Judge: Michael E. Whitaker, Case: 23SMCV02556, Date: 2024-12-19 Tentative Ruling

Case Number: 23SMCV02556    Hearing Date: December 19, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

            On June 9, 2023, Plaintiff Sonya Daniels (“Plaintiff”) filed suit against Defendants Body By Batal Cosmetic Surgery Center (“Surgery Center”) and Obaida Batal, M.D. (“Batal”) (together, “Defendants”) alleging one cause of action for professional [medical] negligence. 

            Defendant Batal now moves to withdraw the admissions entered against him by the Court’s September 18, 2024 Order.  Plaintiff opposes the motion and Batal replies.

            Plaintiff also moves for monetary and terminating sanctions against Batal for abuse of the discovery process.  Batal opposes the motion for sanctions and Plaintiff replies.

LEGAL STANDARDS

            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. 

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  Because 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 from default.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].) 

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

A.    DISCRETIONARY RELIEF

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

B.    MANDATORY RELIEF

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.

(Code Civ. Proc., § 473, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896.)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.) 

ANALYSIS

I.                THE COURT’S SEPTEMBER 18 ORDER

On September 18, 2024, the Court granted Plaintiff’s motion to deem matters specified in Plaintiff’s Requests for Admission (“RFA”), Sets One, One/Two, Three, and Four, propounded on Batal.  (Minute Order, Sept. 18, 2024.) 

In so holding, the Court found Plaintiff electronically served Batal with the RFA Sets One, One/Two, and Three on June 18, 2024, and Set Four on June 30, 2024, such that Batal’s responses were due July 22 and August 1, respectively.  Plaintiff provided declarations indicating that as of August 8, 2024, she had not received responses to any of the RFAs.  (Declarations of Sonya Daniels at ¶ 4.)  On August 12, Batal (erroneously) filed responses to the RFA Sets One, One/Two, and Four. 

At the original August 27 hearing, Plaintiff represented to the Court that Batal had not actually served Plaintiff with the RFA responses that were filed, and the Court noted that the filed RFA responses did not contain proofs of service.  Batal represented to the Court that he had electronically served the responses on Plaintiff approximately two weeks before the hearing. Both Plaintiff and Batal were unrepresented by counsel at the August 27 hearing.  The Court continued the hearing to permit Batal to file a supplemental declaration with attached proofs of service.

Batal subsequently filed “Defendants’ Separate Statement about Electronic proof of service” which was not signed under penalty of perjury.  Attached to the “Separate Statement” was a proof of service, indicating Batal electronically served Plaintiff with the following documents on August 10, 2024:

Proof of Electronic Service

Response (name extension)

Reply (name extension)

Reply (name extension)

The Court found these documents insufficient to demonstrate Batal had served Plaintiff with responses to any of the RFA and granted Plaintiff’s motion to deem all RFA admitted, and awarded mandatory monetary sanctions in the amount of $250 for the four motions.  (Minute Order, Sept. 18, 2024.)

II.             BATAL’S MOTION TO WITDHRAW ADMISSIONS

            In support of Batal’s motion for relief, Batal provides a declaration, which indicates as follows:

1. I am a medical doctor licensed to practice in the State of California. I am a Defendant in the instant action. If called to testify, I could and would competently testify to the following based on my own personal knowledge.

2. Ever since being served with this lawsuit, I have believed it to be entirely without merit, if not fraudulent. I believed that I could successfully represent myself in the case. I was also concerned that if I reported the case to my professional liability insurance carrier, it would negatively affect my insurance premiums.

3. Over the course of the litigation, Plaintiff SONYA DANIELS served me with four different sets of Requests for Admissions: Set One, Set “One, Two” [Two], Set Three, and Set Four. I served Ms. Daniels with responses to what I thought was each set of Requests for Admissions on August 10, 2024 via the electronic service portal at All-N-One Legal Solutions, Inc. (“All-N-One”). A true and correct copy of the transmission receipt from All-N-One to Plaintiff’s e-mail address for electronic service in this action (sonyamariedaniels3@gmail.com), dated August 10, 2024, is attached hereto as Exhibit A.

