Judge Ralph C. Hofer, Case Number: 23GDCV01066, Date: 2023-09-01 Tentative Ruling

Plaintiff Erika W. Navarrete (referenced in the complaint caption with the spelling Navarete, and in some portions of the complaint as Navarette) alleges that in November of 2021, she acquired an interest in a single-family residential dwelling in South El Monte with defendant David A. Rodriguez, and that at the time of purchasing the subject property, plaintiff and Rodriguez were in a romantic relationship, but have never been lawfully married to one another. Plaintiff alleges that the fee simple title appearing of record to the subject property, as evidenced by a Grant Deed recorded on August 11, 2021, is vested in Rodriguez, a single man, and plaintiff, an unmarried woman, as joint tenants.

Plaintiff also alleges that defendant Broker Solutions, doing business under the fictitious name New American Funding (NAF) is the beneficiary under the deed of trust which secures the purchase money loan on the subject property, and is named in this action so that all parties in interest are before the court in this single action. Plaintiff alleges that as of the date of the complaint the principal sum due on the note secured by the deed of trust is approximately $609,827.91 and the estimated fair market value of the subject property is approximately $745,000.00.

Plaintiff alleges that plaintiff paid expenditures of $71,200 for the down payment on the subject property and paid additional expenditures of $82,513 to repair and improve the property, while Rodriguez contributed $25,000 toward the down payment, with the balance of the purchase price financed with the obligation secured against the property.

Plaintiff alleges that the monthly mortgage payment is approximately $4,140.37, that the first two months of payments were paid by Rodriguez, but thereafter plaintiff has paid, and continues to pay, all mortgage payments without assistance or contribution from Rodriguez. Plaintiff also alleges that all utilities are in plaintiff’s name and are also paid from her own funds, as are all expenses for maintenance, repair, and general upkeep.

The complaint alleges that there is no agreement between plaintiff and Rodriguez that the two would be equal partners in owning the property, nor any agreement to divide the sales proceeds in equal shares if the parties were to part and sell the property. Plaintiff alleges that the relationship between plaintiff and Rodriguez has terminated, the parties have parted ways and Rodriguez has voluntarily vacated the property and has refused plaintiff’s offers to acquire his interest in the property.

Plaintiff seeks partition by sale of the property without agreement of the parties, as more equitable than division in kind, and as a joint tenant, alleging her right to partition is absolute. The complaint also alleges that pursuant to CCP section 872.140, the court has the power to order allowances, an accounting, contribution, or other adjustments between the parties according to equity.

Plaintiff also seeks a judgment that Rodriguez holds a one-half undivided interest in the property, or the proceeds therefrom, as a constructive trustee for the benefit of plaintiff during the pendency of this action, or until the amount of each party’s respective rights, title and interest in the property has been fixed, and also that Rodriguez, his agents, employees and representatives be enjoined and restrained from encumbering the property and from committing damage, waste or destruction on the property.

The complaint also seeks a declaration that plaintiff’s and defendant’s ownership interests in the property, based on actual contributions, is plaintiff, 87% and defendant 13%, as well as a judicial determination confirming the validity and priority of the deed of trust and note secured thereby.

Defendant Rodriguez has filed a cross-complaint against plaintiff Navarrete as cross-defendant, seeking partition by sale of the subject real property held by Rodriguez and Navarrete as joint tenants, and alleging that cross-complainant desires to dispose of his interest in the subject property, which is a condominium and therefore not suitable for physical partition.

The cross-complaint also alleges that prior to the purchase of the subject property, cross-complainant and cross-defendants leased property in El Monte and opened and operated a daycare business known as “Navarrete Family Child Care,” with Rodriguez and Navarette agreeing that the business would be owned equally 50/50 by each of them, notwithstanding that the names of cross-defendants were on the license of the business. Cross-complainant alleges that he found the property, signed the lease in his name, paid the rent for approximately six months, and that the parties eventually purchased the Farndon property, which cross-complainant was responsible for upgrading to child proof and maintain the property in good condition for the running of the daycare business. The cross-complaint alleges that cross-complainant has made substantial contributions of cash and time toward the business as an owner of the business, and cross-defendants have accepted these benefits, knowing that cross-complainant claimed an interest in the business.

The cross-complaint seeks partition of the business by sale of personal property, and an accounting for the rentals and profits received from the operation of the daycare business or profits obtained from the rental of the subject real or personal property.

