Judge: Mark A. Young, Case: 22SMCV01124, Date: 2023-12-13 Tentative Ruling

Case Number: 22SMCV01124    Hearing Date: February 15, 2024    Dept: M

CASE NAME:           WW Westwood LP, v. Zakhour, et al.

CASE NO.:                22SMCV01124

MOTION:                  Motion to be Relieved from Deemed Admissions

HEARING DATE:   2/15/2024

Legal Standard

If a party is served with requests for admission, and then fails to serve timely responses, that party waives any objections to the discovery requests.  CCP §2033.280(a).  The court, however, may grant relief from this waiver if it determines that these two conditions are met: 

“(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, and 2030.230. 

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”

Under Code of Civil Procedure (CCP) §2033.280(c), “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section §2033.220 . . ..” 

CCP §2033.300(a) permits amendment or withdrawal of ‘deemed admissions’ ordered by the court. CCP § 2033.300 states that, “(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the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.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.” 

Analysis

Defendant Mansour Zakhor, D.D.S., moves for relief from admissions, and permission to serve responses to Plaintiff’s Request for Admissions Set No. 1.  Here, Plaintiff served the Defendant with the first set of requests for admission on March 23, 2023. Defendant’s prior counsel failed to respond at all to this discovery or any prior discovery. (Shackelford Decl., ¶ 2.) On July 12, 2023, this court granted Plaintiff’s motion to compel and deemed all admissions as admitted. (Id. at ¶ 5, Ex. B.)

Defendant has not demonstrated that the subject admissions were the result of mistake, inadvertence, or excusable neglect. Counsel claims that due to the prior counsel’s lack of any response, Defendant’s relationship with his prior counsel soured and he quickly endeavored to find new counsel. (Id., ¶ 3.) Indeed, the record shows that prior counsel filed a motion to be relieved as counsel due to irreconcilable breakdown of communication between counsel and Defendant. (Id. ¶ 4.) However, Defendant does not provide any competent evidence regarding prior counsel’s failure to respond. Notably, Defendant does not provide any statement on the matter, including what efforts he reasonably undertook to correct counsel’s inaction. Thus, there is insufficient evidence demonstrating that the admissions were taken as a result of mistake, inadvertence, or excusable neglect. 

In addition, current counsel represented Defendant as of June 5, 2023, and was served with the motions to deem admissions admitted.  Despite this representation, current counsel did not file admission responses prior to the July 12, 2023, hearing and order deeming admissions admitted.  This issue must be addressed by Defendant.  Moreover, the Court would require that Defendant answer the RFAs at issue, without objection, prior to potentially granting any such motion. Counsel claims to have worked diligently to respond to all outstanding discovery, but does not provide proof of service of the responses at issue. (Shackleford Decl., ¶ 6.) The Court would not be inclined to grant relief until Defendant presents his proposed responses.

Otherwise, the Court would find no prejudice in granting relief. Plaintiff claims prejudice in relying on the admissions, but does not explain how they were substantively. Thus, the Court would find that Plaintiff will not be substantially prejudiced.  To the extent that additional discovery must be conducted as a result of Defendant’s failure to respond, the Court would fashion an appropriate remedy.