Opinion
G062816
11-26-2024
GAIL KAY, Plaintiff and Appellant, v. MBR OPERATING CO., Inc., et al., Defendants and Respondents.
Gail Kay, in pro. per., for Plaintiff and Appellant. Tyson & Mendes, David M. Frishman, Molly A. Gilardi and Jeffrey R. Siegel, for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-201901067104 Sheila Fell and Linda S. Marks, Judges. Reversed and remanded with directions. Request for judicial notice denied.
Gail Kay, in pro. per., for Plaintiff and Appellant.
Tyson & Mendes, David M. Frishman, Molly A. Gilardi and Jeffrey R. Siegel, for Defendants and Respondents.
OPINION
O'LEARY, P. J.
Gail Kay appeals from a summary judgment entered in favor of MBR Operating Co., Inc., and Monroe MBR, LLC (collectively defendants). During discovery, the trial court granted defendants' motion to deem admissions made by Kay. Kay argues the discovery motion was erroneously granted, leading to an erroneously granted summary judgment.
We agree with Kay because it is undisputed that the trial court's discovery motion ruling was based on a mistaken premise-that Kay had not served a belated proposed response to defendants' requests for admission. Given there is a reasonable probability the court would not have granted the discovery motion if it had not been mistaken, we reverse and remand for further proceedings.
FACTS
In her underlying lawsuit, Kay alleged that defendants were negligent and breached contractual promises for services that included "[p]ilates and exercise training." During discovery, defendant MBR Operating Co., Inc., propounded a set of 75 requests for admission (the RFAs).
After Kay did not timely respond to the RFAs, defendants moved, pursuant to Code of Civil Procedure section 2033.280, subdivisions (b) and (c), to have the RFAs deemed admitted by Kay (the admissions motion), and the trial court conducted a hearing on the motion on September 14, 2022 (all undesignated dates will refer to the year 2022). It is undisputed that on September 11, three days before the hearing, Kay electronically served on defendants a proposed response to the RFAs.
All further undesignated statutory references are to the Code of Civil Procedure.
Two days later, on September 13, defendants' counsel filed a 10-page declaration to further argue why the trial court should grant the admissions motion. In its ninth page, counsel noted the receipt of Kay's response, as follows: "The only document that I received/viewed is the 'response' on September 12, 2022 which was served on Sunday evening on September 11, 2022. There was no memorandum of points and authorities attached." Although the declaration then stated that Kay's response was attached as an exhibit, it was not.
Instead, attached was a copy of a September 11 e-mail addressed to defendants' counsel, with a subject line stating "eServe notification for Gail Kay."
The trial court (Judge Sheila Fell) conducted its hearing for the admissions motion the following day, September 14, and took the matter under submission. On September 28, it granted the admissions motion (the RFA order). The RFA order stated that defendants "did not receive any responses to requests for admissions." (Capitalization omitted.) Among other contentions, the RFA order resulted in the court deeming Kay to have admitted that she had "no evidence to substantiate that the incident [underlying her claim for injuries] occurred." (Capitalization omitted.)
In January 2023, defendants moved for summary judgment, and the trial court (Judge Linda S. Marks) later granted the motion (the MSJ order) based on the RFA order. The court entered a judgment in defendants' favor, and Kay timely appealed.
The MSJ order stated, in relevant part, that "[d]efendants ha[d] met their burden and show[ed] that [Kay] cannot establish elements of either her breach of contract or negligence claim because the [trial] court deem[ed] her to have admitted that the events surrounding her alleged injuries never occurred."
DISCUSSION
I.
APPEALABILITY
Defendants argue this appeal should be dismissed for lack of appealability. We agree with Kay that defendants assert a perplexing argument on the issue because, in this matter where summary judgment was granted, they assert a "long-established rule that '[a]n order denying a motion for summary judgment is not appealable.' [Citations.]" (Italics added). Defendants' position on appealability has no merit because both the RFA order and the MSJ order are properly before this court for review. (§ 437c, subd. (m)(1) ["A summary judgment entered under this section is an appealable judgment as in other cases"]; MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045 [on appellate review of discovery rulings].)
II.
MERITS ANALYSIS
Kay argues, inter alia, that the trial court's judgment should be reversed because the MSJ order rests on the RFA order, which erroneously granted the admissions motion. We generally review an exercise of statutory authority on a discovery issue for abuse of discretion (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 772), which "may be found when the court proceeds upon a mistaken premise or a factual finding not supported by substantial evidence" (Metis Development LLC v. Bohacek (2011) 200 Cal.App.4th 679, 693).
