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Parvizian v. State

California Court of Appeals, Second District, Fifth Division
Sep 12, 2008
No. B203482 (Cal. Ct. App. Sep. 12, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC329725, William F. Fahey, Judge.

Syrus Parvizian, in pro. per., for Plaintiff and Appellant.

Bruce A. Behrens, Chief Counsel, Linda Cohen Harrel and Jill Siciliano-Okoye, Deputy Chief Counsel, for Defendants and Respondents.


ARMSTRONG, J.

Appellant Syrus Parvizian appeals from the dismissal of his lawsuit against his former employer, the State of California, acting by and through the Department of Transportation, respondent herein. We affirm, as we explain:

Appellant filed two complaints. The first, filed on March 3, 2005, brought causes of action for breach of contract, unpaid wages, accounting, conversion, and money had and received. The second complaint was filed on August 5, 2005, and brought causes of action under Government Code sections 12940 et seq. The cases were consolidated, and several causes of action were dismissed after a demurrer was sustained.

In August of 2006, respondent served Requests for Admission. In February 20, 2007, respondent moved for an order that matters be deemed admitted and for sanctions. (Code Civ. Proc., § 2033.280.) The motion was accompanied by the declaration of counsel attesting to the lack of response from appellant and detailing respondent's meet-and-confer efforts. Hearing on the motion was set for March 22, 2007.

All further statutory references are to that code.

Appellant did not file an opposition, but on March 13, 2007, faxed responses to the Requests for Admission to respondent.

Appellant was represented at oral argument on the motion. He argued that the motion should be denied because responses had been provided. Respondent argued that the responses were untimely and that they did not comply with section 2033.220. The court granted the motion and assessed $925 in sanctions.

On April 10, 2007, appellant moved for reconsideration of the order deeming matters admitted. Respondent opposed the motion as untimely, and again argued that the responses provided did not comply with section 2033.220. The reconsideration motion was heard on May 16. The court found that appellant's responses to the Requests for Admission did not comply with section 2033.220 and that the motion for reconsideration was untimely, and denied the motion.

A Mandatory Settlement Conference was held on June 14, but no settlement was reached. Trial was set for July 23.

On June 28, appellant moved for relief from the order deeming matters admitted on the ground of mistake, inadvertence, or excusable neglect, citing section 2033.280. The motion was accompanied by the declarations of appellant, his former counsel (he was by this time in pro. per.) and an employee of his former counsel, to the effect that on October 30, 2006, appellant and the employee went to 100 South Main Street (respondent's counsel's address), in order to serve answers to respondent's Requests for Admission. A security guard would not let them enter, but demanded that the papers be left with him. They complied.

With the motion, appellant moved ex parte for an order shortening time on the motion. The ex parte application was argued and denied on that date.

On July 6, 2007, appellant filed a document entitled "Notice of Motion and Motion for an Order that Matters Be Deemed Admitted," and for fees and sanctions. He contended that respondent had failed to respond to his Requests for Admission. He also filed an ex parte application for an order shortening time for the hearing on the motion. A July 6 minute order states that appellant's ex parte application for order shortening time was called, that he did not appear, that notice was not sufficient, and that the ex parte application was continued to July 11, to be heard with the final status conference. We have not been provided with a transcript of the hearing.

Appellant's request that we augment the record with the motion and its attachments is granted.

The declaration of counsel which accompanied respondent's opposition to appellant's July 6 ex parte application explains that counsel was served with the application on July 11, and that at the status conference on that date, the court gave respondent until July 16 to respond.

The July 11 minute order states that appellant had not filed trial documents and that the court had ordered him to file documents in accord with the court's Case Management Order by July 16, 2007, "or the court may impose sanctions including terminating sanctions." Respondent was ordered to lodge a corrected witness list and other documents, and the final status conference was continued to July 17. Once again, we have no transcript of the proceedings.

On July 13, appellant filed a request for a continuance of the trial date. On July 16, he filed a "no exhibit list" indicating that as a result of the order on matters deemed admitted, he had no exhibits. He also filed a witness list, listing eight witnesses and indicating that he had 14 additional witnesses whose names he did not yet know. Also on July 16, respondent served a supplemental exhibit list and witness list, pursuant to the July 11 order.

