Judge: Mark C. Kim, Case: 19LBCV00693, Date: 2022-07-26 Tentative Ruling
Case Number: 19LBCV00693 Hearing Date: July 26, 2022 Dept: S27
1.
Background Facts
Plaintiff, Lex Funding, LLC filed this action against Defendants, FX
Express, Inc. and Francisco Piche Morales for damages arising out of a series
of contracts and guarantee agreements.
Plaintiff alleges Defendants entered into a series of Merchant Cash
Advance agreements with Plaintiff, pursuant to which Defendants agreed to
assign their future account receivables to Plaintiff. Plaintiff alleges Defendants breached the agreements
in a series of ways, including diverting funds to other accounts.
On May 19, 2021, Plaintiff propounded RFAs on Defendant, Francisco
Piche Morales (“Morales”). On October
28, 2021, the Court granted Plaintiff’s motion to deem the RFAs admitted,
finding Plaintiff adequately showed Defendant Morales had failed to timely
respond to the RFAs and had failed to oppose the motion.
On June 16, 2022, the Court granted Defendant Morales’ motion for an
order withdrawing and Amended Responses for Admissions with the following
conditions: (1) Plaintiff is permitted to conduct additional discovery
specifically tied to the change in RFA responses; (2) Defendant Morales is to
pay the costs associated with that discovery; and (3) Defendant Morales is
required to pay attorneys’ fees incurred by Plaintiff in conducting discovery
and opposing the motion to withdraw admissions. (See June 16, 2022 Minute
Order.) The Court continued the hearing on the narrow issue of whether attorney
fees can be imposed as a condition pursuant to CCP § 2033.300. (Id.)
2.
Motion to Withdraw Admissions re: Conditions
a. Legal
Standard on Motion to Withdraw Admissions
An admission cannot be amended or
withdrawn except by leave of court after noticed motion. CCP §2033.300(a); see Valerio
v. Andrew Youngquist Const. (2002) 103 Cal.App.4th 1264, 1272. CCP § 2033.300(a) permits amendment or
withdrawal of “deemed admissions” ordered by the court under §2033.280(b), as
well as admissions expressly made by a party. Wilcox v. Birtwhistle (1999) 21 Cal.4th 973,
979.
If relief is granted pursuant to
CCP § 2033.300, the court may impose whatever conditions are just: e.g., reopening
discovery on the matter involved; and ordering the party whose admission is
involved to pay the other's costs in conducting additional discovery. CCP § 2033.300(c); see Rhule v. Wavefront
Tech., Inc. (2017) 8 Cal.App.5th 1223, 1227-1228.
b. Analysis
i.
Attorney Fees as a Condition
Here, Plaintiff requests the Court
to impose $7,000 in attorney fees against Defendant Morales as a condition precedent
for granting Defendant Morales’ motion to withdraw admissions. See Motion at
pg. 4, Tag Decl. ¶¶ 3-36. In its moving
papers, Plaintiff argues that attorney fees qualify as an appropriate condition
precedent pursuant to CCP § 2033.300. See
Rhule, supra, 8 Cal.App.5th at 1227; see also Motion at pg. 4.
In opposition, Defendant Morales concedes
that a condition precedent can include the imposition of attorney fees. See Opposition at pg. 2. However, he reasons that “[a]warding fees for
opposing the motion to withdraw and amend the admissions is not explicitly
allowed under the statute nor is there mention of obtaining fees relating to
the original motion itself which could have been obtained when the original
motion was made.” Id. Thus, Defendant Morales argues that work totaling
$2,450 is unrelated to the opposition of his motion to withdraw admissions because
it could have been made on Plaintiff’s original motion to deem admissions
admitted. Id. Further, Defendant Morales contends that the
remaining amount of attorney fees should be reduced accordingly, and Plaintiff
should only be entitled to $4,000 in attorney fees. See Opposition at pp. 2-3.
In reply, Plaintiff contends that
the attorney fees requested are appropriate and should not be reduced. See Reply at pp. 2-3.
Upon review of the arguments
presented, the Courts does not find Defendant Morales’ contention to reduce
fees persuasive. The imposition of costs
as a condition precedent pursuant CCP § 2033.300(c) is premised on what is
just. It is undisputed that Defendant
Morales failed to respond to Plaintiff’s RFA, and as a result, this led Plaintiff
to incur attorney fees in bringing a motion to deem admissions admitted. The fact that Plaintiff did not seek sanctions
at that time is not dispositive because sanctions are mandatory under CCP §
2033.280(c). Thus, it would not be
unjust for Plaintiff to now seek to recover those monetary sanctions.
Furthermore, Defendant Morales fails to sufficiently explain how the certain fees
are overstated. Therefore, the Court grants Plaintiff’s request for attorney
fees in the amount of $7,000 against Defendant Morales as a condition precedent
pursuant to CCP § 2033.300.
3. Conclusion
Accordingly, the Court grants Plaintiff’s
request for attorney fees in the amount of $7,000 against Defendant Morales as
a condition precedent pursuant to CCP § 2033.300.
Moving Defendant is ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative. If any party does not submit on the
tentative, the party should make arrangements to appear remotely at the hearing
on this matter.