Judge: Michael Shultz, Case: 21CMCV00138, Date: 2022-12-29 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 21CMCV00138 Hearing Date: December 29, 2022 Dept: A
21CMCV00138 Joel
K. Briley v. Rocket Minjizzle
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that Plaintiff
entered into a written contract with Defendant to form a business corporation
with each party holding a 50 percent interest.
The corporation purportedly bought a vehicle. However, the Los Angeles
Police Department informed the Plaintiff that Defendant stole the vehicle.
Plaintiff alleges claims for (1) breach of contract, (2) fraud, and (3) breach
of the covenant of good faith and fair dealing.
On December 14, 2021, the Hon. Thomas
D. Long granted Defendant’s unopposed motion for judgment on the pleading on
all causes of action. On January 4, 2022, Judge Long granted Defendant’s
unopposed motion to deem admitted Plaintiff’s responses to requests for admission
served by Defendant.
II.
ARGUMENTS
Plaintiff seeks relief from the court’s
order of January 4, 2022, based on Plaintiff’s mistake, inadvertence, surprise,
or excusable neglect. Plaintiff was self-represented at the time of Judge
Long’s order. Plaintiff had consulted with Gloria Dabbs about his case and mistakenly
believed that Ms. Dabbs was handling this matter. He later learned that she was
not an active attorney. Plaintiff has since retained counsel, who filed a
substitution of attorney form on December 22, 2022. Plaintiff attaches his
proposed responses to the requests for admission.
In opposition, Defendant argues that on December
14, 2021, Judge Long granted Defendant’s motion for judgment on the pleading
without leave to amend. Plaintiff has not sought relief to amend the complaint.
With respect to the deemed admitted order, Plaintiff has not asserted facts
demonstrating why his belief that Ms. Dabbs would be handling this matter was
reasonable. He does not state if he retained her or if she agreed to pursue his
claim. Plaintiff previously represented to the court in November 2021 that he
had retained new counsel, which turned out not to be true.
Defendant argues the motion is untimely
made more than 11 months after Judge Long issued his order. Plaintiff has not
responded to the other written discovery as ordered by the court, nor has
Plaintiff paid sanctions. Defendant asks the court to impose sanctions against
Plaintiff for fees incurred in having to oppose the motion.
In reply, Plaintiff argues that Defendant
concedes there is no time limit to make this motion. Plaintiff’s declaration is
sufficient to show mistaken belief. The court’s policy is to decide a matter on
its merits. Defendant does not cite any statutory basis for the imposition of
sanctions.
III.
LEGAL STANDARDS
The court can grant relief to a
party from a deemed admitted order “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. Code Civ. Proc., § 2033.300 subd. (b).
The law “strongly favors trial and disposition on the merits,” therefore, any
doubts in applying this section must be resolved in favor of the party seeking
relief. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th
1403, 1420–1421.
The court’s discretion to deny this
motion 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, at 1421.
IV.
DISCUSSION
The
six-month time limit for filing a motion for relief based on Code of Civil
Procedure section 473 does not apply. Plaintiff requests relief pursuant to a
different statute that does not impose a time limitation. Code
Civ. Proc., § 2033.300 subd. (b).
A
“mistake” sufficient to grant relief may be found where a party, “under some
erroneous conviction, does an act he would not do but for the erroneous
conviction." H.D.
Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1369. A mistake may arise either from “unconsciousness,
ignorance, forgetfulness, imposition, or misplaced confidence.” Salazar
v. Steelman (1937) 22 Cal.App.2d 402, 410. Plaintiff’s
declaration adequately demonstrates, without inquiring into privileged
communication, his mistaken belief in counsel with whom he consulted.
Defendant
has not shown any prejudice resulting from the requested relief. Trial is
currently set for April 3, 2023, and Plaintiff has retained counsel. Defense
counsel has not demonstrated why discovery cannot be completed based on the
current trial date.
Mere
self-representation is not a ground for exceptionally lenient treatment. Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 984. However, if there is no prejudice to the opposing party,
only slight evidence is needed to support granting relief. Doubts are resolved
in favor of the party seeking relief in furtherance of the policy favoring
trial and disposition on the merits. Mink v. Superior Court, (1992) 2 Cal.App.4th 1338.
Accordingly, the motion is GRANTED.
The court’s file reflects a
more immediate issue in that there is no operative pleading given Judge Long’s
order of December 14, 2021, granting the motion for judgment on the pleading.
It is not clear from Judge Long’s order whether leave to amend was granted.
However, since Plaintiff is now represented by counsel, and since the defects appear
curable, Plaintiff is ordered to file a first amended complaint within 30 days.
Colvig
v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 69–70
[noting the “well-established rule that, even where the defect is one of
substance, a demurrer should not be sustained without leave to amend if there
is a possibility that subsequent amendments will supply omitted allegations and
the plaintiff has not had a fair opportunity to so amend."].
V.
CONCLUSION
Based on the foregoing, Plaintiff’s motion is GRANTED. Plaintiff
is ordered to serve forthwith verified responses to the requests for admission
without objections and to comply with the court’s prior order with respect to
other written discovery. Based on the court’s fundamental and inherent power to control the
litigation, Plaintiff is ordered to file a First Amended Complaint within 30
days. Huang v. Hanks (2018) 23 Cal.App.5th 179, 182. The court previously imposed sanctions on Plaintiff for
Defendant’s costs and fees incurred to prepare the motion to deem requests for
admission admitted. As Defendant has not cited any statutory basis for
imposition of additional sanctions for fees and costs incurred in opposing this
motion, Defendant’s request for imposition of sanctions is DENIED.