LILLIAN CARTER ET AL VS UNIVERSAL STUDIOS INC ET AL

Tentative Rulings

Case Number: ****3946 Hearing Date: April 25, 2022 Dept: A

[TENTATIVE] Deny defendant's ex parte application. As explained in Mission Power Engineering Co. v. Continental Casualty Co. (1995) 883 F. Supp. 488, 492-93, two things are necessary to support an ex parte application:

"First, the evidence must show that the moving party's cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Second, it must be established that the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect. "

Moreover, "ex parte applications are not intended to save the day for parties who have failed to present requests when they should have."

Here the discovery cutoff passed a long time ago. Defendant does not directly ask to reopen discovery, makes no showing of good cause to do so, and offers no explanation of why the discovery he now seeks was not sought a long time ago during the long pendency of this case. Granting defendant the relief he seeks would surely require continuing the trial yet again to the detriment of plaintiff.

Defendant's reasons for seeking ex parte relief are not explained but it seems apparent that the crisis nature of this application is a result of defendant's long and largely unexplained delay in preparing for trial.

Case Number: ****3946    Hearing Date: July 28, 2020    Dept: A

# 13. Lilian Carter v. Universal Studios, Inc., et al.

Case No.: ****3946

Matter on calendar for: Motion to Deem Requests for Admissions as Admitted; Motion to Set Trial Date

Tentative ruling:

1. Background

   This action arises out of a collision in which Defendant Marion “Suge” Knight struck Terry Carter with his car, and killed him, near 1201 Rosecrans Avenue, Compton, on January 29, 2015. Plaintiffs Lilian Carter, individually and as personal representative as the estate of Terry Carter, Nekaya Carter, and Crystal Carter filed a complaint alleging:

1. Wrongful Death;

2. Negligence;

3. Assault and Battery.

   Plaintiffs move to deem their Requests for Admission, Set One, as admitted by Defendant Knight. Plaintiffs move separately for the Court to set a trial date; the previous date was vacated pursuant to the general orders issued by the Chief Justice and the Presiding Judge of this Court due to the Covid-19 pandemic.

   The motions originally were set for hearing on June 23, 2020. The motion to deem the requests as admitted was continued to July 28, 2020, and the motion to set a trial date was taken off-calendar for lack of proper notice. Plaintiffs have re-served the motion to set a trial date.

   For the reasons set forth below, the Court denies the motion to deem the request for admissions as admitted. The motion to set a trial date is granted in part.

1. Standard

   1. Motion to Deem Requests for Admission as Admitted

      “ ‘Requests for admission . . . are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting trial.’ [Citation.]” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 774–775.) Under Code of Civil Procedure ; 2033.280(d), if a party fails to timely respond to requests for admission, the propounding party may move for an order deeming the matter admitted. (Id. at 775.) “The court must also impose monetary sanctions upon the party and/or the attorney for the failure to serve a timely response to the RFAs. [C.C.P., ; 2033.280(c).]” (Ibid.) If the responding party serves its responses before the hearing the court must deny the motion. (Ibid.) “ ‘But woe betide the party who fails to serve responses before the hearing. In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party.’ [Citation.]” (Ibid.)

   2. Motion to Specially Set a Trial Date

California Rules of Court, Rule 3.1335(a), requires a party requesting to advance, specially set, or reset a case for trial to file a noticed motion or ex parte application. The moving party must make an affirmative showing of good cause based on a declaration that is served with the motion or application. (Cal. Rules of Court, Rule 3.1335(b).)

1. Analysis

   1. Judicial notice

Plaintiffs request judicial notice of the Presiding Judge’s July 10, 2020 general order. This request is granted. (Evid. Code, ; 452(c).)

1. Motion to Deem Requests for Admission as Admitted

Knight served responses to plaintiffs’ requests for admission prior to the hearing. Plaintiffs argue Knight failed to properly verify the responses, making the responses are invalid. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) (Knight is incarcerated, and his counsel provided a transcript of a telephone call in which Knight orally verified the responses.) Knight subsequently signed a verification and re-served the responses. This issue is now moot.

Under Code of Civil Procedure ; 2033.280, an untimely response to requests for admission results in a waiver of all objections unless “[t]he court, on motion” relieves the responding party from its waiver. Relief requires that (1) the party has subsequently served a statutorily compliant response and (2) “the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (C.C.P. ; 2033.280(a).) Knight has shown inadvertence and excusable neglect for his failure to timely serve his responses. He was served while pro per and incarcerated, with an envelope not labeled as legal mail (Opp. Exh. 19), and while it was known he was in the process of retaining counsel.

Plaintiffs argue that the Court should disregard Knight’s showing of mistake, inadvertence or excusable neglect because Knight made that showing in his opposition to plaintiffs’ motion, rather than in a separately-filed motion. The argument is unpersuasive; it is a distinction without difference. The requests for admission are currently before the Court, as is Knight’s showing that he is entitled to relief.

Knight has served responses and shown he is entitled to relief from waiver. The motion to deem the requests for admission as admitted are denied.

1. Motion to Set Trial Date

Plaintiffs ask that the Court set this case for trial within the five-year statutory period under Code of Civil Procedure ; 583.310. This case was filed on June 3, 2015. Section ; 583.310 mandates that an action be “brought to trial within five years after the action is commenced against the defendant.” The five-year date would have passed on June 3, 2020. However, the Judicial Council of California issued Emergency Rules to address issues arising from the Covid-19 pandemic; those rules include a 60-day extension to section 583.310’s deadline. (Cal. Rules of Court, Emer. Rule 10(a).) Accounting for the emergency rule, the new five-year date for this case would be August 3, 2020.

Plaintiffs also argue that the five-year date should be extended by an additional sixteen months, to account for a period in which they were prevented from moving the case forward by Defendant Knight’s inability to secure counsel. The case was remitted to this Court from the Court of Appeal on July 25, 2018. The Court held status conferences on April 11, 2019, May 9, 2019, and June 28, 2019, but Knight’s counsel failed to appear. The Court then granted Knight’s request for additional time to secure counsel on September 13, 2019. On December 6, 2019, Knight represented that he had hired an attorney, Dawn Christensen, to represent him. The Final Status Conference then was scheduled for March 3, 2020, with a trial date of April 6, 2020. As noted, ultimately Knight retained a different lawyer.

Code of Civil Procedure ; 583.340 governs the calculation of the five-year limit and excludes time during which “[b]ringing the action to trial . . . was impossible, impracticable, or futile.” (C.C.P., ; 583.340(c).) “ ‘What is impossible, impracticable, or futile is determined in light of all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings.’ [Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 251.]” (Moss v. Stockdale, Peckham & Werner (1996) 47 Cal.App.4th 494, 502.)

The Court concludes that plaintiffs were delayed by eight months, April 2019 to December 2019, by no fault of their own. During that period bringing the action to trial would have been impossible or impracticable. Accordingly, the date by which this action must be brought to trial is extended by eight months, to April 3, 2021.

Knight, in his opposition, argues that plaintiffs have not shown reasonable diligence because they searched for Mr. Culpepper, Knight’s prior counsel, only in the state corrections system, and not in the federal system. (Opp. at 9.) This is unpersuasive; it does not change the analysis.

1. Ruling

   The motion to deem the requests for admission as admitted is denied.

   The motion to set a trial date is granted, in part. The trial date will be set at hearing.

   Next dates:

   Notice: