I. BACKGROUND 

Plaintiff Jose Hernandez (“Plaintiff”) filed this action against defendants Structural Concrete Group, Inc. (“SCG”), Ismael Gutierrez, and Does 1 through 20 for (1) disability discrimination, (2) hostile work environment based on sex, (3) sexual discrimination, and (4) battery. 

On May 15, 2024, the Court granted Plaintiff’s motion for an order deeming his Requests for Admissions (“RFAs”), set one, against SCG and imposing monetary sanctions in the amount of $1,660. (Min. Order, May 15, 2024.) 

On May 29, 2024, SCG filed the instant amended motion to be relieved from the deemed admissions pursuant to CCP §§02033.300(a) and 473(b). SCG argues its counsel failed to serve code-compliant responses prior to the May 15, 2024 hearing date because of a lack of client communication, and the belief that a withdrawal as counsel would be heard in advance to provide an explanation as to why discovery had not been served. Defense counsel argues that they mistakenly and inadvertently calendared all of Plaintiff’s motions for July 3, 2024, and overlooked that the motion was set for May 15, 2024. Defense counsel declares that he served responses in the later afternoon of May 15, 2024, and that verifications were subsequently served on May 17, 2024. SCG further asserts that Plaintiff will not be prejudiced because responses were served, and SCG sent payment in the amount of $1,660. 

In opposition, Plaintiff argues that SCG concedes the RFAs, set one, were served on August 31, 2023, and that they were due on November 3, 2023. Plaintiff argues the breakdown in communication between defense counsel and SCG is not mistake, inadvertence, nor excusable neglect, and further argues that CCP § 2033.300 does not apply. Plaintiff asserts that SCG knew back in November 2023 of the due responses, and that Plaintiff lost eight months of not receiving SCG’s responses.  

In reply, SCG reiterates that they lost contact with their client, there was mistake and inadvertence in calendaring the hearing, that discretionary relief is appropriate, and that Plaintiff will not be prejudiced. 

II. LEGAL STANDARD 

A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. (Code Civ. Proc. § 2033.300, subd. (a).) The court may permit the withdrawal only if it determines the admission was the result of mistake, inadvertence, or excusable neglect, and 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 “mistake, inadvertence, or excusable neglect” under CCP § 2033.300 have similar meanings as those words used in CCP § 473(b). (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.) 

“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 not substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits.” (New Albertsons, Inc., supra, 168 Cal.App.4th at 1420–21.) 

III. DISCUSSION¿ 

SCG moves under both CCP § 2033.300 and CCP § 473(b). Plaintiff argues that CCP § 2033.300 is inapplicable, and that the mandatory relief provision of CCP § 473(b) is not available. Contrary to Plaintiff’s assertion, CCP § 2033.300 does apply to deemed admissions. (See Wilcox v. Birthwhistle (1999) 21 Cal.4th 973, 983.) However, the Court agrees that the mandatory relief provision under CCP § 473(b) is not available here. 

In providing for mandatory relief, “the Legislature created a narrow exception to the discretionary relief provision for default judgments and dismissals.” (Huh v. Wang (2007) 158 Cal. App. 4th 1406, 1414.) “By its express terms, the mandatory relief provision applies only to defaults, default judgments, and dismissals.” (Id. at 1415.) The issue here does not involve a default, default judgment, nor dismissal, and SCG appears to acknowledge the narrowness of the mandatory relief provision. The Court is not persuaded by SCG’s contention that deemed admissions is equivalent to a procedural certainty of a default judgment, nor does SCG provide any authority in support of this contention. 

Here, CCP § 2033.300’s language explicitly provides relief from deemed admissions for mistake, inadvertence, or excusable neglect, which is analogous to the discretionary relief provision in CCP § 473(b).  In contrast to the mandatory provision of section 473(b), “discretionary relief under the statute is not limited to defaults, default judgments, and dismissals....” because it applies to any “judgment, dismissal, order, or other proceeding.” (Id. at 1419.) The failure of counsel to meet a procedural deadline and counsel's failure to timely respond to a request for admissions are proper subjects for discretionary relief under the statute allowing relief from judgment for mistake, inadvertence, surprise, or excusable neglect. (Huh, supra, 158 Cal. App. 4th at 1419.) The Court need not reach Plaintiff’s contention that SCG should have brought the motion under CCP § 2033.280 instead. 

Thus, SCG must demonstrate mistake, inadvertence, or excusable neglect.