Judge: Robert B. Broadbelt, Case: 19STCV13450, Date: 2023-04-27 Tentative Ruling

Case Number: 19STCV13450    Hearing Date: April 27, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Orange Trim, Inc.

RESPONDING PARTY:       Plaintiff Ivan Mendoza

Motion to Withdraw Admissions

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court rules on defendant Orange Trim, Inc.’s (“Defendant”) objections to the Declaration of Samuel J. Moorhead, filed April 14, 2023, as follows.

The court overrules Defendant’s Objection No. 1.  The statements which Defendant objects to in Paragraph 6 of the Declaration of Samuel J. Moorhead include two levels of hearsay statements. 

The first level of hearsay consists of statements made by the declarant (Kelly Casado, the attorney for defendant Orange Trim, Inc.) to Samuel J. Moorhead.  These statements are hearsay evidence because they were made other than by a witness while testifying at the hearing and are offered to prove the truth of the matters stated.  (Evid. Code, § 1200, subd. (a).)  But the statements meet the requirements for the exception to the hearsay rule set forth in Evidence Code section 1222 because the statements were made by a person (defendant Orange Trim, Inc.’s attorney Casado) impliedly authorized by defendant Orange Trim, Inc. to make statements for it concerning the subject matter of the statements (responding to Plaintiff’s discovery requests propounded to defendant Orange Trim, Inc. in this action). 

The second level of hearsay consists of statements made by the declarant (the client) to its attorney (Kelly Casado).  These statements are hearsay evidence because they were made other than by a witness while testifying at the hearing and are offered to prove the truth of the matters stated.  (Evid. Code, § 1200, subd. (a).)  But the statements meet the requirements for the exceptions to the hearsay rule set forth in Evidence Code sections 1220 and 1222 because (1) the statements are offered against the declarant in an action to which it is a party (Evid. Code, § 1220) and (2) the statements were made by a person authorized by the party to make statements for it concerning the subject matter of the statements (Evid. Code, § 1222).  Defendant Soon Pill Kim has filed a declaration in support of this motion stating that he is the President and owner of defendant Orange Trim, Inc.  (Declaration of Soon Pill Trim, filed December 19, 2022, ¶ 1.) 

The court sustains Defendant’s Objection No. 2.  The statements that Defendant objects to are hearsay and they do not meet the requirements for the exception to the hearsay rule set forth in Evidence Code section 1222 because, at the time Casado made the statements, he was no longer attorney for defendant Orange Trim, Inc. and, therefore, was no longer authorized by that party to make statements for it.  (Substitution of Attorney – Civil, filed November 14, 2022.) 

The court overrules Defendant’s Objection No. 3.  

DISCUSSION

Defendant Orange Trim, Inc. moves the court for an order withdrawing its admissions to the Requests for Admissions, Set One served by plaintiff Ivan Mendoza (“Plaintiff”) and deemed admitted by the court’s September 30, 2020 order granting Plaintiff’s unopposed motion to deem matters admitted.

“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.”  (Code Civ. Proc., § 2033.300, subd. (b).)  Section 2033.300 applies to all admissions, including those deemed admitted by a court order.  (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 975, 977 [discussing previous Section 2033, subdivision (m)].)

The court determines that (1) Defendant’s admissions were not the result of mistake, inadvertence, or excusable neglect, and (2) Plaintiff will be substantially prejudiced in maintaining this action if the court were to permit withdrawal of Defendant’s admissions.  The court therefore denies Defendant’s motion.  (Code Civ. Proc., § 2033.300, subd. (b).)

First, the court finds that Defendant’s admissions were not the result of mistake, inadvertence, or excusable neglect.  (Code Civ. Proc., § 2033.300, subd. (b).)

