Judge: Teresa A. Beaudet, Case: 21STCV29932, Date: 2023-03-23 Tentative Ruling

Case Number: 21STCV29932    Hearing Date: March 23, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On August 13, 2021, Plaintiff Vanessa Gutierrez (“Plaintiff”) filed this action against Defendants Lorenza Alvarez Roman (“Roman”), Felix Alvarez Marcos (“Marcos”), and Antonio Casteneda (collectively “Defendants”). The Complaint asserts causes of action for (1) negligence, (2) breach of implied warranty of habitability, (3) violation of Los Angeles Municipal Code section 151.04/151.10, (4) violation of Los Angeles Municipal Code section 151.09.H/163.06A, (5) unlawful and unfair business practices or acts in violation of Business and Professions Code section 17200, et seq., (6) intentional misrepresentation, (7) violation of Civil Code section 1940.2, and (8) violation of Civil Code section 789.3.

On September 15, 2021, Defendants, in pro per, filed answers to the Complaint.

On December 1, 2021, Plaintiff moved to compel responses from Roman to Plaintiff’s Form Interrogatories, Set One and to deem the matters in Plaintiff’s First Set of Requests for Admissions admitted. Plaintiff also requested monetary sanctions. No opposition to the motions was filed. On January 10, 2022, the Court issued an Order granting the motions. The January 10, 2022 Order provides, inter alia, “[t]he Court orders Roman to serve complete verified responses, without objections, to Plaintiff’s Form Interrogatories, Set One, [within] 30 days of this Order. The Court orders that the matters in Plaintiff’s First Set of Requests for Admissions to Roman are deemed admitted. The Court further orders Roman to pay $900.00 to Plaintiff within 30 days of notice of this order.” (See January 10, 2022 Order.)

Roman now moves for an order granting relief from her waiver of objections to Plaintiff’s Form Interrogatories, Set One, and for relief from Roman’s waiver of her objections to Plaintiff’s First Set of Requests for Admissions, and their being deemed admitted.[1] Plaintiff opposes.[2]

Discussion

Pursuant to Code of Civil Procedure section 2030.290, “[i]f a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code of Civ. Proc., § 2030.290.)

In addition, pursuant to Code of Civil Procedure section 2033.280, “[i]f a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2033.280, subd. (a).)

            Roman asserts that she failed to respond to Plaintiff’s Form Interrogatories, Set One and Plaintiff’s First Set of Requests for Admissions due to mistake.

In her declarations, Roman indicates that she and the other defendants in this action hired Brenda Elizabeth Vargas, Esq. to prepare and file answers on their behalf in this case, and that Ms. Vargas did not become Roman’s attorney of record in the case as a whole. (Roman Decls.,   ¶ 4.) Roman states that “Ms. Vargas prepared the answers, and asked us to come into her office to sign them. She gave each of us the page for our signatures, but did not show the entirety of the answers to us. Therefore, I only saw my signature page and did not notice that Ms. Vargas had put her office’s address as my address, thus directing all mailings to come to her.” (Roman Decls., ¶ 4.)[3]

            Roman further states that “Ms. Vargas was to forward our case to the homeowners’ insurance adjuster for [Marcos]. I believed that the insurance company was handling the matter. I received no notice from the insurance company or Ms. Vargas that either had received any discovery questions, or discovery motions on our, as [sic] defendants’ behalf, and therefore had no knowledge that anything further was required of us at that time.” (Roman Decls., ¶ 5.) Roman states that she “did not know Ms. Vargas entered her office address as [Roman’s] address of record, and never received notice from her that she received any discovery, or discovery motions on [Roman’s] behalf. [Roman] also never received any similar type of notice from the insurance company.” (Roman Decls., ¶ 8.)

            In the opposition, Plaintiff asserts that Roman cannot show excusable neglect. Plaintiff relies on Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13 in support of this assertion. In Kramer, “Plaintiff Michelle Kramer filed [a] wage and hour lawsuit against her employer, defendants Traditional Escrow, Inc. (Traditional), and its alleged alter ego, Annette Scherrer-Cosner (Cosner; collectively defendants). A few months after defendants answered the initial complaint, their counsel withdrew, and defendants subsequently chose not to participate in this case. Plaintiff continued to serve defendants with all case documents, including an amended complaint, at their address of record. But, in violation of the California Rules of Court, defendants changed their mailing address without giving notice to plaintiff or the trial court. As a result, they did not receive any of the documents that plaintiff served on them after their counsel withdrew. Eventually, default and default judgment were entered against them due to their failure to answer the amended complaint.” (Id. at p. 19.)

