Judge: Stephen P. Pfahler, Case: 20CHCV00344, Date: 2022-12-29 Tentative Ruling

Case Number: 20CHCV00344    Hearing Date: December 29, 2022    Dept: F49

Dept.
F-49

Date:
12-29-22

Case
# 20CHCV00344

Trial
Date: 2-27-23 c/f 12-5-22

SET ASIDE ADMISSIONS

MOVING
PARTY: Defendant, Rony Warda

RESPONDING
PARTY: Plaintiff, Raymon Khamo

RELIEF
REQUESTED:

Motion
to Set Aside Requests for Admissions Deemed Admitted

SUMMARY
OF ACTION

Plaintiff
Raymon Khamo alleges defendant Rony Warda, former son-in-law of decedent. Anna
Khamo, fraudulent induced Anna to loan him $35,000 (two loans, one for $20,000,
one for $15,000) following the sale of her home, without any intention to repay
the loans. Plaintiff also alleges that Defendant also somehow had “taken”
another $70,000 from Anna Khamo, though it’s not clear how this occurred.

On
June 8, 2020, Plaintiff filed a complaint for Breach of Contract, and Financial
Elder Abuse. Defendant answered on October 26, 2021.

RECOMMENDED
RULING:
Granted.

Defendant,
Rony Warda moves to set aside admissions deemed admitted on grounds of mistake,
inadvertence, and/or excusable neglect. (The motion was reserved as a motion to
set aside a default, and appears on the court docket as such, but the court
nevertheless considers the substantively presented requested relief.) Plaintiff
Raymon Khamo vociferously opposes the motion on grounds that the conduct of
inexcusable neglect and evasion of Defendant led to the admissions being deemed
admitted. Plaintiff also cites the failure to produce any documents as a basis
for denying the instant motion and payment of sanctions. The court electronic
filing system shows no reply on file at the time of the tentative ruling
publication cutoff.

On
October 11, 2022, the court granted the motion to deem admissions admitted.

Relief
from waiver of objections requires service of responses (substantial
compliance), and a showing of the delayed responses as a result of mistake,
inadvertence or excusable neglect. (Code Civ. Proc., § 2033.280.) Counsel
submits a declaration regarding the delay in responses due to difficulties in
communicating with the client. The court finds no dispute with Plaintiff’s
right to bring the motion, especially after granting the extension, and
Plaintiff was under NO obligation to continually to check with counsel on
potential client communication problems. The court was also entitled to
consider the motion as unopposed given the filing of the opposition the day
before the hearing—8 court days late. The court also accepts the deposition of
Defendant regarding the minimal effort to comply with the discovery requests.
[Declaration of J.D. Rees, ¶ 14., Ex. L.] Nevertheless, given the implicit
admission of at least partial responsibility by counsel, the court finds the
standard for relief met in the motion. [Declaration of John Koutsoukos.] (See Martin Potts & Associates, Inc. v.
Corsair, LLC (2016) 244 Cal.App.4th 432, 443.)

The
court otherwise declines to consider the failure to comply with the document
production or payment of sanctions order as a basis of denial for the subject
motion. Plaintiff may use alternative measures to compel compliance, but the
court otherwise declines to sua sponte consider this argument.

Still,
the motion itself lacks any proof or representation of service of actual
responses. [Declaration of John Koutsoukos.] Fortunately for defendant,
Plaintiff attaches a copy of verified responses served on October 26, 2022.
[Rees Decl., ¶ 12, Ex. G.]

Trial
remains set for February 7, 2023.

Defendant
to give notice.