Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC425693 Bernard Schwartz, Judge.
Law Offices of Sunil Shah and Sunil Shah for Defendants, Cross-Complainants and Appellants.
Law Offices of Robert J. Danko and Robert J. Danko for Plaintiff, Cross-defendant and Respondent.
OPINION
Gaut J.
Defendants Pashtoon Subat and Nahid Subat (defendants) appeal from an award of summary judgment founded on deemed admissions. Defendants also appeal an order denying defendants’ motion to withdraw deemed admissions and motions for reconsideration. We reverse, concluding the trial court abused its discretion in denying defendants relief from deemed admissions. In turn, summary judgment must be reversed because it is founded on the deemed admissions which should have been withdrawn.
Defendants’ motions for reconsideration of the orders denying withdrawal of admissions and granting summary judgment are moot due to this court reversing the trial court’s order denying withdrawal of defendants’ admissions.
1. Factual and Procedural Background
This matter arises over a dispute between relatives over the sale to plaintiff Tamim Rostai (plaintiff) of defendants’ 50 percent interest in property located in Corona. Defendants are plaintiff’s aunt and uncle.
In August 1989, plaintiff and his brother, Jabeir Rostai purchased the property in question. In November 1989, the Rostai brothers transferred a 50 percent interest in the property to defendants. In April 1991, Jabeir conveyed his 25 percent interest in the property to plaintiff. In April 2001, defendant Nahid Subat, a real estate agent, executed a written sales agreement stating that she and her husband, defendant Pashtoon Subat, agreed to sell their 50 percent interest in the property to plaintiff for $25,000. The agreement further acknowledged receipt of $25,000 from plaintiff. Pashtoon did not sign the agreement.
After executing the sales agreement and paying defendants for their interest in the property, plaintiff repeatedly requested defendants to provide a quitclaim deed necessary to convey their interest in the property to plaintiff. After several years, plaintiff filed a complaint in February 2005, and later an amended complaint (complaint) against defendants alleging (1) breach of contract, (2) specific performance, (3) breach of fiduciary duty, (4) fraud, and (5) good faith improver.
In June 2005, plaintiff served defendants with discovery requests, including requests for admission (RFAs). The responses were due on July 13, 2005.
On November 16, 2005, plaintiff requested defendants to provide responses to all outstanding discovery. During a status conference hearing on December 16, 2005, defense counsel stated that discovery responses would be delivered by January 13, 2006.
Due to plaintiff’s attorney not receiving defendants’ discovery responses, including responses to the RFAs, on January 20, 2006, plaintiff filed a motion to deem the RFAs admitted and compel discovery responses to the interrogatories and production requests.
On February 22, 2006, the trial court heard plaintiff’s motion to compel defendants’ discovery responses and deem the RFAs admitted. Because defendants’ attorney assumed plaintiff’s attorney had received defendants’ responses and had taken the motion off calendar, neither defendants nor their attorney appeared at the hearing. The court granted plaintiff’s discovery motions, deemed admitted the RFAs, and awarded sanctions against defendants. Notice of the rulings was served on defendants by mail on February 22, 2006.
On April 3, 2006, defendants’ discovery responses, including defendants’ RFA responses and verifications dated January 18, 2006, and March 30, 2006, were hand delivered to plaintiff’s attorney’s office.
In a cover letter dated April 3, 2006, provided with the discovery responses, defendants’ attorney, Sunil Shah (Shah) stated that the discovery responses had previously been served and therefore the RFAs should not have been deemed admitted. Shah requested plaintiff to stipulate to waiving deemed RFA admissions. Shah said that if plaintiff did not do so within two days, defendants would bring a motion to withdraw the admissions. Shah, however, did not file the motion until over a year later, on June 4, 2007, after plaintiff had filed a motion for summary judgment founded on the deemed admissions.
