EROL GULER VS GALEZ L ALFANZO ET AL

Tentative Rulings

Case Number: BC599229    Hearing Date: March 05, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Defendants, Luis Galvez, Ricardo Arrivillaga and Ricardo’s Nursery (“Defendants”) propounded supplemental interrogatories, set six, and request for production of documents (“RPDs”), set six, on Plaintiff Erol Guler (“Plaintiff”) on 12/1/20. To date, despite attempts to meet and confer, Plaintiff has not served responses. Defendants therefore seek an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

Defendants’ motions are unopposed and granted. Plaintiff is ordered to serve verified responses to supplemental interrogatories, set six, and RPDs, set six, without objections, within ten days. (CCP §§ 2030.290(a),(b), 2031.300(a),(b).)

Sanctions are mandatory. (CCP §§ 2030.290(c), 2031.300(c).) Defendants seek sanctions in the amount of $1,676.65 for each motion. Defense counsel bills at $170 per hour. The court awards Defendants one hour for preparing each form motion to compel [two hours total] and one hour to appear at the hearing- but awards this time once- all at the requested rate $170 per hour, for a total of $510 in attorney’s fees. Further, Defendants are awarded $61.65 for the motion filing fees, or $123.30 total as costs.

Defendants seek sanctions against Plaintiff and Plaintiff’s attorney of record. Defendants do not describe any conduct warranting sanctions against Plaintiff personally. Sanctions are imposed against Plaintiff’s attorney of record. Plaintiff’s counsel is ordered to pay sanctions to Defendants, by and through counsel of record, in the total amount of $633.30, within twenty days.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 5^th day of March, 2021

Case Number: BC599229    Hearing Date: June 25, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Procedural History

   Defendants propounded RFAs (set two) on Plaintiff on 6/05/17. Defendants made numerous attempts to meet and confer with Plaintiff’s attorney. Ultimately, on 9/21/17, they filed a motion to deem the RFAs admitted. The moving papers were served on Plaintiff via service on his attorney of record at the time, D. Hess Panah.

   On 10/10/17, Plaintiff filed a notice of association of counsel. The notice indicated that the McElfish law firm was associating in with Panah as Plaintiff’s additional attorney of record, and asked that all future correspondence be served on both attorneys.

   On 11/08/17, Defendants filed and served a notice of lack of opposition to its motion to deem RFAs admitted. Defendants served the notice on Panah and McElfish.

   On 11/16/17, the Court called the motion for hearing. The Court had issued a tentative ruling granting the motion in light of the lack of opposition. Plaintiff appeared at the hearing through attorney Joseph Faccone, Jr. The Court, at the conclusion of the hearing, adopted its tentative ruling and granted the motion to deem RFAs admitted.

2. 12/14/17 Motion for Relief from Order Deeming RFAs Admitted

   On 11/20/17, four days after the hearing on the motion, Plaintiff filed his first motion for relief from the Court order deeming the RFAs admitted. The Court ruled as follows:

1. Code of Civil Procedure

Plaintiff moves for relief pursuant to CCP §§473 and 2033.280. Defendants correctly note, in opposition to the motion, that relief under §473(b) is not available to set aside an order deeming RFAs admitted. Such motion must be made per §2033.300(a). §2033.300 provides a mechanism for a party to seek relief from an admission. Per Wilcox v. Birtwhistle (1999) 21 Cal.4^th 973, 979, this section applies even if the RFAs were “deemed admitted” during the litigation. Pursuant to St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4^th 843, 852, because the Code expressly provides mechanisms for relief from waiver of objections and also relief from deemed admissions, CCP §473(b) cannot be invoked to seek such relief.

Defendants also correctly note, in opposition to the motion, that §2033.280 does not provide for the relief sought here. §2033.280(a) permits a party to seek relief from a waiver of objections. This motion would necessarily be made after the time to respond has run, but before a motion to deem the RFAs admitted has been heard and granted.

The motion should have been made per §2033.300, which provides:

(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.

