Judge Theresa M. Traber, Case 20STCV49702 2023-02-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV49702, Date: 2023-02-22 Tentative Ruling

Case Number: 20STCV49702 Hearing Date: February 22, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 22, 2023 TRIAL DATE: February 28, 2023

CASE: Hermozo Textile, LLC v. Trendy JS’, et al.

CASE NO.: 20STCV49702

MOTION FOR ORDER DEEMING TRUTH OF MATTERS IN REQUESTS FOR ADMISSION AS ADMITTED

MOVING PARTY: Defendant Hun Young An

RESPONDING PARTY(S): Plaintiff Hermozo Textile, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for breach of contract filed on December 29, 2020. Plaintiff alleges that Defendants failed to pay for fabric goods sold by Plaintiff and accepted by Defendants.

Defendant Hun Young An moves for reconsideration of the Court’s November 7, 2022 order deeming Plaintiff’s Requests for Admissions propounded to Defendant as admitted.

TENTATIVE RULING:

Defendant’s Motion for Reconsideration is GRANTED.

The Court’s November 7, 2022 order deeming Plaintiff’s Requests for Admissions propounded to Defendant An as admitted is vacated. The Court’s order on the award of sanctions for the failure to timely respond to the Requests for Admissions stands.

DISCUSSION:

Defendant Hun Young An moves for reconsideration of the Court’s November 7, 2022 order deeming Plaintiff’s Requests for Admissions propounded to Defendant as

admitted.

Plaintiff’s Evidentiary Objections

Plaintiff raises several objections to the supplemental declaration of Ryan Ellis in support of this motion. Plaintiff cites no law requiring the Court to rule on objections to a motion for reconsideration, as opposed to a special motion to strike under Code of Civil Procedure section 425.16, or a motion for summary judgment or adjudication under Code of Civil Procedure section 437c. Further, Plaintiff’s objections are conclusory and without merit, attacking the evidentiary weight of the statements in the declaration rather than their admissibility. These objections are therefore OVERRULED.

Legal Standard

Code of Civil Procedure § 1008 provides, in relevant part:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

* * *

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(Code Civ. Proc. § 1008(a), (d), (e) (bold emphasis added).)

In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 [“With regard to new facts, ‘the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’”].)

Timing

As stated above, Code of Civil Procedure section 1008(a) requires that this motion be filed within 10 days of the date of service of written notice of entry of the order at issue. The declaration of Ryan A. Ellis states that written notice of the entry of the order on the Motion to Deem Responses to Plaintiff’s Requests for Admissions as Admitted was provided to Defendant by email on November 8, 2022. (Declaration of Ryan Ellis ISO Mot. ¶ 2 Exh. 1.) Pursuant to Code of Civil Procedure section 1010.6, which extends the deadline to file this motion by two court days for electronic service, the tenth day plus two court days would have been Sunday, November 20, 2022. (Code Civ. Proc. § 1010.6.) Therefore, the last day to file this motion was Monday, November 21, 2022, the date this motion was filed. (Code Civ. Proc. § 12.) This motion is therefore timely.

Analysis

Defendant Hun Young An moves for reconsideration of the Court’s November 7, 2022 order deeming Plaintiff’s Requests for Admissions propounded to Defendant as

admitted. Defendant contends that the new or different facts that warrant reconsideration are that full, complete, verified, and objectionless responses to Plaintiff’s requests for admissions were served on October 18, 2022. (Ellis Decl. ¶ 3 Exh. 2.) Pursuant to the Court’s original ruling on this motion on January 13, Defendant has filed a supplemental declaration to explain why this information was not presented to the Court on November 7, 2022. In that Declaration, Attorney Ellis states that Defendant did not oppose the motion because responses were served, thereby, implicitly, conceding the issue of the failure to timely serve responses. (Supplemental Declaration of Ryan Ellis ISO Mot. ¶ 11.) Attorney Ellis states that he was not able to attend the November 7, 2022 hearing, and so arranged for an appearance attorney for that hearing only. (Id. ¶ 6.) Attorney Ellis provided specific instructions to the appearance attorney that the motion should not be granted, and to oppose any sanctions, or, failing that, to request sanctions be awarded against Defendant only, and not Defendant’s counsel. (Id. ¶ 11.) Instead, the appearance attorney, failing to follow instructions, submitted on the Court’s tentative ruling deeming the requests for admissions as admitted. (Id. ¶ 18.)

Plaintiff contends that Defendant’s argument is, essentially, an argument of attorney mistake, which, Plaintiff argues, is not a valid basis for reconsideration of the prior motion. Plaintiff cites no law standing for the proposition that an appearance attorney’s failure to follow instructions of the counsel of record to apprise the Court that responses had been served is an invalid basis for granting a motion for reconsideration. Plaintiff’s generic citation to West’s California Jurisprudence is not sufficient. Plaintiff’s contention that Defendant did not adequately justify the failure to respond to the original motion is also not well-taken. The Court construes Defendant’s supplemental declaration as stating that the failure to respond was precisely because Defendant did not dispute its failure to provide proper responses before the motion was filed. (Ellis Supp. Decl. ¶ 11.) The Court also notes that Plaintiff made no mention at the original hearing that Defendant’s responses had been served, which its counsel likely should have done as an officer of the Court. For that reason, the Court is disinclined to take a negative view of Defendant’s choice to simply raise the late-served responses at the hearing, where it appears that Plaintiff, with full knowledge of these facts, concealed them from the Court to secure a ruling to which it was not entitled.

Plaintiff’s final argument is that Defendant’s responses were incomplete and therefore not code-compliant. The Court disagrees. The responses are verified, and although there is a preamble with objections, each response also contains either “deny,” “admit,” or “deny” with an additional explanation concerning the August 2, 2022 closure of Defendant. These responses are in substantial compliance. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 781 [characterizing as appropriate a “straightforward denial that included an explanation as to the reason the statement was denied”].) Indeed, a litany of objections followed by the “boilerplate statement ‘[w]ithout waiving these objections,’” followed by a flat denial, are “properly construed . . . as unequivocal denials.” (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 268.) Most of Plaintiff’s responses are thus construed as outright denials, and the remaining responses are outright admissions with no objections or explanations.

In consideration of the effect of an order deeming admissions as admitted, and the sworn statements of Attorney Ellis explaining Defendant’s submission on the original ruling, the Court finds that Defendant has satisfied the burden to demonstrate different facts or circumstances that would warrant reconsideration. Had the Court been made aware that responses to the Requests for Admissions were served, the Court would not have issued an order deeming the requests as admitted. Defendant’s counsel of record acted with diligence, and the failure to bring these facts to the Court’s attention cannot be blamed on Defendant or Defendant’s counsel’s lack of diligence.

CONCLUSION:

Accordingly, Defendant’s Motion for Reconsideration is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: February 22, 2023. ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.