Judge: Kevin C. Brazile, Case: 22STCV32367, Date: 2023-03-30 Tentative Ruling

Hearing Date: March 30, 2023

Case Name: Kwan, et al. v. Black, et al.

Case No.: 22STCV22928

Matter: Motion for Relief from Waiver of Objections 

Moving Party: Defendant Meshia Moss

Responding Party: Plaintiffs Kevin Kwan and Adam Mjolsness

Notice: OK

Ruling: The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On July 19, 2022, Plaintiffs Kevin Kwan and Adam Mjolsness filed the operative First Amended Complaint (“FAC”) against Defendants Tijeron Black, Meshia Moss, Esq., and Project VII Recordings, LLC for (1) conspiracy, (2) fraud and deceit, (3) constructive trust, (4) fraudulent transfer, and (5) aiding and abetting fraudulent transfer.  Plaintiffs allege that they were induced by Defendants to loan them $258,800.24 for false medical and business reasons; that Defendants used the money to purchase real property; and that Defendants transferred the assets amongst themselves to avoid liability.  

On February 6, 2023, the Court compelled Defendant Moss to provide responses to Plaintiffs’ form interrogatory no. 17.1, without objections.

Defendant Moss now seeks to set aside her waiver of objections based on excusable neglect, mistake, and/or inadvertence.  Moss contends that “[a]t the exact time the Requests and the Form Interrogatories issued (i.e., November 2, 2022) and were due (30 days after service thereof), Defendant Moss’ counsel, Attorneys Michael Blue and George Aloupas, were in the midst of a six-week jury trial in San Bernardino County where the compensatory/liability phase lasted from November 2, 2022 to December 20, 2022. Blue Dec., ¶¶ 7-17. On the basis of the foregoing, virtually all attention was paid to that jury trial as 14 witnesses were called, two experts, a treating doctor, three police officers, and various other witnesses, including two published authors and numerous family members of the plaintiff therein. . . . . Because said counsel was so engaged, it did not have the chance or time to more thoroughly review Defendant Moss’ responses to the Plaintiffs’ abusive 127 Requests for Admission and the even more abusive corresponding Section 17.1 Form Interrogatories Blue Dec., ¶ 25. As a result thereof, said counsel did not realize Defendant Moss had not provided responses to the various Form Interrogatories related to the various denials to the extraordinary 127 Requests. Blue Dec., ¶ 26. To be sure, had such realization occurred, counsel would have ensured responses to the said Form Interrogatories were issued and served. Blue Dec., ¶ 27.”

Code Civ. Proc. § 2030.290(a) provides that the Court may relieve a party from its waiver of objection when “(1) The party has subsequently served a response that is in substantial compliance with [the Code of Civil Procedure, and] (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”

Moss’ counsel specifically states, “Because said counsel was so engaged, counsel did not have the chance or time to more thoroughly review Defendant Moss’ responses to the Plaintiffs’ abusive 127 Requests for Admission and the even more abusive corresponding Section 17.1 Form Interrogatories.”

Respectfully, simply being too busy is not excusable conduct warranting relief.  (See Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 [being “busy with other matters during the relevant period” “standing alone would not constitute excusable neglect”], superseded by statute on another point as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65; Dow v. Ross (1891) 90 Cal. 562, 563-564 [excusable neglect was not shown by attorney's explanation that “he was extremely busy in preparing, serving, and filing papers in another case, and attending to other pressing engagements”]; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355 [counsel's description of the “ ‘stresses of a busy law practice,’ the ‘hurry to meet the deadline,’ and ‘several concurrent obligations due to other pending litigation’ ” did not show excusable neglect].)

The Motion is denied.  The Court declines to award sanctions.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.