On December 20, 2006, plaintiff filed and served by mail and by personal service a motion for summary judgment, which was based on defendants’ deemed admissions. The motion was originally set for March 14, 2007, but was continued several times and ultimately was heard and decided on June 22, 2007.
On June 22, 2007, the trial court denied defendants’ motion to withdraw deemed admissions on the grounds defendants unreasonably delayed bringing their motion and their RFA responses were inadequate because they used the word “no,” instead of the word “deny.” Based on defendants’ deemed admissions, the trial court granted plaintiff’s motion for summary judgment.
Defendants filed motions for reconsideration of their motion to withdraw deemed admissions and plaintiff’s summary judgment motion. Defendants argued in their motion for reconsideration of their motion to withdraw deemed admissions that Shah discovered that plaintiff’s attorney, Robert Danko (Danko), did not have an actual office at the location used for his mailing address (the Temecula office). He rented a conference room at the Temecula office building for depositions and arranged for his mail to be forwarded to him from the Temecula office. Defendants argued that this may have been why plaintiff’s attorney did not receive defendants’ RFA responses served on January 18, 2006.
Plaintiff filed opposition to defendants’ motions for reconsideration. Danko stated in his supporting declaration that, while his actual office was in Newport Beach, he maintained an office address at the Temecula office building and arranged for his mail to be forwarded to him. Danko believed he had received all his mail sent there. The trial court denied defendants’ motions for reconsideration. Defendants filed a motion for new trial, which the trial court also denied.
2. Denial of Defendants’ Motion to Withdraw RFA Admissions
Defendants contend the trial court abused its discretion in denying their motion to withdraw their deemed admissions.
A. Defendants’ Motion
Defendants delayed filing their motion to withdraw deemed admissions until June 4, 2007, 15 months after the trial court deemed defendants’ RFAs admitted. Supporting declarations were provided by defendants’ attorney, Shah, his office manager, Urvi Shah, and defendants. Copies of defendant Nahid Subat’s RFA responses, along with verifications dated January 18, 2006, and March 30, 2006, and a proof of service dated January 18, 2006, were attached to defendants’ motion to withdraw admissions. The responses consisted of “yes” and “no” responses. There are no RFA responses or verifications by Pashtoon Subat attached to defendants’ motion. However, both defendants’ RFA responses and verifications were attached to defendants’ motion for new trial.
Shah’s Declaration
Shah stated in his declaration that plaintiff’s attorney, Danko, granted several extensions to respond to plaintiff’s discovery. On January 16, 2006, Shah told Danko defendants’ responses would be forwarded to him immediately. Shah served them by mail on January 18, 2006.
Shah further stated in his declaration that on January 25, 2006, he received plaintiff’s motion to compel discovery. Danko told him that upon receipt of defendants’ discovery responses, he would take the discovery motions off calendar. Therefore Shah did not appear at the hearing on the motion on February 22, 2006, assuming that Danko had received the responses and the motion had been taken off calendar.
Due to a family emergency, Shah was in Chicago from February 28, 2006, to March 30, 2006. Upon returning to his office, he discovered that plaintiff’s discovery motion was not taken off calendar and had been granted. On March 31, 2006, Shah faxed Danko a letter stating that copies of defendants’ responses would be delivered to Danko along with a check for sanctions by April 3, 2006. The responses and check were hand delivered on April 3, 2006, along with a cover letter requesting plaintiff to waive the deemed admissions because defendants served their responses before the motion was heard. Shah again requested the deemed admissions waived in July 2006. Finally, in December 2006, Danko told Shah that plaintiff would not agree to stipulate to withdraw the deemed admissions.
Urvi Shah’s Declaration
Shah’s office manager, Urvi Shah, stated in her supporting declaration that she mailed defendants’ RFA responses to Danko on January 18, 2006. She also signed the proof of service form dated January 18, 2006, attached as an exhibit to her declaration.
