USC INVESTMENTS LLC VS FARYAN AFIFI ET AL

Tentative Rulings

Case Number: BC678400    Hearing Date: December 11, 2019    Dept: 61

Defendant and Cross-Complainants Leila Afifi and Faryan Afifi’s Motion for Relief from Summary Adjudication is DENIED.

I. MOTION FOR RELIEF FROM DEFAULT

Code of Civil Procedure section 473, subdivision (b) states:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment . . . unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

Afifi moves to set aside this court’s grant of summary adjudication in favor of USCI on September 23, 2019, on the grounds that Afifi erroneously (but reasonably) failed to provide an authenticated survey of the Afifi property and of a parcel map showing the County’s estimation of the property’s size. (Motion at pp. 6–8.) Afifi presents a new declaration by a different surveyor, Erik Bowers, to fill in the gaps left by the prior motion.

No relief is proper under the above statute, as a careful reading of this court’s prior ruling ought to make clear. To be sure, the court based its ruling in part on Afifi’s failure to have the operative survey authenticated by a currently licensed surveyor, but also expressly stated that “even if this evidence was admissible,” the Afifis presented no evidence of when the County’s tract map that Afifi concurrently relied upon “was created, whether the fence bordering the disputed area existed at that time, or even whether the tract map had or has any role in the assessment of Defendants’ property taxes.” (9/23/19 Ruling at p. 10.) Although Afifi presents the Bowers declaration to attest to “the accuracy and authenticity of the same evidence presented by defendants and cross-complainants in opposition to their motion” (Motion at p. 6), it was not the lack of accuracy or authenticity that was alone fatal to Afifi’s claims, but the absence of any argument grounded in evidence linking those documents to Afifi’s payment of taxes on the disputed land. The failure to “properly advance an argument” is not excusable under section 473. (Garcia v. Hejmadi (1997) 58 Cal.App.4^th 674, 682.)

Accordingly, Afifi’s Motion for Relief from Summary Adjudication is DENIED.

Case Number: BC678400    Hearing Date: October 31, 2019    Dept: 61

Defendant and Cross-Complainant Leila Afifi’s Motion to Compel Further Responses to Requests for Admission from Plaintiff and Cross-Defendant USC Investments, LLC is GRANTED as to Requests No. 27–34, 42–44, 60, 62, and 63. Sanctions are awarded against USCI and its counsel in the amount of $1,661.

MOTION TO COMPEL FURTHER RESPONSES

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response,” if they contend the response is incomplete or that an objection is without merit. (Code Civ. Proc. § 2033.290, subd. (a).)

Afifi seeks further responses to Requests No. 27–34, 42–44, 60, 62, and 63, which concerned conditions on the property regarding the number of dogs and their noise. USCI responded that it did not reside on the property and lacked sufficient information to answer. (See Separate Statement.)

USCI argues that Afifi failed to adequately meet and confer before filing this motion. (Opposition at p. 2.) That effort consisted of the sending of one letter to USCI, following a return letter from USCI. (Afifi Decl. Exh. 3.) The letters explain Afifi’s attitude toward USCI’s objections and USCI’s rationale therefore. The court regards this exchange of letters as sufficient prelude to this motion.

USCI argues that in responding to the requests it would only be obtaining information from the actual resident on the property Patrcia Hartunian, who has already served discovery in this matter. (Opposition at pp. 4–5.)

USCI’s argument is without merit. Afifi may obtain admissions or denials from a party regarding matters already submitted to another, by virtue of the peculiar function that admissions are designed to serve.

Most of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, 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 the trial. For this reason, the fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time for making it is during discovery procedures, and not at the trial. Likewise, the fact that one party has unilaterally bound himself, via deposition, does not excuse the other party from being required to make an admission regarding the same facts. The issue is not disposed of until both parties are heard from.

(Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429, italics added.) Thus the fact that Hartunian has in other requests or interrogatories provided similar information is of little import. Afifi is entitled to responses from the LLC.

Accordingly, the Motion to Compel Further is GRANTED as to Requests for Admission No. 27–34, 42–44, 60, 62, and 63.

SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further discovery responses, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Afifi asks for $6,138.50 in sanctions, representing 8.5 hours of work at $715 per hour, plus a filing fee of $61.00. (Afifi Decl. ¶ 7.) The court awards sanctions against USCI and its counsel in the amount of $1,661, consisting of four hours at $400 an hour, as well as the filing fee.