Judge Michael Small, Case Number: 22STCV27325, Date: 2023-10-24 Tentative Ruling

Judge: Michael Small, Case: 22STCV27325, Date: 2023-10-24 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 22STCV27325 Hearing Date: October 24, 2023 Dept: 57

Pending before the Court is the Plaintiffs’ motion for relief from the waiver of its objections to Defendant’s requests for admissions and the Court’s September 7, 2023 order deeming that Plaintiffs have admitted the matters in the Defendant’s requests for admission. The Plaintiffs’ motion is denied. The Court will first take up the part of the Plaintiffs’ motion that seeks relief from the Court’s September 7, 2023 order, and then will turn to the part that seeks relief from the waiver of objections.

Defendant served its requests for admission on September 22, 2022. The Plaintiffs failed to serve timely responses to Defendant’s requests for admissions. The responses were untimely because they were unverified. (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1551 [unsworn responses to requests for admissions are the same as if no responses were made at all], disapproved on other grounds by Wilcox v. Birtwhistle 21 Cal.4th 973, 983 [“Wilcox’]).

In light of the failure of the Plaintiffs to serve timely responses to Defendant’s requests for admissions, Defendant filed a motion under Code of Civil Procedure Section 2033.290(b) on August 4, 2023 for an order that the matters in the requests be deemed admitted (“the Deemed Admitted Motion”). The Deemed Admitted Motion was set for hearing on September 7, 2023. At the hearing, the Court granted the Deemed Admitted Motion. The Court was required to do so under Section 2033.290(c) because Plaintiffs did not prior to the hearing serve Defendant with verified responses to the requests for admission in substantial compliance with Section 2033.220. (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4^th 393, 395-396 [[“W]oe betide the party who fails to serve responses [to requests for admission] before the hearing [on the motion to deem the matters in the requests admitted]. In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you're out’ as applied to civil procedure.’”], disapproved of on other grounds in Wilcox, supra, 21 Cal.App.4^th at p. 983.) Indeed, instead of taking advantage of the opportunity afforded under Section 2033.280(c) to avoid the fate of having the matters deemed admitted by serving verified responses prior to the hearing on the Deemed Admitted Motion, Plaintiffs failed a statement of non-opposition to the Motion.

Plaintiffs’ motion for relief from the consequences of the Court’s order granting the Deemed Admitted Motion was filed under Section 2033.290(b), which provides that withdrawal of an admission in response to requests for admission may be permitted “if 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.” The relief afforded by Section 2033.290(c) is available in cases where the admission was the product of a court order deeming admitted a matter in requests for admissions for failure to serve responses in compliance with the Code of Civil Procedure prior to the hearing on a motion to have the matter admitted. (Wilcox, supra, 21 Cal.4th at p. 979.) Plaintiffs contend that their failure to serve timely, verified responses to the Defendants’ Requests for Admission was the result of a calendaring error by Plaintiffs’ counsel and that this error constitutes mistake, inadvertence, or excusable neglect.

In the Court’s view, Plaintiffs’ calendaring error explanation is belied by the record. For one, the record shows that the Defendant’s counsel reminded Plaintiffs’ counsel several times during the long period (almost a year) between service of the request for admissions and the filing of the Deemed Admitted Motion that Plaintiffs had not served verified responses to the requests. Second, the records shows that Plaintiffs’ counsel was aware of this problem and asked Defendant’s counsel for more time to obtain verified responses. Third, Plaintiffs’ counsel could have served verified responses up to the time of the hearing on the Deemed Admitted Motion, but instead, filed a non-opposition to the Motion. All told, this record does not manifest a calendaring error. Plaintiffs’ counsel was fully cognizant of the calendar. Rather, the record manifests inexcusable neglect. Because the Court rejects the notion that the Plaintiffs’ failure to serve timely, verified responses to the Defendant’s requests for admission was the product of mistake, inadvertence, or excusable neglect, the Court need not address whether Defendant would be prejudiced were Plaintiffs given relief from the order granting the Deemed Admitted Motion.

Turning to the part of the Plaintiff’s motion that seeks relief from the waiver of its objections to the Defendant’s requests for admissions, that waiver flowed under Section 2033.280(b) from the Plaintiff’s failure to serve timely responses to the requests for admission. Plaintiff’s request for relief from the waiver is based on Section 2033.280(b)(1) and (b) (2). That provision allows for relief from a party’s waiver of objections to requests for admission if the party ultimately serves Code-complaint responses and the failure to serve timely responses was the product of mistake, inadvertence or excusable neglect.

This relief is unavailable to Plaintiffs as well. First, a motion under Section 2033.280(b) for relief from waiver of objections to requests for admissions is inappropriate in cases where, as here, the court has entered an order deeming matters in the requests admitted. The party seeking relief from waiver of the objections must first obtain relief from the order deeming the matters admitted. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:1369.1.) The Court has denied that relief. In any event, Plaintiffs did not provide any evidence that they actually have served verified responses to the requests for admissions. And, as indicated above, Plaintiffs’ explanation of calendaring error for the failure to serve timely responses does not hold water; thus, the failure was not the product of mistake, inadvertence, or excusable neglect.