(b) 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.

(c) The 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.

1. Substantive Analysis

Even if Plaintiff had brought the motion per §2033.300, the motion would be denied. Plaintiff failed to show “excusable neglect.” The motion is premised on the contention that Plaintiff’s attorney, Panah, failed to provide copies of the outstanding RFAs to Plaintiff’s newly associated attorney, McElfish, at the time McElfish associated with Panah.

The Court is satisfied with the evidence showing that this is why the RFAs were not responded to between 10/10/17 (the date McElfish associated into the case) and 11/13/17 (the date McElfish concedes knowledge of the impending motion to deem RFAs admitted).

The foregoing, however, fails to sufficiently establish that the RFAs were deemed admitted as a result of excusable neglect. As Defendants correctly note in opposition to the motion, the RFAs were propounded in June. There were four attempts to meet and confer prior to filing the motion. Panah remains an associated attorney of record in this case to this day, and he failed to show that his failure to respond to the discovery at issue between June and September (when the motion was filed) was excusable.

Additionally, McElfish concedes it learned of the hearing on the motion no later than Monday, 11/13/17. The hearing on the motion was on Thursday, 11/16/17. McElfish fails to explain what it did between Monday and Thursday to attempt to preclude an adverse ruling against its client. The Code makes clear that the Court cannot grant a motion to deem RFAs admitted if responses are served prior to the hearing. McElfish had, at a minimum, three days to obtain substantially compliant responses prior to the hearing, but failed to do so.

Plaintiff argues, at length, that there is a policy in favor of hearing cases on their merits. This is, of course, correct. Plaintiff’s interpretation of the statute, however, would have the Court ignore the word “excusable,” which poses a real and true limitation on the Court’s power to grant a motion for relief.

Both the failure to respond for many months and also the failure to respond once Counsel was made aware of the impending motion is not “excusable” as a matter of law. Thus, even if Plaintiff had moved for relief under the correct statute, the motion would be denied.

1. 1/29/18 Ruling on Motion for Relief from Deemed Admissions

   On 12/29/17, Plaintiff filed a second motion to withdrawn matters deemed admitted. The Court ruled as follows:

   Plaintiff filed his motion pursuant to CCP §2033.300. The motion, however, is premised on exactly the same arguments that were previously advanced in connection with the 12/14/17 motion.

   The motion is denied for two reasons. First and foremost, the motion is an improper motion for reconsideration. CCP §1008(b). Plaintiff fails to set forth any new facts, law, or circumstances that would justify reconsideration of the prior ruling. Notably, neither the court’s prior order nor the minute order indicates that the prior motion was denied “without prejudice.” The motion was simply denied. As Defendant correctly notes in opposition to the motion, Plaintiff is attempting to get a second bite at the apple by way of this motion.

   Second, even if the Court were to reconsider the issue, the Court’s analysis, above, applies equally to the instant motion. The Court previously expressly considered and denied Plaintiff’s request for relief pursuant to CCP §2033.300. Plaintiff has presented nothing new, and the motion is denied again for the same reasons discussed previously.

2. Instant Motion

   On 4/22/20, Plaintiff filed the instant renewed motion for relief from the deemed admissions. The motion is denied for several reasons.

   First, the motion is a renewed motion, which is governed by CCP §1008(b). §1008(b) requires new or different facts, circumstances, or law. The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 150. The burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213. A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration was properly denied where based on evidence that could have been presented in connection with the original motion. Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.

   Plaintiff’s renewed motion argues it meets this standard because this is the first time Plaintiff has addressed Co-Counsel, Hess Panah’s failure to respond to the discovery or the motion. These facts, however, were available to Plaintiff at the time he filed his original and second motions for relief. The fact that he chose not to include these facts in the moving papers does not render them “new or different” as defined in §1008(b).

   Second, Plaintiff erroneously argues that his attorney’s conduct need not be excusable in order to vacate the deemed admissions. Plaintiff relies on CCP §473(b) to support this argument. As noted in connection with the Court’s original order denying Plaintiff’s first motion, §473(b) does not provide a basis for the relief sought. The motion must be made solely pursuant to §2033.300. §2033.300(b) expressly requires the neglect at issue to be “excusable.” As the Court previously noted twice, Counsel fails to show excusable neglect. This remains the case, and the Court would not grant this motion even if it were the first motion for relief.

   Third, Defendant correctly notes in opposition that the discovery cut-off in this case passed on 2/28/20. The trial date has been vacated due to COVID-19, but the discovery cut-off has not been reopened. If this motion were granted, and the deemed admissions were withdrawn, substantial additional discovery would become necessary. The case has been pending for nearly five years, since October of 2015. §2033.300(b) only permits the Court to grant a motion to withdraw admissions if it finds the party in whose favor the admissions were made would not be prejudiced by the ruling on the motion. In light of the timeline of this case, Defendant would clearly be prejudiced if this motion were granted.

   For each of the foregoing reasons, the renewed motion to vacate the deemed admissions is denied.

   Defendant seeks imposition of sanctions in connection with this motion. CCP §2023.030(a) permits the Court to impose sanctions on any party or attorney who engages in an abuse of the discovery process. §2023.010(h) defines misuse of the discovery process to include “making or opposing, without substantial justification, a motion to compel or limit discovery.” This motion does not technically do so; it seems relief from a deemed admissions order. Notably, §2033.300, which expressly governs motions to vacate admissions, does not provide for imposition of sanctions in favor of the successful party. The request for sanctions is therefore denied.

   Plaintiff is ordered to give notice.

    

   Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the parties do not submit on the tentative, they should arrange to appear remotely. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

   Dated this 25^th day of June, 2020

Case Number: BC599229    Hearing Date: February 03, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

The Court granted Plaintiff’s motion to vacate dismissal on 12/19/19. The Clerk erroneously failed to enter the order vacating the dismissal on that date. For reasons that are not clear, Plaintiff rescheduled the hearing on the motion to 2/03/20. The Clerk contacted Plaintiff’s attorney to request the motion be taken off calendar, but to date it remains on calendar.

It does not appear any issues remain in connection with this motion for relief. The dismissal has already been vacated. The Court therefore takes the motion off calendar at this time.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

Case Number: BC599229    Hearing Date: December 19, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Defendants propounded supplemental interrogatories (set four) supplemental RPDs (set four) on Plaintiff on 1/08/19. On 4/02/19, the Court issued an order compelling Plaintiff to serve responses to the foregoing discovery, without objections, within ten days. The Court also imposed monetary sanctions. On 6/26/19, because Plaintiff had still not served responses, the Court granted Defendants’ motion for terminating sanctions.

On 10/07/19, Plaintiff filed this motion to vacate the dismissal. The Court has read and considered Rodriguez v. Brill (2015) 234 Cal.App.4^th 715, and finds the case is on all fours with the instant case. The Rodriguez Court held that (a) a judgment of dismissal that implements a terminating sanction for discovery abuse is a “dismissal entered” for purposes of application of §473(b)’s mandatory relief provision, and (b) an application for relief from a terminating discovery sanction is “in proper form” if (1) verified discovery responses are delivered to opposing counsel before the hearing on the application for relief and (2) the content of those responses substantially complies with applicable requirements. Rodriguez at 719-720. Notably, Plaintiff served responses in substantial compliance with the Code shortly before the hearing on the motion for terminating sanctions; Defendants’ only argument is that the verifications are deficient, but the articulated deficiency (failure to identify the set number of the discovery at issue) does not cause the responses to violate the “substantial compliance” requirement of Rodriguez.

Defendants also argue that Counsel failed to articulate any facts showing why responses were not timely served and the opposition was not timely filed. Per Rodriguez, supra, relief is mandatory under the circumstances; there is no requirement that specific facts be articulated.

The motion for relief from dismissal is granted.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.