Defendants’ Declarations
Defendants’ supporting declarations state that they signed RFA response verifications on “January 18, 2007” and “March 30, 2006.” Pashtoon Subat further stated in his declaration that on April 3, 2006, he personally delivered to Danko’s office defendants’ verified responses.
This date appears to be a typographical error. The date should be January 18, 2006.
Shah stated in his declaration that on April 3, 2006, he hand delivered the discovery responses.
Opposition
On June 8, 2007, plaintiff filed opposition to defendants’ motion to withdraw deemed admissions. Danko stated that Shah’s supporting declaration contained numerous inaccuracies. It was false that Danko had said he would take plaintiff’s discovery motions off calendar upon receipt of defendants’ discovery responses.
Danko further stated in his declaration that he did not receive defendants’ discovery responses until April 3, 2006, and Shah did not inform Danko of any reasons for defendants failing to provide timely responses. He also stated that on March 28, 2006, he wrote to Shah, stating that plaintiff would file a motion for terminating sanctions if defendants failed to provide their overdue discovery responses and pay court ordered sanctions by March 31, 2006. Shah promised to provide defendants’ discovery responses by April 3, 2006, and they were ultimately delivered on April 3, 2006, along with a letter threatening to file a motion for relief from the deemed admissions if plaintiff refused to stipulate to waiving the deemed admissions.
On July 26, 2006, Shah again threatened to file a motion to withdraw the deemed admissions if plaintiff did not agree to waive the admissions. In response, Danko sent Shah a letter dated July 27, 2006, stating plaintiff was opposed to waiving the deemed admissions because defendants had not cooperated in discovery and had not appeared for their noticed depositions. Nevertheless Danko suggested Shah provide a factual as well as legal basis for the requested relief and Danko would present his position to plaintiff for consideration. Danko denied that he or plaintiff ever agreed to set aside the deemed admissions.
Plaintiff opposed defendants’ motion to withdraw the deemed admissions on the ground defendants delayed 15 months bringing their motion to withdraw deemed admissions and defendants’ attorney’s conduct was below the professional standard of care and thus constituted inexcusable neglect. Plaintiff also argued that granting defendants’ motion would be prejudicial because withdrawal of the admissions would undermine the basis for plaintiff’s summary judgment motion.
Defendants’ Reply
On June 13, 2007, defendants filed a reply to plaintiff’s opposition reiterating that they served responses to plaintiff’s RFAs on January 18, 2006, and again on April 3, 2006.
Hearing on Motion to Withdraw Deemed Admissions
During the hearing on defendants’ motion to set aside the deemed admissions, heard on June 22, 2007, the trial court concluded there was no prejudice in granting defendants’ motion to set aside defendants’ admissions, but denied the motion on the ground defendants had failed to establish mistake, inadvertence, or excusable neglect. The trial court noted that defendants waited 15 months to bring their motion. The trial court also stated that defendants’ RFA responses were not verified.
Defendants’ attorney responded that defendants’ RFA responses were verified. There were two verifications, one on January 18, 2006, when the responses were initially served and a second verification on March 30, 2006, when defense counsel again served the responses, this time personally, on April 3, 2006. Defense counsel further argued that plaintiff’s attorney told him not to provide defendants’ responses until various depositions were taken. In addition, defendants’ attorney believed defendants’ responses were properly served on January 18. Defense counsel argued that, if he was mistaken in assuming this and in not opposing plaintiff’s motion, this was his fault and defendants should not be held accountable for his mistake.
During the motion hearing, plaintiff’s attorney, Danko, argued that he did not receive the verifications and responses until April 2006, and this was too late. The RFAs had already been deemed admitted.
The trial court found that defendants failed to establish mistake by their attorney and the delay in attempting to withdraw the admissions was inexcusable. The trial court stated that it was denying defendants’ motion to withdraw deemed admissions because there was “an absence of action on the part of the defendants.” Defendants did not show up at their depositions numerous times and delayed providing discovery responses. They ignored the discovery process. In addition, defendants’ responses failed to admit or deny the RFAs. The responses merely said, “no.”