4. In reviewing my All-N-One portal and my file regarding this action, it appears that I served Plaintiff with responses to only Requests for Admissions, Set One, Set “One, Two” (what I called “Set Two”, and Set Four on August 10, 2024. True and correct copies of the responses to each of these sets of Requests for Admissions, as well as a Proof of Service, as electronically served to Plaintiff via All-N-One on August 10, 2024, are attached hereto as Exhibits B, C, D, and E respectively.

5. Again, it was my belief at the time (August 10, 2024) that I had prepared substantive verified responses without objections to each of Plaintiff’s pending sets of Requests for Admissions, including Set Three. Inasmuch as I cannot find any responses to Set Three in my file, I must have simply lost track of that set of admissions in the course of trying to manage my very busy medical practice and handle this litigation. I did not realize this error until I began working with my current attorneys to prepare a motion to withdraw the admissions. In addition, while reviewing my responses with counsel in the process of preparing this motion, I realized that I left eight (8) of my responses to Plaintiff’s Requests for Admissions, Set One as objection-only responses, as well as all of the responses to Sets “One, Two” and Four. I had intended to revise the responses to give substantive answers to all of the requests prior to serving them, but forgot to do so, because I was unable to manage handling this litigation along with my medical practice. Again, I only realized this error when I began working with my current attorneys to prepare a motion to withdraw the admissions. In order to ensure that Plaintiff has complete substantive responses to all of Plaintiff’s Requests for Admissions, I am serving such responses in conjunction with this motion.

6. Per the court’s order of August 27, 2024, I filed a Proof of Service of the August 10, 2024 responses with the court. See Exhibit E. The Proof of Service had been prepared on my behalf by All-N-One at the time of service using a Judicial Council form. Unfortunately, I did not realize that the form did not fully and specifically identify what documents had been served. I did not realize this until the continued hearing on the motion on September 18, 2024, when the court held the Proof of Service I had filed was deficient, and granted the Plaintiff’s motion.

7. I was electronically served with Plaintiff’s Motion for Summary Judgment on or about September 25, 2024, which was based on the admissions entered against me. At that point, I contacted an acquaintance who is an attorney to ask for her advice, and she recommended I contact my liability insurance carrier. I did so, and on or about October 24, 2024, they retained my now-counsel of record, LaFollette Johnson DeHaas Fesler & Ames.

8. Thereafter, I have worked diligently with my attorneys to do whatever is necessary to have the admissions withdrawn. I wish to defend this case vigorously on the merits and am prepared to do so. I respectfully request that the court grant me relief from my mistake.

(Batal Decl. ¶¶ 1-8.)

            Plaintiff contests the authenticity of the proofs of service and requests sanctions.  The Proof of Service Batal filed with the Court on August 12, 2024 was electronically signed by Batal and indicates Batal electronically served Plaintiff from his own email address of batal.obaida@gmail.com.  This proof of service is faulty untrue, as Batal did not personally email Plaintiff copies of the responses.  Instead, as Batal has previously asserted in declarations and briefs, Plaintiff was electronically served by All-N-One Legal. 

            The EService Order Summary Batal submitted in connection with the September 16, 2024 Status Report lists in the top right corner the email address “operations@rapidlegal.com” whereas the version of the EService Order Summary Batal submitted in connection with this motion (as Exhibit A) lists the email address “support@allnonelegal.com.” Further, the eServe date listed on the EService Order summary indicates service was made at 22:24:13 whereas the proof of service signed by Batal indicates service was made at 22:23:16. 

            Plaintiff contacted Rapid Legal which indicated it had no record of the transaction or service to Plaintiff’s email address.  (Ex. F to Daniels Decl.)

            In response to these inconsistencies, Batal responds, “So what? The EOSs were obtained from All-N-One’s website almost two months apart.  Perhaps All-N-One changed the address to which customer service inquiries were to be directed.  In any event, the customer service email address is not material.”  (Opposition to Motion for Sanctions at p. 5.)

