Judge: Michael E. Whitaker, Case: 22STCV01113, Date: 2023-05-15 Tentative Ruling

Case Number: 22STCV01113    Hearing Date: May 15, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

Defendant Cammaranos American Grille, LLC (Defendant) seeks relief from the Court’s order of February 9, 2023 deeming admitted the matters specified in Requests for Admissions, set one (RFA) which Plaintiff Rodney Fink (Plaintiff) propounded on Defendant.  Plaintiff opposes the motion.  Defendant replies.  

JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: . . . (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States . . . (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (d), (h).)

The Court grants Defendant’s unopposed request for judicial notice of the Court’s order of February 9, 2023 granting Plaintiff’s motion to deem admissions admitted, and notice of said order, pursuant to Evidence Code section 452.  (See Request for Judicial Notice, Exhibit B.)

ANALYSIS

            Per Code of Civil Procedure section 2033.300, a party may withdraw or amend an admission made in response to a request for admission on a noticed motion, if the court 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.”  (Code Civ. Proc., § 2033.300, subds. (a), (b).) “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 Albertsons, Inc. v. Superior Court¿(2008) 168 Cal.App.4th 1403, 1420-1421.) The court may impose any just conditions on the granting of a motion. (Code Civ. Proc., § 2033.300, subd. (c).) 

            With respect to whether a party’s failure to serve a timely response to discovery requests resulted from “mistake, inadvertence or excusable neglect,” the Court finds authorities which address similar remedial relief under Code of Civil Procedure section 473 to be instructive. 

A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.   In determining whether the attorney's mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error.  In other words, the discretionary relief provision of section 473 only permits relief from attorney error fairly imputable to the client, i.e., mistakes anyone could have made.  Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.

(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [cleaned up] (hereafter Zamora.) 

            Further, because “[t]the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief . . . .”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.”  In Elston, the California Supreme Court determined that the plaintiffs were entitled to relief under Section 473 although their attorney failed to timely respond to request for admissions.  In doing so, the California Supreme Court noted:

In his affidavit accompanying the motion, counsel stated that because two attorneys had recently left the firm, his office was understaffed at the time the request for admissions was received. Counsel was “extensively” involved in other business and litigation matters at the time. In a supplemental affidavit, counsel explained that because his office was shorthanded, the request for admissions was misplaced and he was not aware of it until he received the county's notice that the matters contained in the request were deemed admitted.  Based on counsel's showing of excusable neglect, the trial court should have granted the section 473 motion. Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted. Plaintiffs' counsel stated that because his office was shorthanded, the request for admissions “became misplaced and [he] did not become aware of [it] until [it was] overdue.” Although counsel's affidavit could have been more explicit, his “failure to show an established office calendaring procedure was not a critical omission.”

(Elston v. City of Turlock, supra, 38 Cal.3d at p. 234 [cleaned up].)  Moreover, the Elston court noted that “[s]ection 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.  In such situations very slight evidence will be required to justify a court in setting aside the default.”  (Id. at p. 233.)   Similar to Elston, the Zamora court held:

[T]he trial court reasonably concluded that the mistake made by Zamora's counsel was excusable. The erroneous substitution of the word “against” for the phrase “in favor of” is a clerical or ministerial mistake that could have been made by anybody.  While counsel's failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances.  Indeed, appellate courts have routinely affirmed orders vacating judgments based on analogous mistakes made by an attorney or his or her staff. For example, courts have set aside judgments where: (1) The attorney mistakenly checked the “with prejudice” box instead of the “without prejudice” box; (2) an associate misinterpreted the instructions of the lead attorney and gave incorrect information at a hearing; and (3) the attorney's secretary lost the answer to be filed.

(Zamora, supra, 28 Cal.4th at p. 259 [cleaned up].) 

Here Defendant advances the declaration of its former counsel, Jeffrey E. Lerman (Lerman).  Lerman states that due to multiple instances of miscommunication between himself and his assisting paralegal, Lerman failed to timely serve responses to the RFA, propounded by Plaintiff. (Declaration of Jeffrey E. Lerman, ¶¶ 4-5, 7-8.)  Lerman also noted that he did not notify Defendant of the outstanding RFA.  (Declaration of Jeffrey E. Lerman, ¶ 6.)  Lerman explains that after receipt of Plaintiff’s Motion for Order to Deem the RFA admitted, his workload was significantly heavy and he did not realize the deadline to file an opposition came and went.  (Declaration of Jeffrey E. Lerman, ¶ 12.)  There was also continued misunderstanding and lack of communication between Lerman and his assisting paralegal regarding the outstanding RFA.  (Declaration of Jeffrey E. Lerman, ¶¶ 9-11.)  Lerman notes that he did not notify Defendant of the motion compelling responses to the RFA on calendar, either.  (Declaration of Jeffrey E. Lerman, ¶ 12.)  Lerman concludes that Defendant’s failure to file timely responses to the RFA, as well as its failure to file an opposition to Plaintiff’s motion to deem the RFA admitted, was due to Lerman’s mistake, inadvertence and excusable neglect. (Declaration of Jeffrey E. Lerman, ¶¶ 13-14.) 

In opposition, Plaintiff asserts Defendant has not established its failure to respond was due to attorney mistake, inadvertence, or neglect because Lerman’s failure to respond to discovery, oppose Plaintiff’s motions, or appear for hearings does not constitute excusable neglect, but rather intentional conduct. 

In reply, Defendant notes that Plaintiff fails to advance any new evidence in support of his contention that Lerman was acting intentionally, nor does Plaintiff dispute any of the statements made in Lerman’s declaration.  Defendant avers that Lerman’s actions, incorrectly characterized by Plaintiff as intentional, instead merely demonstrate Lerman’s disorganization and inattentiveness to pertinent deadlines. 

Further the Court notes Plaintiff does not argue that the withdrawal of Defendant’s admissions would result in substantial prejudice to Plaintiff. 

CONCLUSION AND ORDER

The Court finds Defendant has demonstrated that its failure to respond to the RFA was due to mistake, inadvertence, or excusable neglect on the part of former counsel for Defendant, and Plaintiff will not be substantially prejudiced should the Court grant Defendant the relief sought.   

Consequently, the Court grants Defendant’s motion for relief per Code of Civil Procedure section 2033.300, and vacates the order of February 9, 2023 deeming admitted the matters specified in the RFA. 

Further, the Court orders Defendant to serve verified responses without objections to the RFA on or before June 2, 2023. 

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.