The file shows that on December 22, 2023, the court granted an unopposed motion by defendant and cross-complainant Rodriguez to have Requests for Admissions, Set One, deemed admitted by plaintiff and cross-defendant Navarrete, and awarded monetary sanctions against the responding party and her attorney of record in the sum of $2,560.00. Plaintiff did not appear at the hearing.

Plaintiff and cross-defendant Navarrete seeks an order relieving her of the effect of her admissions being deemed admitted on the basis of inadvertence, mistake, or excusable neglect, and that she be permitted to serve a response to the Requests for Admissions.

Navarrete indicates that the monetary sanctions were paid subsequent to the court’s order by former counsel of record for Navarrete, and that new counsel substituted into this action in January of 2024, and served responses to all outstanding discovery in this matter. Navarrete seeks relief from the admissions being deemed admitted, indicating that she seeks this relief in order to prosecute her action in a just manner without the need of protracted litigation costs and time and unreasonable delay.

“Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300.”

(b) The court may permit withdrawal or amendment of an admission 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.”

As argued in the moving papers, it is held that after a “deemed admitted order” has been entered by the court, the party in default may seek relief from waiver by filing a motion to “withdraw or amend” the “deemed admissions” under the predecessor to CCP § 2033.300. See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979; Weil & Brown, Civ. Proc. Before Trial (Cal. Practice Guide, the Rutter Group, 2024 rev.) 8:1369.5.

Weil & Brown note that the grounds for relief under this section “are substantially the same as required for relief generally under CCP § 473(b). The terms, ‘mistake, inadvertence, or excusable neglect’ as used in CCP section 2033.300 are given the same meanings as similar terms found in CCP section 473 (b).” Weil & Brown, at 8:1386.2.

“Policy favoring relief: CCP § 2033.300 is designed to eliminate undeserved windfalls obtained through requests for admission and to further the policy favoring resolution of lawsuits on the merits. Therefore, any doubts must be resolved in favor of the party seeking relief. [New Albertsons, Inc. v. Sup.Ct. (Shanahan), supra, 168 CA4th at 1420, 86 CR3d at 470]

Denial of a motion to withdraw or amend an admission “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. Sup.Ct. (Shanahan), supra, 168 CA4th at 1420-1421, 86 CR3d at 470 (emphasis added)].

Mistake, inadvertence, or excusable neglect is defined as some condition or situation in which a party is unexpectedly placed to his injury without any default or negligence of his own, which ordinary prudence could not have guarded against. Credit Managers Association v. National Industrial Business Alliance (1984 2nd Dist.) 162 Cal.App.3d 1166. The burden is on the party seeking relief to show why he is entitled to the relief on these grounds. Bruskey v. Bruskey (1935) 4 Cal.App.2d. 472.

However, the declarations submitted include a declaration from Navarrete’s previous counsel, who states that in January of 2024, counsel was notified by his client that opposing party Rodriguez had indicated to plaintiff that counsel’s office had not responded to certain discovery and there were motions granted against plaintiff. [Gutierrez Decl. para. 2]. Counsel sent a letter to opposing counsel indicating he had not received any information concerning the discovery or motions to compel discovery. [Id.]. Counsel indicates that a copy of the letter is attached, but no attachment is included. Counsel states he was at a complete loss as to how this could have happened, and that in investigating the matter, he did not rule out any possibility as to how this could have happened. [Gutierrez Decl., para. 2].

Counsel’s declaration goes on to state that on or about January 25, 2024, counsel was informed by two of his staff members that there appeared to be on counsel’s central computer system a list of blocked emails preventing the reception of any emails from the blocked emails, and counsel was also advised that the sender of the emails would not receive a notice that their email was blocked, so would in all likelihood assume the email was received. [Gutierrez Decl., para. 3]. Counsel indicates that Mr. Alkana’s office, opposing counsel’s office, “was one of the blocked emails from this list.” [Id.]. The declaration states:

“This is the reason that I did not receive any documents of any discovery or Motion to Compel Discovery from Mr. Alkana’s office as they were all sent electronically. Obviously, I never authorized anyone to prepare a blocked email list or had no knowledge of any list of blocked emails nor did I at any time instruct anybody to do the same or restrict any communication by my office. Attached hereto is a copy of said list as Exhibit 2. I believe that this is what happened.

