Opinion
A151891
11-09-2018
VINESH P. LOCHAN, Plaintiff and Appellant, v. ARMANDO SOLORIO, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG15778482)
In July of 2015, plaintiff sued defendant for assault and battery. In November of that year, defendant commenced discovery, including requests that plaintiff admit the truth of 10 statements. Plaintiff failed to respond in a timely fashion. In March of 2017, defendant moved for "An Order That The Truth of Matters Specified in Defendant's Requests for Admissions Be Admitted." In April, defendant's motion was granted. Plaintiff's motion to set aside that decision was denied on May 10. On May 12, following a bench trial, a judgment for defendant was entered. Plaintiff's new trial motion was denied on July 5, and five days later, plaintiff filed a notice of appeal.
The gist of plaintiff's appeal, as expressed in his opening brief, is that he ought to have been granted relief from his admissions. He does not challenge the validity of the underlying ruling granting defendant's motion to deem the "matters specified" admitted. Plaintiff's argument runs as follows:
"Because the Request for Admissions demanded, inter alia, that Plaintiff acknowledge the falsity of the allegations of his complaint, the order establishing the truth of those requests had a devastating effect, depriving Plaintiff of a fair trial. [¶] The Legislature provided a remedy in a case such as the instant one, where the error of a party's counsel will not be attributed to the party, if a declaration of fault is filed by that party's errant counsel. [¶] [Code of Civil Procedure section] 2033.300[, subdivision] (1) expressly provides for a motion to be filed by a party seeking relief from a deemed admissions order by the court if the admissions resulted from 'mistake, inadvertence or excusable neglect.' [¶] These terms have the same meaning as they appear in CCP § 473(b) with respect to default. New Albertsons, Inc. v. [Superior Court (2008)] 168 Cal.App.4th 1403, 1420 [(New Albertsons, Inc.)].
"This is a policy favoring relief: 'CCP § 2033.300 is designed to eliminate undeserved windfalls obtained through requests for admission and further the policy favoring resolution of lawsuits on the merits. Therefore, any doubts must be resolved in favor of the party seeking relief. [Citation.]' (2 Weil & Brown, Cal. Prac. Guide: Civil Proc. Before Trial, § 8:1386.3.)
"In the instant case, the supporting declaration sets forth the mistake Plaintiff's counsel made in relying upon the court's tentative ruling instead of appearing at the hearing, resulting in the court's granting Defendant's motion to deem his requests admitted, a disastrous result for Plaintiff and obviating any opportunity for him to present his case at trial."
At another point in his brief, plaintiff states he "had not filed opposition to Defendant's motion because he intended to explain at the hearing thereon that Plaintiff's responses were delayed because of Plaintiff's deteriorated health. But relying upon the tentative ruling denying the motion, he believed it unnecessary to appear to make such an explanation."
"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." (Code Civ. Proc., § 2033.300, subd. (a).) "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." (Id., subd. (b).)
It is clear from this language that a motion to withdraw an admission is confided to the trial court's discretion. (E.g., New Albertsons, Inc., supra, 168 Cal.App.4th at pp. 1420-1421.) The court's decision is reviewed according to the deferential abuse-of-discretion standard. We have held that this standard allows a reviewing court to reverse only if it concludes the trial court abused its discretion, which occurs " 'only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.' " (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524.) Plaintiff cannot satisfy this standard.
Plaintiff makes it sound like his failure to present oral argument to the trial court was a decisive reason why defendant's motion was granted. This is disproven by the detailed order prepared by Judge Jo-Lynne Q. Lee denying plaintiff's motion for relief:
"Plaintiff's counsel has not established that the order granting the motion to deem admitted resulted from mistake, inadvertence, surprise or excusable neglect. Plaintiff's counsel contends that he failed to appear at the hearing on April 19, 2017, based on inadvertence or excusable neglect. Specifically, counsel asserts that he had originally intended to contest the tentative ruling but withdrew his notice of intent to contest based on the understanding communicated to opposing counsel and the court that the court would not change the tentative ruling continuing the motion to April 26, 2017.
"Plaintiff's declaration is not persuasive. Counsel for Defendant filed proof of service of the motion to deem the requests admitted on April 17, 2017, and gave notice that he intended to contest the tentative ruling continuing the motion. Plaintiff's counsel could not unilaterally prevent the court from modifying the tentative ruling based on a communication that he did not intend to appear based on his assumption that the court would not change the tentative ruling. That assumption is inconsistent with the function of tentative rulings and also inconsistent with the fact that counsel for Defendant filed proof of service and gave notice of his intent to contest.
"In addition, the order deeming the requests admitted did not request [result] from counsel's failure to appear. It resulted from the fact that Plaintiff did not respond to the Requests for Admission, did not respond to meet and confer efforts, and did not oppose the motion. Counsel does not explain what argument he would have made that would have persuaded the court to deny the motion in light of Defendant's evidence that the motion was properly served and the fact that no opposition was filed. In addition, Plaintiff makes no showing that verified responses would have been provided on April 19, 2017, or even by April 26, 2017, as required to avoid an order deeming the requests admitted (Code Civ. Proc., § 2022.280[, subd.] (c).) Thus Plaintiff has not established that counsel's failure to appear at the hearing was excusable, or that his failure to appear was the reason the motion was granted."
Plaintiff makes a two-sentence argument concerning denial of his new trial motion, the operative language of which is "Plaintiff contends that his motion to vacate 'deemed admitted' should have been granted and if so, it was error for the court to have proceeded to trial without his being able to offer any evidence in support of his complaint." Given that the predicate for this argument is missing, the dependent conclusion fails.
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.