After the trial court denied defendants’ motion to withdraw the deemed admissions, it granted summary judgment based on the deemed admissions.
B. Applicable Law
Defendants argue the trial court abused its discretion in denying their motion to withdraw deemed admissions because the responses were served by mail on January 18, 2006, before the hearing on plaintiff’s motion to deem them admitted. Defendants’ attorney therefore believed the motion had been taken off calendar and did not oppose the motion.
“Requests for admissions differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof.” (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) “Parties often propound requests for admission covering the ultimate facts of the case that, if admitted, are outcome determinative. The propounding party who gets ‘lucky’ and receives no response then notices a motion for a deemed admitted order that, at a minimum, results in the award of monetary sanctions. If the propounding party does not receive a response by the hearing, then under Courtesy Claims [Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52] and St. Paul [Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843], he ‘hits the jackpot’ and ‘wins’ an irrevocable deemed admitted order disposing of the lawsuit. By permitting relief under [former Civil Code of Procedure section 2033,] subdivision (m), we eliminate such undeserved windfalls and the resulting subversion of the policy favoring the resolution of lawsuits on the merits. [Citation.]” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 982-983.)
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
Section 2033.300, replacing former section 2033, subdivision (m), provides in pertinent part: “(a) 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. [¶] (b) 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.”
Thus, a party is entitled to withdraw or amend deemed admissions pursuant to former section 2033.330 only if it finds both that there was “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.” (§ 2033.300, subd. (b); see also Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 975.) Lack of prejudice does not by itself justify relief from admissions. (Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, 660.)
We apply the abuse of discretion standard in reviewing the trial court’s ruling denying defendants’ motion to withdraw deemed admissions. (2,022 Ranch, L.L.C. v. Superior Court (2003) 113 Cal.App.4th 1377, 1387.)
Cases considering what constitutes “mistake, inadvertence or excusable neglect” under former section 2033, subdivision (m), recognized that a motion for withdrawal of admissions under that section (now section 2033.300) is governed by substantially the same standard governing relief under section 473, subdivision (b). (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107 [“the Legislature intended to incorporate the principles of section 473 into those provisions of the discovery act which employ similar language”]; see also Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, 236-237 (Elston) [in applying 1978 amendments to former section 2033, section 473 should be applied liberally in affording relief from deemed admissions].)
“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations, ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Elston, supra, 38 Cal.3d at p. 233, fn. omitted.)
“Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court’s exercise of discretion. [Citation.] Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation]. Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. [Citations.]” (Elston, supra, 38 Cal.3d at p. 235.)
Although a section 2033.330 motion for withdrawal of admissions is governed by substantially the same standards applied to a section 473 motion, unlike a section 473 motion, a section 2033.330 motion does not state any time limitation for bringing a motion to withdraw, not even a requirement that the motion be brought within a reasonable time. Section 2033.330 does not incorporate the six-month limitation on relief or state that the motion must be brought within a reasonable time, as provided in section 473.
Rather, section 2033.330, subdivision (b) merely requires that in order for relief to be granted there be no substantial prejudice in granting the motion and the admissions were admitted due to mistake, inadvertence, or excusable neglect. Thus, the only time restriction is that the motion must be brought before the party who obtained the admissions is “substantially prejudiced” by withdrawal of the admissions. Of course, normally, the longer the delay in seeking relief, the greater the likelihood of prejudice.
C. Analysis
The key issue here is whether defendants’ 15-month delay in bringing their motion to withdraw admissions is sufficient grounds for denying defendants’ motion. We conclude it is not, particularly since defendants established they served verified responses before the court heard plaintiff’s motion to deem the RFAs admitted.
The trial court is required to order RFAs deemed admitted upon motion by the propounding party, if timely responses have not been provided, unless proper RFA responses are served before the motion hearing. (§ 2033.280, subds. (b) & (c).) Section 2033.280, subdivision (c) provides: “(c) 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.” (Italics added.)