The defendants in Kramer “filed a motion to set aside the default and vacate the default judgment, arguing they were entitled to equitable relief because they had been prevented from responding to the amended complaint due to extrinsic fraud and extrinsic mistake. The trial court granted the motion, finding that defendants were unaware the complaint had been amended. It also found that after filing the amended complaint, plaintiff’s counsel misrepresented to Cosner’s divorce attorney, who was unaffiliated with this matter, that defendants were in default and could not file an answer. Plaintiff appeal[ed] the trial court’s ruling, arguing equitable relief was unwarranted.” (Kramer v. Traditional Escrow, Inc., supra, 56 Cal.App.5th at pp. 19-20.) The Court of Appeal agreed, finding that “[e]quitable relief from a default judgment is reserved for exceptional circumstances. None exist here. To the extent defendants were unaware of the amended complaint, it was due to their own negligence. They chose not to participate in the proceedings. They also missed every document served on them, including the amended complaint, because they failed to inform the trial court and plaintiff of their current mailing address. Indeed, defendants made themselves unreachable by any means. They could not be reached by phone or e-mail, missing multiple phone calls from plaintiff and an e-mail from the trial court. Defendants cannot deliberately neglect this lawsuit and go off-grid, so to speak, and then complain that they lacked notice of the proceedings. Besides, about a month prior to entry of default, defendants received actual notice that an amended complaint had been filed. Yet they did nothing.” (Id. at p. 20.)

The Court finds that the circumstances here are different than those in Kramer. As set forth above, Roman indicates that she did not notice that Ms. Vargas had put her office’s address as Roman’s address, thus directing all mailings to come to Ms. Vargas. (Roman Decls., ¶ 4.) Roman states that Ms. Vargas was to forward Defendants’ case to the homeowners’ insurance adjuster for Marcos, and that she believed the insurance company was handling the matter. (Roman Decls., ¶ 5.) Roman received no notice from the insurance company or Ms. Vargas that either had received any discovery questions or discovery motions on Roman’s behalf. (Roman Decls., ¶ 5.) In Kramer, the defendants “changed their mailing address without giving notice to plaintiff or the trial court” and “made themselves unreachable by any means.” (Kramer v. Traditional Escrow, Inc., supra, 56 Cal.App.5th at pp. 19-20.) Here, Roman states that she only hired Ms. Vargas to prepare and file an answer on her behalf, and did not notice that Ms. Vargas listed her office address as Roman’s address. (Roman Decl., ¶ 4.)  

Plaintiff also notes that pursuant to California Rules of Court, rule 2.200, “[a]n attorney or self-represented party whose mailing address, telephone number, fax number, or e-mail address (if it was provided under rule 2.111 (1)) changes while an action is pending must serve on all parties and file a written notice of the change.” However, Roman does not state that her address changed, rather, she states that she was unaware that Ms. Vargas listed the incorrect address on Roman’s answer. (Roman Decl., ¶ 4.) Roman notes that “[a] mistake exists when a person, under some erroneous conviction of law or fact, does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence.” (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 410 [internal quotations omitted].)

Plaintiff’s counsel also indicates that “[o]n December 1, 2021, I called the Defendants using the number listed on the Answer. A man answered the phone who spoke only Spanish. I conversed with him in Spanish and informed him that I was representing Vanessa Gutierrez in this action. The man stated that neither Lorena Alvarez nor himself had an attorney and that he did not know anything about the court papers. While trying to explain the issue with the discovery, the man hung up the phone.” (Hermansen Decl., ¶ 5.) However, Plaintiff does not appear to demonstrate that Plaintiff’s counsel spoke to Roman regarding the subject discovery requests.

Plaintiff’s counsel also states that “[i]n late January, 2022 I received discovery responses from all three Defendants. The discovery has Ms. Vargas captioned as the attorney of record and are verified by the Defendants on January 13, 2022.” (Hermansen, Decl., ¶ 8.) Plaintiff’s counsel states that “[w]hen I compare the January 2022 responses to Form Interrogatories that I received from Ms. Vargas with the responses to Form Interrogatories attached to Defendant’s Motion (page 24 of the PDF) they are exact copies except for the name and address of the attorney. Clearly, Defendant and their counsel used the exact same template that Ms. Vargas used in July 2022. Based on this, the declaration of Lorenza Alvarez Roman ¶¶8-9 appears to be a demonstrably false and perjurious.” (Hermansen, Decl., ¶ 9.)