Defendant contends that its counsel abandoned it and Soon Pill Kim (“Kim”), which “resulted in the court deeming [Plaintiff’s Requests for Admissions] to be admitted by Defendant Orange Trim.”  (Mot., p. 1:18-19.)  In support of its motion, Defendant submits the declaration of Kim, the president and owner of Defendant, in which Kim states that Defendant’s counsel, Kelly Casado (“Casado”), effectively abandoned Defendant and failed (1) to inform Kim that Defendant had been served with written discovery, (2) to send Kim copies of the written discovery, and (3) to obtain responses from Defendant to the discovery.  (Kim Decl., ¶¶ 1, 12.) 

In opposition, Plaintiff submits the declaration of his counsel, Samuel Moorhead (“Moorhead”), in which Moorhead states the following: (1) on September 11, 2019, Casado appeared at the case management conference and “claimed that he was having difficulty in getting his clients to provide the relevant information, but would redouble his efforts” to respond to Plaintiff’s discovery, and (2) during a telephone call on December 18, 2019, Casado told Moorhead that (i) Casado “had not been able to get his client [i.e., Defendant] to provide the information[,]” (ii) at first, Defendant would agree to provide the discovery responses, “but fail to come through[,]” and (iii) “eventually, his client [i.e., Defendant] had told him that responding to discovery would be too expensive, and it did not intend to do so.”  (Moorhead Decl., ¶¶ 5-6.)

The court finds that Plaintiff has presented competent, credible evidence (1) establishing that Defendant knew of Plaintiff’s Requests for Admission and elected not to respond to that discovery, and (2) refuting Defendant’s contention that Casado abandoned Defendant by failing to advise it that discovery had been served on it and by failing to obtain responses to Plaintiff’s discovery.  (Moorhead Decl., ¶ 6.)  The court finds that Moorhead’s statements concerning the December 18, 2019 telephone conversation with Casado are credible and supported by the evidence of the parties’ earlier conversation during the September 11, 2019 case management conference, in which Casado told Moorhead and the court that “he was having difficulty getting his client to provide the relevant information” to the discovery.  (Moorhead Decl., ¶¶ 5-6.)  The court finds that the statements made by Kim that are inconsistent with Moorhead’s declaration (i.e., Kim’s statements that Casado did not (i) inform Defendant of the discovery served on it or (ii) attempt to obtain responses to that discovery) are not credible.  

The court further finds that the “Declaration of Samuel Moorhead ISO Discovery Motions” filed with the court on December 18, 2019 is not inconsistent with or contradictory to the declaration submitted by Moorhead in support of Plaintiff’s opposition to this motion. Although Defendant takes issue with Moorhead’s decision to omit the contents of his conversation with Casado, Defendant points to no language in Moorhead’s December 18, 2019 declaration that contradicts the statements made in his declaration filed in opposition to this motion.  (Def. Compendium of Exhibits, Ex. D.)

The court therefore finds that Plaintiff’s evidence is competent, credible, and shows that Defendant’s admissions were not the result of Defendant’s mistake, inadvertence, or excusable neglect.

Second, the court determines that Plaintiff would be substantially prejudiced in maintaining his action on the merits if the court granted Defendant’s motion.  (Code Civ. Proc., § 2033.300, subd. (b).)

As set forth above, the court granted Plaintiff’s motion to deem matters admitted over two years ago, on September 30, 2020.  Plaintiff has since relied on the admissions in litigating this action, including by preparing and filing his partially successful motion for summary adjudication.  Further, trial is scheduled to begin on October 18, 2023.  If the court granted Defendant’s motion, Plaintiff would (1) have been delayed two-and-a-half years in conducting discovery to prove the matters deemed admitted in the Requests for Admissions, and (2) have less than five months to conduct discovery on those matters before the September 18, 2023 discovery cutoff date.  Thus, Plaintiff would not have sufficient time to conduct discovery and obtain evidence to attempt to prove the matters deemed admitted in the Requests for Admission before the discovery cutoff date.  The court therefore finds that Plaintiff would be deprived of his ability to adequately prepare for trial and would be substantially prejudiced in maintaining his action on the merits if the court granted Defendant’s motion.

ORDER

The court denies defendant Orange Trim, Inc.’s motion to withdraw admissions.

The court orders plaintiff Ivan Mendoza to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 27, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court