Judge: Lisa R. Jaskol, Case: 21STCV22874, Date: 2023-10-10 Tentative Ruling
Case Number: 21STCV22874 Hearing Date: October 10, 2023 Dept: 28
Having considered the moving, opposing, and supplemental papers, the Court rules as follows.
BACKGROUND
On June 18, 2021, Plaintiffs Caroline Thompson (“Thompson”) and Jessie Vesagas (“Vesagas”) filed this action against Defendants 940 East Colorado, L.P. (“940”), FIC-Master Lessee, LLC (“FIC”), Canoga Healthcare, Inc., Beverly Enterprises - California, Inc., Beverly Enterprises, G.B.T, a Partnership, Grossman Family, LLC, Theodore Birnkrant, Carole Birnkrant, Michael Birnkrant, Sally J. Birnkrant, Thomas Birnkrant, Janet Birnkrant-Levine, Gary M. Tearson, Rosalinda Villaraza, and Does 1-100 for negligence (motor vehicle), negligence and premises liability, and loss of consortium.
On September 22, 2021, 940 and FIC filed an answer. On December 10, 2021, Defendant Canoga Healthcare, Inc. dba West Hills Health and Rehabilitation Center filed an answer.
On August 19, 2022, the Court dismissed Defendant Rosalinda Villaraza with prejudice after granting her motion to enforce a settlement agreement.
On July 3, 2023, the Court granted FIC’s motion for an order that the truth of matters specified in requests for admission, set one, propounded to Plaintiffs be admitted.
On August 7, 2023, Plaintiffs filed a motion for leave to amend or withdraw admissions, for relief from waiver of objections, for relief or continuance necessary to cure or address any inadvertence, mistake, excusable neglect, and request for sanctions against FIC and its defense attorneys of record. On September 27, 2023, FIC filed an opposition. On October 5, 2023, Plaintiffs’ counsel filed a declaration supporting the motion.
Trial is currently scheduled for December 6, 2023.
PARTIES’ REQUESTS
Plaintiffs request that the Court grant leave to amend or withdraw the admissions. Plaintiffs also request $2,500.00 in monetary sanctions and all available issue, evidentiary or terminating sanctions.
FIC requests that the Court deny the motion and impose sanctions of $1,100.00 on Plaintiffs.
LEGAL STANDARD
Code of Civil Procedure section 2033.300 provides:
“(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.
“(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.”
(Code Civ. Proc., § 2033.300.)
Code of Civil Procedure section 473, subdivision (b):
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
A. Overview
On March 21, 2023, FIC filed a motion for an order that the truth of the matters specified in its requests for admissions propounded to Plaintiffs be deemed admitted. On June 12, 2023, Plaintiffs filed an opposition. On June 15, 2023, FIC filed a reply. The hearing was set to be heard on June 23, 2023.
On June 23, 2023, the Court heard argument on its tentative ruling granting the motion. In the tentative ruling (posted June 22, 2023), the Court rejected Plaintiffs’ argument that they provided responses to FIC’s requests for admissions on August 2, 2022. According to Plaintiffs, these responses – which list 940 in the caption and as the propounding party and do not mention FIC – mistakenly “omitted” FIC’s name from the title of the responses. To support this argument, Plaintiffs asserted, wrongly, that the requests for admission served on Plaintiffs by 940 and FIC were identical. The tentative ruling concluded that Plaintiffs failed to serve responses to FIC’s requests for admissions and therefore granted FIC’s motion and awarded sanctions against Plaintiffs and their counsel.
At the June 23 hearing, Plaintiffs’ counsel announced that she had served responses to FIC’s requests for admission earlier that day, prior to the hearing. FIC’s counsel responded that these newly-served responses were merely copies of the responses previously served on 940, with FIC’s name and the word “amended” written on the documents. The Court continued the hearing to July 3, 2023 to determine whether Plaintiffs served responses to FIC’s requests for admission prior to the June 23, 2023 hearing. The Court ordered FIC to file a copy of Plaintiffs’ just-served responses with the Court. On June 26, 2023, FIC filed a supplemental brief attaching copies of the responses that Plaintiffs served on June 23, 2023.
On July 3, 2023, the Court reviewed Plaintiffs’ purported responses, served before the hearing on June 23, 2023, to FIC’s requests for admission and concluded they did not constitute true responses for purposes of Code of Civil Procedure section 2033.280, subdivision (a)(1). (See July 3, 2023 minute order.) The Court declined to consider another set of responses which Plaintiffs filed after the June 23, 2023 hearing because Code of Civil Procedure section 2033.280, subdivision (c), authorizes the Court to consider untimely responses to requests for admission party only if they are served “before the hearing on the motion . . . .” (Code Civ. Proc., § 2033.280, subd. (c).) Accordingly, the Court granted FIC’s motion for an order that the truth of the matters specified in its requests for admissions propounded to Plaintiffs (set one) be deemed admitted.
B. Plaintiffs’ motion
In New Albertson’s Inc. v. Superior Court (2008) 168 Cal.App.4th 1403 (New Albertson’s), the Court of Appeal explained: “The trial court’s discretion in ruling on a motion to withdraw or amend an admission is not unlimited, but must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. 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. Accordingly, the court’s discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party’s action or defense on the merits.” (New Albertson’s, supra, 168 Cal.App.4th at pp. 1420-1421.)