Roman states in paragraphs 8 and 9 of her Declarations, inter alia, “I did not know Ms. Vargas entered her office address as my address of record, and never received notice from her that she received any discovery, or discovery motions on my behalf,” and that “[h]ad I known that discovery questions were served on me, I would have asked for legal help, and gotten the responses done timely, to the best of my ability. Had I known discovery motions were filed against me, again, I would have gotten legal help and addressed this directly.” (Roman Decls.,  ¶¶ 8-9.) It appears that Roman is indicating that she did not know of the discovery requests and discovery motions before the Court’s January 10, 2023 hearing and Order on the motions. As Roman notes, any such responses provided in January 2022 would have been late. 

Based on the foregoing, the Court finds that Roman has demonstrated that her failure to serve timely responses to Plaintiff’s Form Interrogatories, Set One and Plaintiff’s First Set of Requests for Admissions was the result of mistake. (See Code Civ. Proc., §§ 2020.290, 2033.280.) Roman attaches responses to Plaintiff’s Form Interrogatories, Set One and Plaintiff’s First Set of Requests for Admissions to the instant motions. Plaintiff does not dispute that Roman’s responses to Plaintiff’s Form Interrogatories, Set One are “in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240.” (Code Civ. Proc., § 2030.290, subd. (a)(1).) Plaintiff also does not dispute that Roman’s responses to Plaintiff’s First Set of Requests for Admissions are “in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.” (Code Civ. Proc., § 2033.280, subd. (a)(1).)

Roman also cites to Code of Civil Procedure section 2033.300, subdivision (b), which provides that “[t]he 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.” In addition, pursuant to Code of Civil Procedure section 2033.300, subdivision (c), “[t]he court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.”

Plaintiff asserts that Roman has not met her burden of demonstrating that Plaintiff will not be prejudiced. Plaintiff contends that she “would be substantially prejudiced because she has relied on the admitted admissions up through the fast approaching trial date. If the relief is granted, the trial date would have to be continued to permit for further discovery and investigation. Such a delay in the trial would be prejudicial to the Plaintiff who has waited long enough to prove her case and be compensated for Defendant’s gross misconduct.” (Opp’n at p. 10:16-20.) Roman counters that there is no prejudice to Plaintiff, as Plaintiff “could have at [sic] sought from Defendant’s Counsel a concession it could ask more discovery on Ms. Alvarez based on the pending motion. Or even more directly, it could have simply propounded discovery on the other two defendants, who received none.” (Reply at p. 3:13-16, emphasis omitted.) Moreover, the Court finds that the asserted prejudice to Plaintiff can be alleviated by a trial continuance. 

Lastly, Plaintiff seeks sanctions. Plaintiff cites to Code of Civil Procedure section 2030.290, which provides, inter alia, that “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc.,     § 2030.290, subd. (c).) The Court does not find that this provision is applicable here.

Plaintiff also cites to Code of Civil Procedure section 2033.300 in support of the assertion that sanctions should be awarded against Roman. As set forth above, pursuant to Code of Civil Procedure section 2033.300, subdivision (c)(2), “[t]he court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:…(2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” However, Plaintiff does not seek the costs of any additional discovery. Rather, Plaintiff seeks sanctions for the hours incurred in preparing Plaintiff’s opposition to the instant motions. Based on the foregoing, the Court declines to award sanctions to Plaintiff.

Conclusion

Based on the foregoing, the Court grants Roman’s motion for an order “granting relief from [Roman’s] waiver of objection to interrogatories, and for relief from waiver of [Roman’s] objections to the RFA requests, and their being deemed admitted via, among other things, withdrawal of admissions, or allowing Defendant to amend the deemed admissions.” (See Motion for Relief From Order to Deem RFA Responses Admitted at p. 2:1-4.)

As set forth above, the Court’s January 10, 2022 Order provides, inter alia, that “[t]he Court orders that the matters in Plaintiff’s First Set of Requests for Admissions to Roman are deemed admitted.” The Court grants Roman’s motion to withdraw such admissions.

In addition, the Court continues the final status conference to ______________, at 10:00 a.m., in Dept. 50 and trial to _____________, at 9:30 a.m., in Dept. 50. 

All discovery deadlines are continued based on the new trial date.  

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Roman is ordered to give notice of this order.

DATED:  March 23, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court