Judge: Michelle C. Kim, Case: 19STCV37719, Date: 2023-05-02 Tentative Ruling

Case Number: 19STCV37719    Hearing Date: May 2, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Michael Eric Anderson (“Plaintiff”) filed this action against Defendant Hank Lachman (“Defendant”) for injuries Plaintiff sustained after Defendant intentionally discharged a firearm at Plaintiff.  Plaintiff alleges he was shot twice in the arm. 

On October 12, 2022, Defendant’s counsel Allison B. Margolin (“Margolin”) moves for an order to set aside and vacate the order entered on August 23, 2022, denying Margolin’s motion to be relieved as counsel.  No opposition has been received to this motion.

Additionally, Defendant moves to vacate and set aside the order entered on August 25, 2022, denying Defendant’s Motion to Reconsider Admissions Deemed Admitted.  Plaintiff opposes the motion. 

2. Motions to Set Aside Orders

            CCP § 473(b) states in pertinent part,

The court may, upon any terms as may be just, 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. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … 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 … dismissal entered against his or her client…

a. August 23, 2022 Order

On August 23, 2022, Margolin’s motion to be relieved as counsel for Defendant was heard and denied without prejudice.  Margolin failed to file proof of service showing the underlying motion to be relieved was served on Defendant prior to the hearing.  (Min. Order, Aug. 23, 2022.) 

Margolin now seemingly moves to set aside the August 23, 2022 order.  However, Margolin failed to file a memorandum of points and authorities with the motion.  (Cal. Rules of Court, Rule 3.1113(a) [“A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion … is not meritorious and cause for its denial …”].)  Margolin merely states in a declaration that the “order was entered through [her] inadvertence and excusable neglect, (Mot. Margolin Decl. ¶ 2). But Margolin does not otherwise provide any authority showing CCP § 473(b) can be used to set aside an order denying a motion to be relieved as counsel without prejudice.  This is insufficient to obtain the requested relief.

Furthermore, the Court notes that a subsequent motion to be relieved as counsel for Defendant filed by Margolin was granted on March 17, 2023.[1] 

Therefore, Margolin’s motion to set aside the August 23, 2022 order is denied. 

b. August 25, 2022 Order

            On July 22, 2022, Plaintiff’s motion to deem request for admissions (“RFAs”), set one, admitted against Defendant was unopposed and granted.  On August 2, 2022, Defendant filed a motion for reconsideration of the order deeming the RFAs admitted.  Defendant’s motion for reconsideration was denied on August 25, 2022, because Defendant failed to meet his burden of showing the existence of new or different facts, circumstances, or law that could not have been presented at the prior hearing.

            Defendant now moves to set aside the August 25, 2022 order denying his motion for reconsideration.  Defendant’s memorandum of points and authorities contains several case citations and statements of law.  However, Defendant does not provide any facts or arguments applying the cited authority to the requested relief.  Margolin again submits a declaration stating that the “order was entered through [her] inadvertence and excusable neglect.”  (Mot. Margolin Decl. ¶ 2.)  Moreover, Defendant fails to cite any authority holding that CCP § 473(b) can be used to set aside an order denying a motion for reconsideration.  Even if the instant motion was granted and the August 25, 2022 order was set aside, the underlying order deeming Plaintiff’s RFAs admitted against Defendant would still remain.  

To the extent that Defendant is seeking to have the order deeming the RFAs admitted, Defendant cannot seek relief under CCP § 473(b).  The proper code section for seeking such relief is CCP §§ 2033.280(a) and 2033.300.  (St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852 [CCP § 2033.300 specifically sets out the conditions under which default relief from erroneous admissions can be given, that statute must control rather than the general default statute, section 473.”] disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.)  Defendant’s “sole remedy for relief from waiver in the context of discovery is contained within the provisions of the [Discovery] Act and it cannot rely upon the provisions of section 473.”  (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal. App. 4th 263, 274-75; see also Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107 [a party may seek relief under section 473(b) where the relevant section of the discovery act contains no analogous provision for relief].)  

            Accordingly, Defendant’s motion to set aside the August 25, 2022 order is denied. 

Moving Party is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 2^nd day of May 2023