons, EVR argues that it should be allowed to litigate this lawsuit on its merits.

Plaintiff contends that EVR’s motion lacks merit because EVR was represented by two law firms at the time Plaintiff propounded discovery and filed its motion to deem the RFAs admitted.  Moreover, EVR has attached unverified RFA responses, which is tantamount to no response at all.  (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 (“Unsworn responses are tantamount to no responses at all.”) 

In reply, Defense Counsel states that Plaintiff was informed of Mr. Odell’s sudden retirement from the practice of law.  As such, Mr. Purcell and his law firm take responsibility for the failure to respond to the RFAs and appear for the February 16, 2023.  Defense counsel also represents that verified responses are attached to their Reply, but no such attachments appear in the filing.

Plaintiff makes several good points.  However, the law favors trial and disposition on their merits.  (New Albertsons, supra, 168 Cal.App.4th at p. 1403.)  Mr. Purcell adequately explains his failure to respond to the motion or appear for the February 16, 2023 hearing, as well as Mr. Odell’s absence in this matter.  To be sure, failing to respond to RFAs or appear for hearing is neglectful but here, the neglect is excusable given the background of Mr. Purcell’s loss and mourning.  Further, Plaintiff does not establish she will suffer prejudice if EVR is granted relief from the deemed admissions.  Having to litigate an action on the merits is not prejudicial.  Nor has there been any trial continuances in this matter.  As trial is nearly four months away, there is sufficient time to prepare for trial, or if necessary, to seek a continuance.

IV.       CONCLUSION

            EVR’s motion to be relieved from the deemed admissions is GRANTED.  The Request for Admissions, Set One, deemed admitted on February 16, 2023, are withdrawn, effective upon EVR’s service and filing of proof service of verified, objection-free responses to Plaintiff’s Request for Admissions, Set One within 5 days of this order.

Moving party to give notice. 

Dated:   May 9, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.