Judge: Linda S. Marks, Case: 2019-01047049, Date: 2022-10-10 Tentative Ruling

Motion to be Relieved from Matters Deemed Admitted filed by James Suehr on 2/3/22

Code of Civil Procedure section 2033.300 states:

“(a) 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.

(b) 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.

(c) 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the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.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.”

“The trial court's discretion in ruling on a motion to withdraw or amend an admission...must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice.” (New Albertsons, Inc. v. Superior Ct. (2008) 168 Cal.App.4th 1403, 1420.)

Here, Plaintiff and Cross-Defendant James Suehr (“Plaintiff”) seeks an order relieving him of admissions deemed admitted pursuant to the Court’s August 30, 2021 Order. (See ROA 280 [granting Motion to Deem RFA, Set No. Two, admitted].) Plaintiff presents evidence that at the time the Requests for Admissions (“RFAs”) were served he was represented by counsel, Joseph Rosenblit; that Plaintiff was represented by Mr. Rosenblit until on or about July 26, 2021 when the Court granted his motion to be relieved as counsel for Plaintiff; that Plaintiff was in pro per until just days before the hearing on the Motion to Deem RFAS admitted was heard; that Ryan E. Jackman substituted in as counsel for Plaintiff on August 26, 2021; that just prior to the hearing on August 30, 2021 and after having received documents from Plaintiff, Mr. Jackman “informed Plaintiff that there were responses to the request for admissions set no. two that could be located”; that Mr. Jackman “prepared responses to each of the requ4et for admissions found in set no. two and served them on Defendant’s counsel”; that Mr. Rosenblit had told Plaintiff that “all discovery was responded to and that Defendant’s counsel was just trying to waste time on discovery”; that Mr. Rosenblit never informed Plaintiff that the responses to the RFAS had never been completed; that it was represented to Plaintiff that Mr. Rosenblit did respond to the RFAs; that Mr. Rosenblit had abandoned Plaintiff; and that Plaintiff “truly did not know that [his] prior counsel had not properly responded to the request for admissions set no. two”; and that Mr. Rosenblit informed him that he had missed the responses because his wife had cancer. (See J. Suehr Decl., ¶¶ 3-5; see also Ryan Decl., ¶¶ 3-4, Exh. 3 (Suehr’s Responses to RFAS, Set No. Two, dated 8/29/21 and Verified as of 8/29/21.)

It is noted that Exhibit 3 to Ryan’s Declaration does not contain the “right’ Proof of Service. The POS attached concerns “Defendant Michael Aminpour’s Response to Plaintiff Early Sullivan Wright Gizer’s Request for Admissions” – obviously a different case and not a proper POS.

Plaintiff also contends that Defendant and Cross-Complainant David Scott (“Defendant”) will not be prejudiced if this Motion is granted since there is currently no trial date, written discovery in this matter has just begun, and the amended discovery will cause the need to re-do any other discovery. (See Jackman Decl., ¶ 5.)

In Opposition, Defendant contends that there is no “evidence” of “mistake, inadvertence, of excusable neglect” to warrant granting of this Motion; that Plaintiff’s current counsel, Mr. Jackman, even appeared at the August 30, 2021 hearing on the Motion to Deem RFAs admitted and made the same arguments raised in this Motion; that Plaintiff’s excuses for not serving responses are grievances aimed at his prior counsel (and that he can bring a malpractice action against him); that Plaintiff was dilatory in bringing this Motion since it was filed five months after the August 30, 2021 hearing; and that Defendant will be prejudiced if the Motion is granted since Defendant has relied on the RFAS being deemed admitted in forming and pursing discovery and litigation plans and strategy; that a great deal of time and resources have been incurred in commencing a motion for summary judgment or adjudication that relies on the RFAS being deemed admitted; and that Defendant will be forced to conduct more discovery to obtain answers to admissions presently deemed admitted. (See Boss Decl., ¶¶ 14-22.)

Here, although Defendant disputes that Plaintiff’s failure to serve his Responses to the RFAs was based on mistake, inadvertence, or excusable neglect, Plaintiff does provide evidence that he believed that responses had been served and that he did not know that his prior counsel had not properly responded. (See supra.) It also does appear that Plaintiff did delay in filing this Motion considering the Court deemed the admissions admitted on August 30, 2021 and this Motion was not filed until February 3, 2022.

Nevertheless, the Court finds that there is no evidence of substantial prejudice to Defendant if this Motion is granted considering trial is set for June 19, 2023—more than 1 year from now.1 Further, although Defendant contends that efforts have been made towards drafting a motion for summary judgment or adjudication in reliance on the deemed admissions, no such motion has yet been filed. “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief.” (New Albertsons, Inc. v. Superior Ct. (2008) 168 Cal.App.4th 1403, 1420.)

It is noted that Defendant contends that Plaintiff’s Motion is procedurally inadequate because the proposed Responses is not verified. Plaintiff, however, does not move pursuant to C.C.P. section 2033.280(a), but the Motion is made pursuant to C.C.P. section 2033.300. As such, there is no requirement that Plaintiff should have served a response in substantial compliance with C.C.P. section 2033.210, 2033.220, and 2033.230. The proposed Response is the same to each RFA – that Plaintiff has insufficient information to admit or deny the request and thus “denies this request.” Defendant contends in the Opposition that this is not even a genuine response as the Requests seek information known to Plaintiff. This appears true, but Defendant can meet and confer once the Response is served and then file a motion to compel further responses if necessary.

Tentative Ruling: Plaintiff/Cross-Defendant James Suehr’s Motion for Relief from Deemed Admissions is GRANTED. The Court ORDERS Plaintiff to serve the Responses to the Request for Admissions, Set No. Two, along with a Verification within the next 5-calendar days.

Moving Party is to give notice.