Applying this standard, the Court of Appeal held the trial court abused its discretion in denying the defendant’s request to withdraw an admission because the admission was based on a mistaken belief that a photograph showed a bag of ice on the floor. In fact, the item in the photograph was a wrapper for a cervical collar. The Court of Appeal concluded the error in identifying the item was not “clearly inexcusable.” (New Albertson’s, supra, 168 Cal.App.4th at p. 1421.)
Here, Plaintiffs' motion repeats the arguments which the Court has specifically rejected. While the Court previously explained that the requests for admission served by FIC and 940 were not identical – and Plaintiffs could not satisfy their obligation to respond to FIC’s requests for admission with a copy of Plaintiffs’ responses to 940’s requests for admission – Plaintiffs’ motion again asserts, wrongly, that FIC and 940 served “identical” requests for admission and Plaintiffs were justified in serving a “combined response.” The error was not, as Plaintiffs claim, “mistakenly omit[ing] FIC-MASTER LESSEE, LLC’s name from Plaintiffs’ responses intended for Defendants 940 E. COLORADO L.P. and FIC-MASTER LESSEE, LLC’S identical and simultaneous Requests for Admissions (Set One).” (Motion p. 8.) The error was failing to prepare and serve a separate response to FIC’s separate requests for admissions. Plaintiffs’ persistence making this erroneous assertion, in the face of the Court’s explanation of the error, was not excusable.
Plaintiffs also argue their former attorney’s “severe illness caus[ed] physical and cognitive impairments . . . .” (Motion p. 8.) Former counsel’s supporting declaration, however, asserts that her illness caused her to “inadvertently, mistakenly, and unintentionally omitted Defendant FIC-MASTER LESSEE, LLC’S name as a propounding party in Plaintiffs’ identical discovery responses.” (Declaration of Jenna R. Roca ¶ 7; see ibid. [“My mistakes in relation to the Plaintiffs’ responses were solely a result of the above-described illness, including my unintentional omission of FIC-MASTER LESSEE LLC’s name in the Plaintiffs’ identical responses to the Defendants’ identical Requests for Admission”].) Plaintiffs do not assert that their former attorney’s illness prevented her from preparing and serving a response to FIC’s separate requests for admission.
Therefore, Plaintiffs’ initial moving papers do not establish that the July 3, 2023, order deeming admitted the matters specified in FIC’s requests for admission was the result of Plaintiffs’ or Plaintiffs’ counsel’s mistake, inadvertence, or excusable neglect for purposes of Code of Civil Procedure section 2033.300 or the discretionary relief provision of Code of Civil Procedure section 473, subdivision (b).
Plaintiffs also appear to invoke the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). The mandatory provision does not apply here because the Court’s order granting FIC’s motion to deem admitted the matters specified in FIC’s requests for admission did not result in (1) a default entered by the clerk against Plaintiffs which will result in entry of a default judgment or (2) a default judgment or dismissal entered against Plaintiffs. (See Code Civ. Proc., § 473, subd. (b).)
C. The declaration submitted by Plaintiffs’ newly-retained counsel
On October 5, 2023, Plaintiffs’ newly-retained counsel filed a declaration acknowledging that the requests for admission served on Plaintiffs by 940 and FIC were not identical. Newly-retained counsel asserts that previous counsel’s mistaken belief that the two requests for admission were identical was “simply a clerical error.” The declaration states that in an effort to correct the error, on October 4, 2023, Plaintiffs’ newly-retained counsel sent FIC full and complete, code-compliant responses to the requests for admission.
The Court is not convinced that previous counsel’s failure to serve a separate response to FIC’s requests for admissions can be characterized as a clerical error. (Cf. Wiz Tech., Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17 [“Nor did the trial court abuse its discretion in ruling that even if Wiz's motion were considered under Code of Civil Procedure section 473, relief for mistake, inadvertence, surprise or excusable neglect would not be warranted. Section 473 cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence in opposition to a summary judgment motion. [Citation.] ‘There is nothing in section 473 to suggest it “was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.” ’ [Citation.] Counsel's failure to understand the type of response required or to anticipate which arguments would be found persuasive does not warrant relief under section 473. [Citation.]”].)
Nonetheless, “[b]ecause 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.” Based on newly-retained counsel’s declaration acknowledging the previous error, the Court finds that the July 3, 2023 order deeming admitted the matters specified in FIC’s requests for admission was the result of mistake, inadvertence, or excusable neglect. The Court also finds that FIC will not be substantially prejudiced in maintaining its defense on the merits.
FIC may file a request for leave to “pursue additional discovery related to the matter involved in the withdrawn or amended admission.” (Code Civ. Proc., § 2033.300, subd. (c)(1).) In addition, FIC may file a request for “[a]n 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)(2).)
The Court denies both parties’ requests for sanctions.
CONCLUSION
The Court DENIES the request for sanctions of Plaintiffs Caroline Thompson and Jessie Vesagas.
The Court DENIES Defendant FIC-Master Lessee, LLC’s request for sanctions.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.