            Comparing Daniels’ declarations indicating that she never received service with Batal’s declaration that Plaintiff was electronically served with RFA Sets One, One/Two, and Four on August 10, the Court does not find Batal credible.  As a threshold matter, the proof of service Batal electronically signed and submitted to the Court on August 12, 2024, indicating Batal personally electronically served Plaintiff with the discovery responses from his email address on August 10, 2024 at 22:23:16 was patently untrue.  While this alone could be explained by Batal’s inexperience with litigation and misunderstanding of the proof of service form, Batal has continued to demonstrate deception in other ways.

For example, Batal admits in his declaration that he initially did not report this litigation to his insurance carrier, because he did not want his insurance premiums to increase.  (Batal Decl. ¶ 2.) 

Further, Batal provides no reasonable explanation for an entirely different service company – Rapid Legal – appearing at the top of the EService Order supposedly prepared by All-N-One Legal.  Nor does Batal provide any evidentiary support for his contentions that he obtained the two EService Reports from All-N-One’s website almost two months apart.

            Thus, Batal has not sufficiently demonstrated that he, All-N-One Legal, Rapid Legal, or anyone else ever electronically served Plaintiff with responses to the RFA sets One, One/Two, and Four on August 10, 2024. 

Notwithstanding, Batal has demonstrated that he has now served Plaintiff with revised responses to all RFA in conjunction with this motion, correcting responses that were previously inadvertently made as objections only (Batal Decl. ¶ 5), and Plaintiff has not contested this. 

            Further, Batal has demonstrated that while unrepresented by counsel, he erred in adequately managing both this action and his medical practice by, among other things, failing to timely serve Plaintiff with complete responses to all the RFA, appropriately respond to Plaintiff’s Motion to Deem Admitted, or provide accurate and complete proofs of service to the Court.  The Court acknowledges that to the pro per litigant, “interrogatories, requests for admissions, law and motion proceedings, and the like” are “baffling devices.”  (Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1363, quoting Burley v. Stein (1974) 40 Cal.App.3d 752, 755, fn. 3.)

Further, the law favors adjudicating disputes on the merits.  (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 509 [“Finally, all things being equal, we deem it preferable to apply our decisions in such a manner as to preserve, rather than foreclose, a litigant's day in court on the merits of his or her action”].)

Now that Batal is represented by counsel, the Court expects that Batal will not encounter any further issues serving Plaintiff documents or providing complete and accurate proofs of service to the Court, and can proceed with fairly adjudicating the dispute on the merits.

            Regarding prejudice, in connection with the Motion to Deem Admitted, Plaintiff was already awarded mandatory sanctions, which Batal does not contest.  Plaintiff has since filed a motion for summary judgment, based on the admissions being deemed admitted, but the Court does not see any prejudice in permitting Batal to litigate the case on the merits.

            Thus, the Court finds that relief is warranted under both Code of Civil Procedure sections 473 and 2033.300, and that further sanctions are not warranted at this juncture.

CONCLUSION AND ORDER

Having found Batal erred in failing to adequately manage this case unrepresented while also managing his medical practice, and that Plaintiff will not be unduly prejudiced by the relief sought, which will enable Batal to litigate the dispute on the merits, the Court grants Batal’s motion in its entirety. 

Therefore, the Court sets aside the Court’s September 18 order deeming RFA Sets One, One/Two, Three and Four admitted under Code of Civil Procedure section 473, subd. (b), and permits Batal to withdraw the RFA responses filed with the Court on August 12 and amend them to the versions as served on Plaintiff in conjunction with this motion under Code of Civil Procedure section 2033.300.  

Further, the Court denies Plaintiff’s motion for sanctions in its entirety.

            Batal is ordered to provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED:  December 19, 2024                                    ___________________________

                                                                              Michael E. Whitaker

                                                                              Judge of the Superior Court