It is my responsibility in as much as representing Mrs. Navarrete. However, such action was taken by surprise and excusable neglect on my part. I also paid the sanctions in this matter in as much as the problem emanated from my office. However, I do not want the court to think that this was some gross negligence or intentional conduct on either my part or my Client’s part. My Client was completely innocent of this and I was unknowing that someone in my office would have created this blocked communications list. I am requesting that the court consider these circumstances in affording plaintiff Erika W. Navarrete request for Relief in this matter.”

The moving papers also include a declaration of plaintiff Navarrete stating that she “was never put on notice that this discovery was served” on her via her previous counsel of record, Gutierrez, and that if she had been properly notified, she “would have made the good faith effort and ultimately responded in a timely manner allowed” or “requested further time to respond per California law.” [Navarrete Decl., paras. 5, 7].

Plaintiff also indicates that the request will not cause prejudice to defendant Rodriguez because discovery is continuing, and if the request is granted, defendant will have proper responses per code that correspond with plaintiff’s contentions in this case. [Navarrete Decl., para. 8]. The declarations confirm that all monetary sanctions ordered have been paid, so there will be no prejudice to defendant with respect to monetary sanctions. [Navarrete Decl., para. 9; Gutierrez Decl., para. 3].

The opposition argues that plaintiff has failed to establish that email messages from counsel for defendant and cross-complainant were not received by former counsel, as the documents which were sent to plaintiff’s counsel did not come from counsel Alkana directly, but were sent primarily from three different staff members of Eugene Alkana, none of whom have email addresses that reference of are associated with Eugene Alkana, APLC. In support of this argument, the opposition submits declarations from legal secretaries Maple Jiang, Denise Alhadeff, and Beatriz Santiago who state that they use email addresses to serve documents and notices in connection with this case that have no indication in them that the addresses are affiliated with the Alkana law firm [Jiang Decl., paras.4, 5; Alhadeff Decl., paras. 4, 5; Santiago Decl., paras. 3-5].

However, most of the attached emails were copied on Alkana at an email including Alkana and were also copied on another attorney at the firm with the name Alkana in the email address, at addresses eugenealkana@mindspring .com and robertalkana@gmail.com. [See Jiang Decl., Ex. A, Akhadeff Decl., Ex. A; Santiago Decl., Ex. A]. This could explain why those emails were not received as subject to the block.

Only three of the attached emails were not also copied on the Alkana email addresses, an August 26, 2023 letter attaching a notice of non-opposition to a demurrer to plaintiff’s complaint, an October 4, 2023 message attaching Form Interrogatories, Set Three, and an August 22, 2023 message attaching an unspecified attachment, entitled GutierrezRodriguez082223.pdf. [Jiang Decl., Ex. A; Santiago Decl., Ex. A]. None of these would have given notice of the service of Requests for Admissions, or the motion requesting they be deemed admitted.

The opposition also argues that it appears that other emails which were sent from those email addresses were in fact received by former counsel. For example, defendant argues that defendant’s cross-complaint was electronically served by email on August 31, 2023, and must have been received as former counsel filed an answer to the cross-complaint on October 3, 2023. The attached email does in fact show that the subject email was served from a staff member, Jiang, from an email address of mapleleeng01@gmail.com. [Jiang Decl., Ex. A]. This email is one which was also copied on the Alkanas. The email expressly requested, “Please confirm receipt,” but there is no indication that receipt was ever confirmed. This email is one of the earlier ones which are included in the opposition and could possibly have been sent before the blocking had occurred.

The opposition also points out that the moving papers refer to, and rely heavily on a list of blocked senders attached as an exhibit, but that no exhibits are attached to the declaration, so that it cannot be ascertained who is included on this list of alleged blocked senders. This issue will be discussed at the hearing, as the exhibits are also not attached to the papers filed with the court. However, the court is prepared to accept the representations and testimony in the declarations themselves, particularly the testimony offered by an attorney as an officer of the court, as sufficient for analysis by the court.

Defendant in opposition also argues that certain documents were also sent to former counsel via U.S. mail, including a letter of November 20, 2023 enclosing a notice of inspection which referenced the pending motions to compel for failure to respond to discovery. The letter at issue from Eugene Alkana does lead off with a paragraph concerning the discovery motions:

“As you know, there are several discovery motions that are upcoming because your client has failed to respond to any of the discovery propounded by the Defendant. Each of the discovery motions also has a request for monetary sanctions.”

Defendant’s counsel in the letter also recognizes that there has been a lack of response to notices for some time, stating, “I’m somewhat bewildered by the failure of Plaintiff to respond to any of the discovery that has been propounded.” [Alkana Decl., Ex. A].