We agree with Kay's position because it is undisputed that the trial court mistakenly understood that defendants had not received a proposed response to their RFAs before the hearing on the admissions motion. Defendants incorrectly assert that Kay's failure to file an opposition brief in the trial court supported the court's decision on the motion. Under section 2033.280, subdivision (c) (section 2033.280(c)), the service of a proposed response to requests for admission that is in "substantial compliance with section 2033.220," is by itself sufficient to preclude granting a motion to deem admissions made, aside from issuing mandatory monetary sanctions. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 (Demyer) [construing predecessor statute: "If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion"], disapproved on another ground by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12.)
Given the inaccuracy of the trial court's finding on the point is demonstrated by the September 13 declaration of defendants' trial court counsel acknowledging receipt of Kay's response, we deny as moot Kay's request for judicial notice that on September 11 she served her proposed response to the RFAs on defendants.
We exercise discretion to entertain Kay's argument based on the undisputed facts. (Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1275-1276, fn. 3)
The section requires, inter alia, "complete and straightforward" answers to requests for admission, based on the "information reasonably available to the responding party." (§ 2033.220, subd. (a).)
Accordingly, the trial court's decision on the admissions motion should have focused on whether Kay's response substantially complied with section 2033.220, as required by section 2033.280(c). (See Katayama v. Continental Investment Group (2024) 105 Cal.App.5th 898 [describing compliance analysis].) Because the court was mistaken as to the existence of Kay's response, it did not conduct the analysis.
The parties present no argument on substantial compliance. And defendants present no argument on why the RFA order otherwise reached the correct result for the deemed admission motion. Given the trial court's mistaken premise about the procedural posture of this matter, we conclude that the absence of exercised discretion on substantial compliance supports a reasonable probability that the RFA Order would not have been entered if the court had correctly understood Kay's response had been received by defendants. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 ["'"probability"'" for prejudice analysis "'does not mean more likely than not'"].)
We express no opinion on whether both defendants were authorized to move for a court order under section 2033.280, subdivision (b).
Because it is undisputed that the trial court based its MSJ order on its RFA order, and defendants present no alternative ground on which to affirm the MSJ order (§ 437, subd. (m)(2)), it follows that the judgment should be reversed and this matter remanded for further proceedings so that the court can exercise its discretion as authorized by the governing discovery statutes. We express no opinion on how the court should rule on the merits of the admissions motion.
Defendants' appellate attorneys do not include defendants' trial court counsel who submitted the September 12 declaration we quoted. Based on appellate counsels' briefing, we caution against any mistaken view that attorneys have no independent duty as officers of courts to apprise a trial court that a proposed response to their clients' requests for admission has been served. A litigation opponent's failure to apprise the trial court does not necessarily exonerate counsel from ensuring the court is accurately informed about material circumstances. For example, rule 3.3(a)(1) of the Rules of the State Bar of California prohibits a lawyer from, inter alia, "fail[ing] to correct a false statement of material fact." According to the record, five days before the hearing on their admissions motion, defendants filed a notice that represented "no [o]ppositions ha[d] been filed [by Kay] with the court or served on [d]efendants." Two or three days later, defendants received Kay's response and notified the court about it, as quoted earlier. If we addressed the issue directly, it would be a close question as to whether defendants' trial court counsel sufficiently corrected a statement of material fact after receiving Kay's response. We give defendants' counsel-both in the trial court and this court-the benefit of the doubt because of their mistaken belief that an opposition brief by Kay was required to avoid the RFA order. (See Demyer, supra, 36 Cal.App.4th at p. 395.) As a clearer issue, appellate counsels' assertion that Kay should have informed the trial court because it was "not [d]efense counsel's responsibility" is wrong. (See In re Sandel (1966) 64 Cal.2d 412, 418 [prosecutors are "under a duty to bring [sentencing] error to the attention of the trial court as soon as possible"].)
DISPOSITION
The judgment is reversed and remanded for further proceedings to be conducted consistent with this opinion. On remand, the trial court is directed to (1) vacate its judgment and MSJ order; (2) vacate the RFA order that granted defendants' motion based on section 2033.280(c); and (3) reconsider defendants' motion based on section 2033.280(c). Appellant is entitled to her costs in this appeal.
WE CONCUR: GOETHALS, J. GOODING, J.