On July 17, the case was called for final status conference and on appellant's ex parte application for order shortening time. Appellant did not appear, and the court found that he had not filed trial documents pursuant to the earlier order. The court denied the ex parte motion, and, on respondent's oral motion, dismissed the case. We have not been provided with a transcript of the hearing.

On July 27, appellant moved for reconsideration of the July 17 ruling, citing sections 473 and 1008. In the motion, he wrote that respondent's Requests for Admission were ridiculous, that respondent's counsel had lied to the court, that respondent had failed to answer his Requests for Admission, that he was only 15 or 20 minutes late to the July 17 hearing and that he was late because traffic was unexpectedly heavy. His declaration, attached to the motion, discusses his service of papers in June and July (or his attempts to do so), the harassment he suffered in the workplace, and other irrelevant matters.

Respondent opposed the motion on a number of grounds. In an accompanying declaration, counsel declared that on July 17, the court waited 15 minutes for appellant and that a half-hour had elapsed by the time the hearing was completed, so that appellant's statement that he was only 15 or 20 minutes late was disingenuous. Counsel also wrote that the case was dismissed based on appellant's failure to prosecute and failure to appear.

The motion was heard on September 25, 2007. The court denied the motion but clarified that the July 17 dismissal was without prejudice. The written order of that ruling is dated October 4, and it is from the October 4 order that appeal was taken.

Appellant's contentions on appeal are that the court erred in March 2007, when it granted respondent's motion that matters be deemed admitted, erred when it denied his June 28, 2007 ex parte application for an order shortening time, and erred when it denied his July 27, 2007 motion for reconsideration of the order dismissing the case. We see no grounds for reversal.

Appellant's argument on the order deeming matters admitted is that as a matter of law, a motion for such an order may not be granted if answers are served prior to the hearing. Section 2033.280 does not so provide. Instead, under the statute, when a party fails to timely respond to requests for admission, "The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted . . . ." (§ 2033.280, subd. (b).) "The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220." (§ 2033.280, subd. (c).) Service of responses is not enough. The responses must be "as complete and straightforward as the information reasonably available to the responding party permits." (§ 2033.220, subd. (a).) We see no error in the trial court's finding that these responses did not comply. Responses which suggest that the propounding party should "work for the truth and not for [appellant's former supervisor Kirstin Stahl] or who ever wish you to lie," or that respondent's counsel should "see your doctor" are not in compliance.

Moreover, appellant's case was dismissed not because the court granted respondent's motion that matters be deemed admitted, but because he was not present for the July 17 final status conference, and did not comply with the court's Case Management Order. He has not provided us with a transcript (or other suitable substitute) of the July 17 hearing or the ones immediately preceding it, and thus has not demonstrated that the court erred on that date. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; In re Kathy P. (1979) 25 Cal.3d 91, 102.)

Appellant's July 27 motion for reconsideration of the dismissal was brought under sections 473 and 1008. A motion under section 1008 must be based on new or different facts, circumstances, or law. Appellant's motion included no showing of new or different facts, circumstances, or law. Nor did appellant make a showing under section 473. At best, it could be said that his motion raised inadvertence or excusable neglect with its contention that he arrived late at the hearing due to unexpected traffic. However, his declaration does not address the issue.

Given all of this, we need not further discuss the court's denial of appellant's motion for order shortening time on his June 28 motion for relief from the order deeming matters admitted. The denial of that motion had no effect on the outcome of this case. (Cal. Const., art. VI, § 13.)

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

We concur: TURNER, P. J., KRIEGLER, J.


Summaries of

Parvizian v. State

California Court of Appeals, Second District, Fifth Division
Sep 12, 2008
No. B203482 (Cal. Ct. App. Sep. 12, 2008)
Case details for

Parvizian v. State

Case Details

Full title:SYRUS PARVIZIAN, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al.…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Sep 12, 2008

Citations

No. B203482 (Cal. Ct. App. Sep. 12, 2008)