Defendant argues that this correspondence was also served by U.S. mail. However, the proof of service on this letter is not particularly clear, as while the box is checked that an envelope was deposited in the mail, the proof of service does not clearly indicate that service was made other than by the box checked, “by e-mail.” [See Alkana Decl., Ex. A, Proof of Service].

The opposition shows that the letter was served by email by Jiang, from her email address, and copied on the Alkanas. The Jiang Declaration does not include any statement that this correspondence and attachments were also served by regular mail. [See Jiang Decl., Ex. A].

In addition, the opposition includes a letter from former counsel dated January 12, 2024, indicating that no notice of site inspection was ever received, but that plaintiff’s counsel learned about it from his client who had heard about it directly from defendant:

“I have been made aware that you wish to confirm a site inspection of the property… to take place on January 16, 2024. We did not receive a written notice from your office pursuant to CCP section 2031.010 et. Seq. Rather, we were notified of your request for a site inspection by our client. Neither you nor your client are to communicate directly with Ms. Navarette under any circumstances. We will agree to a future date and time for a property inspection upon receipt of proper notice.”

Overall, it is a bit troubling that the moving papers did not include the list referenced as Exhibit 2, and did not explain who prepared that document, and how it was retrieved or generated. None of the staff declarations indicate that the witness prepared Exhibit 2, and neither does the declaration of counsel. However, it appears that previous counsel’s account through the declarations makes sense and would explain counsel’s unawareness of the proceedings against his client, particularly if the email block served to block correspondence delivered which had been copied on email addresses affiliated with opposing counsel of the Alkana name. It would appear that plaintiff’s previous counsel has taken responsibility for his mistake in this matter, and the testimony is credible. There is no testimony offered in the opposition that the opposing attorneys ever had a telephone conversation concerning the Requests for Admissions or motion, or that counsel for defendant is aware of other conduct which would establish that counsel for plaintiff had notice specifically of the requests for admissions or the proceedings to have them deemed omitted and is now incorrectly claiming he did not.

Defendant in the opposition also argues that even if the court is satisfied with former counsel’s excuses, this would constitute a breach of the attorney’s duty to be informed and to inform one’s client about critical developments in the case and would constitute inexcusable neglect.

Attorney conduct has been held not “excusable” under the discretionary provision of CCP section 473(b), which can be applied here, as discussed above, where the conduct consisted of counsel’s failure to discharge “routine professional duties”, or failure to “properly prepare for the hearing.” Generale Bank Nederland v. Eyes of the Beholder Ltd (1998, 2nd Dist.) 61 Cal.App.4th 1384, 1402. The Second District in Generale Bank reviewed the “reasonably prudent person standard” governing a determination of “excusable neglect” and concluded with respect to attorney conduct:

“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”

The Second District in Luri v. Greenwald (2003) 107 Cal.App.4th 1119 upheld the trial court’s assessment that counsel’s failure to timely oppose a motion for summary judgment was not excusable neglect. The court in Luri noted the following conduct by an attorney which has been held not “excusable” under the discretionary provision:

Here, the situation is not that previous counsel, with knowledge of the circumstances, failed to take action with knowledge of deadlines and without believing that deadlines would be extended. Previous counsel’s error here seems to be the failure to monitor his office computer system to ensure that critical notices were not being blocked from being received, which does not appear to fall below professional standards to the point of constituting inexcusable neglect. As discussed above, in the context of requests for admissions being amended or withdrawn, the motion showing grounds for relief should ordinarily be granted unless it is clear that the mistake, inadvertence, or neglect was inexcusable. New Albertsons, at 1420-1421, Weil & Brown, at 8.1386.3.

Defendant argues that counsel here acted unreasonably because he did not keep himself apprised of the status of the litigation or keep his client informed. Previous counsel has explained that he was not receiving notices, and was unaware of that circumstance, and there does not appear to have been any event or conversation which would have prompted a reasonable attorney to check the court file for hearings in the matter for which the party through the attorney would have been entitled to written notice.

As noted above, plaintiff indicates that the request will not cause prejudice to defendant Rodriguez because discovery is ongoing. [Navarrete Decl., para. 8]. It appears from the file that beyond the written discovery to which Navarrete has now responded other than the RFAs which are the subject of this motion, there appear to have been no other discovery disputes so far, and this posture does not appear to be a situation where, for example, depositions which have already been completed will need to be reconvened. Plaintiff’s declarations confirm that all monetary sanctions ordered have been paid by previous counsel, so there will be no prejudice to defendant with respect to monetary sanctions. [Navarrete Decl., para. 9; Gutierrez Decl., para. 3].

