Judge: Yolanda Orozco, Case: 21STCV28586, Date: 2022-10-04 Tentative Ruling
Case Number: 21STCV28586 Hearing Date: October 4, 2022 Dept: 31
MOTION TO BE RELIEVED FROM DEEMED ADMISSIONS IS DENIED
Background
On August 3,
2021, Plaintiff Jerrold A. Fine (“Plaintiff”) filed a complaint against
Defendant Teri Lee Bernardi, Green Grown Bulk, Inc., and Does 1 through 10 for
(1) breach of written contract, (2) money lent, (3) money had and received, (4)
open book account, and (5) account stated. Plaintiff alleges Defendants
borrowed money from Plaintiff and failed to repay him.
On May 18, 2022,
the Court granted Plaintiff’s motion to deem Requests for Admission (RFA)
admitted.
On September 16,
2022, Defendant moved for an order to be Relieved from Deemed Admissions.
On September 21,
2022, Plaintiff filed a reply. Defendant filed an opposition on September 29,
2022.
After a “deemed
admitted order” has been entered, the party in default may seek relief from
waiver by filing a motion to withdraw or amend the deemed admission under CCP §
2033.300. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979 (discussing
former Section 2033); see also St. Paul Fire & Marine Ins. Co. v.
Superior Court (1992) 2 Cal.App.4th 843, 852 (disapproved on other grounds)
(“[Former] Section 2033 supersedes section 473 as the avenue to obtain default
relief in a situation of failure to respond to admissions requests.”).)
CCP §2033.300
provides in part: “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.” (CCP §2033.300(b).)
Notably, the requirements for relief under CCP § 2033.300 are similar to those governing relief from default under CCP § 473(b). The terms “mistake, inadvertence, or excusable neglect” as used in CCP § 2033.300 are given the same meanings as similar terms found in CCP § 473(b). (New Albertsons, Inc. v. Sup.Ct. (2008) 168 Cal.App.4th 1403, 1419.)
“Because the law strongly favors trial and
disposition on the merits, any doubts in applying section 2033.300 must be
resolved in favor of the party seeking relief. Accordingly, the court's
discretion to deny a motion under the statute 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, supra, 168
Cal.App.4th at 1420-1421.)
Discussion
Plaintiff
originally propounded RFA’s on Defendant on November 29, 2021. (Min. Or.
05/18/22.) After being granted two extensions, Defendant failed to timely
respond. (Id.) On the hearing for the initial hearing for the RFA on May
05, 2022, Defendant finally served responses to the RFAs but failed to verify
them. (Id.) Defendant was ordered to re-serve her responses with a
verification signed under penalty of perjury no later than May 15, 2022, but
Defendant failed to comply by the given deadline. (Id.) The Court
granted Plaintiff’s motion that RFA’s be deemed admitted and awarded Plaintiff
sanctions in the amount of $318.91. (Id.)
Defendant now
moves for an order relieving her from the admissions of the RFA’s and
permitting her to serve admissions responsive to Plaintiff’s RFA. Defendant
asserts that her mistake or neglect in failing to respond to the RFA was due to
having to care for her son and her daughter-in-law’s newborn along with caring
for her terminally ill sister. (Bernardi Decl. ¶¶ 5-7.) Therefore, due to the
time she had to care for her family, Defendant was unable to timely respond. (Id.)
Plaintiff points
out that in Defendant’s opposition to the RFA motion, Defendant mentions her
daughter-in-law’s health issues and Defendant’s own health issue but made no
mention of Defendant’s sister. (Soffer Decl. ¶ 17.) Defendant asserts that a
reasonably prudent person under similar circumstances, who had to care for a
newborn and a terminally ill sister would have failed to timely respond.
Defendant also asserts that Plaintiff will not be substantially prejudiced if
the deemed admissions are withdrawn because Defendant has answered discovery
and all that may be left to do would be to depose Defendant before the February
14, 2023, trial date.
Plaintiff asserts
he moved for summary judgment based on the deemed admissions, for which the
hearing is scheduled on November 14, 2022. If this Motion were to be granted,
it would become necessary for Plaintiff to engage in further discovery and
propound additional written discovery or take her deposition or that of others.
The Court notes that in the past, Plaintiff’s motions to compel were granted
because Defendant had failed to comply with discovery. In reliance on the RFA’s
motion being granted, Plaintiff, therefore, did not engage in further written
discovery after his motion was granted.
Defendant asserts
that during the time the motion relating to the RFA’s was granted, Defendant
had been unable to afford to retain a lawyer and therefore failed to truly
comprehend the consequences of inaction during the litigation of this case.
(Reply at 2:10-22.) Defendant has since retained counsel. Defendant also
asserts that she forgot to answer the RFA’s due to having to care for her
family, even though she requested extensions from Plaintiff to the propounded
discovery.
“Accordingly, the court's discretion to
deny a motion under the statute 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, supra, 168 Cal.App.4th at 1420–1421.) “Mere
mistake, inadvertence or neglect does not warrant relief unless, upon a
consideration of all of the evidence, it is found to be excusable.” (Martin v. Taylor (1968)
267 Cal.App.2d 112, 113 [internal citation omitted].)
The Court finds
that Defendant has failed to show that her failure to timely respond to the RFA’s
or serve a verification was the result of mistake, inadvertence, or excusable
neglect such that Plaintiff is not entitled to relief under the Code of Civil
Procedure section 2033.300 subdivision (b).) The delay in bringing this Motion and
failure to provide verified RFA responses by the May 15, 2022, deadline was inexcusable.
Plaintiff’s Motion is DENIED.
Conclusion
Defendant’s Motion to be Relieved from Deemed Admissions is DENIED.
Clerk to give notice.