Defendant in opposition argues that defendant will be prejudiced because defendant previously propounded Form Interrogatory 17.1, which concerns responses to RFAs, and, if this motion is granted and plaintiff is permitted to answer the RFAs, the Form Interrogatory will have to be served again. This circumstance appears to be a minimal inconvenience, not the type of prejudice to justify denying relief. Defendant also argues that once the RFAs are no longer admitted, defendant will be required to conduct expensive further discovery to determine why requests for admissions were denied, including conducting multiple depositions, and serving records subpoenas to determine income and expense related to the Navarrete Family Care business and to contractors that performed work at the property.

It is not clear how the necessity to conduct such discovery would prejudice defendant in maintaining defendant’s action or defense “on the merits,” under the statute. It does not appear that in the short period between the RFAs being deemed admitted in late December and this motion being filed in mid-March necessary evidence or witnesses have disappeared, become unavailable or grown stale, or memories of the events at issue have faded. Under the circumstances, the court also has determined that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.

Defendant in the opposition requests that if the relief is granted, the court impose conditions which are just, and requests that plaintiff be ordered as a condition to relief, to pay defendant and defendant’s counsel $10,000 toward future discovery costs and expenses resulting from the conduct of plaintiff and plaintiff’s former counsel.

Here, there has been no trial date set, so defendant is free to pursue additional discovery related to the matter involved in the RFAs which will be permitted to be responded to, so no further order concerning the pursuit of further discovery is required, or an order reopening or continuing the discovery cut off dates. There is no argument that certain costs for additional discovery will be unnecessarily incurred or would be duplicative of expenses already incurred, such as where a deposition must be reconvened which would have otherwise been covered by the court reporter expenses already incurred. The declaration in support of the request in the opposition, in support of the amount requested, states:

“In all, Defendant must take at least two (2) depositions, serve at least four (4) to six (6) records subpoenas, and obtain such information of discovery that has not been answered, including Form Interrogatories, Set No. Three (3). These additional expenses are the result of Plaintiff’s conduct and Plaintiff should be ordered to pay to Defendant no less than $10,000.00 as a condition of granting this motion.”

This statement does not explain why this discovery only would be now considered necessary and the costs appropriately shifted to plaintiff or how the sum of $10,000 is calculated. The argument is apparently that defendant will now be required to defend the complaint and prosecute the cross-complaint on their merits, which would be the situation in most cases where requests deemed admitted are permitted to be amended or withdrawn. It has not been established why such conditions would be just in this particular situation.

To the extent the argument also seems to be that defendant will be required to re-propound Form Interrogatory No. 17.1 from defendant’s Form Interrogatories, Set Three, this set of interrogatories has not been subject to a previous court order, and the file shows that the previous order concerning responses to Form Interrogatories, Set One, involved a set of interrogatories that did not include Form Interrogatory No. 17.1. [See Motion to Compel Responses to Form Interrogatories, General, Set No. One, Ex. A, Form Interrogatories, p. 7]. It would appear that Form Interrogatories, Set Three, and Form Interrogatory No. 17.1 are still outstanding. To the extent this is not the case, the court orders that plaintiff, as a condition to being granted relief, respond to Form Interrogatory, Set Three, Interrogatory No. 17.1, with all information requested with respect to the Responses to Requests for Admissions permitted to be served this date.

The Court determines, based on all the declarations, evidence and arguments submitted, pursuant to CCP § 2033.300, that the order of December 22, 2023, granting defendant and cross-complainant David Rodriguez’s motion to have Requests For Admissions Set No. One deemed admitted, and ordering the matters be admitted 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.

Plaintiff and Cross-Defendant is ordered to serve on defendant and cross-complainant within five days original, verified responses to Requests for Admissions Set No. One which conform with Exhibit A to the Navarrete Declaration, Plaintiff Erika W. Navarrete’s Responses to Defendant David A. Rodriguez’ Request for Admissions, Set One.

Plaintiff Erika W. Navarrete is further ordered to serve within thirty days responses or further responses to Form Interrogatories, Set No. Three, Interrogatory No. 17.1, which responds to that interrogatory with all responsive information in connection with the Responses to Requests for Admissions permitted to be served this date.

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