Here, defendants’ attorney, Shah, provided declarations by his office manager, himself, and defendants showing that defendants’ verified RFA responses were served by mail on January 18, 2006, and were thus served before the motion hearing on February 22, 2006. The RFA responses therefore should not have been deemed admitted under section 2033.280. There is evidence the motion was not taken off calendar because Danko did not receive the responses for some unknown reason. Not knowing this, Shah assumed Danko received the responses and the motion was taken off calendar. Shah therefore did not appear at the hearing or file opposition.
Plaintiff’s attorney claims he never received any verified responses until April 3, 2006. However, mailed service is complete at the time of deposit in the mail and receipt is presumed. (Code Civ. Proc., § 1013, subd. (a); Evid. Code, § 641.) Whether the presumption of receipt has been rebutted is a question of fact to be resolved in the trial court. (See, e.g., Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011.) The sender (defendants) does not have the burden of showing that the notice was actually received by the addressee, and a claim that the RFA responses were never received is insufficient to rebut the presumption on appeal. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 [the court rejected the plaintiff’s contention that notice mailed by the defendant was never received, finding service complete at the time the endorsed judgment was deposited in the mail.)
Here, there was insufficient evidence rebutting the presumption of receipt of the responses. Furthermore, rather than finding defendants did not actually serve their verified RFA responses on January 18, 2006, the trial court denied defendants’ motion on the grounds defendants’ responses were defective and because of defendants’ lengthy delay in bringing their motion to withdraw the deemed admissions. As discussed above, delay in bringing a motion to withdraw admissions alone is not a valid basis for denying relief when there is no prejudice, since section 2033.330 does not provide any time limitation for bringing such a motion or any requirement it be brought within a reasonable time.
Under section 2033.300, subdivision (b), the court may grant withdrawal of deemed admissions upon finding the admissions were a result of mistake, inadvertence, or excusable neglect. There is no reference in the statute to mistake, inadvertence, or excusable neglect in delaying bringing a motion for withdrawing the admissions. Any delay in bringing such a motion is addressed in determining whether there is any prejudice in withdrawing the admissions. Here, the trial court acknowledged there was no prejudice in granting defendants’ motion to withdraw admissions. There was no showing of any such prejudice. Thus, the only issue in the instant case is whether the trial court abused its discretion in finding defendants failed to establish their admissions were due to mistake, inadvertence, or excusable neglect.
The relevant evidence would thus be limited to the facts and circumstances leading to the court deeming the RFAs admitted on February 20, 2006. There is little, if any, showing that defendants, as opposed to their attorney, were at fault for the delay in providing RFA responses and filing defendants’ motion for relief. For neglect to be excusable, it “must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.) As to defendants’ attorney, he established excusable neglect by showing the RFA responses were served on January 18, 2006, and the RFAs were nevertheless deemed admitted because plaintiff’s attorney did not receive them before the motion hearing, unbeknownst to defense counsel, and therefore the motion was not taken off calendar and defense counsel did not appear at the motion hearing to oppose the motion.
Defense counsel admitted in his declaration supporting the motion to withdraw deemed admissions that he made the mistake of assuming plaintiff would take his motion deeming RFAs admitted off calendar upon receipt of defendants’ RFA responses because he believed the RFAs had been properly served on January 18, 2006. Defense counsel urged the court not to punish his clients for his own mistakes since his clients were not at fault.
Denial of the motion for relief is contrary to the public policy that disfavors reliance upon procedural defaults. Because the law favors trials on their merits, any doubts as to whether the statutory standards have been met should be resolved in favor of the application for relief. (Elston, supra, 38 Cal.3d at p. 235.) Here there was substantial evidence supporting a finding of mistake, inadvertence or excusable neglect, particularly as to defendants. Since there was no showing of prejudice in withdrawing the deemed admissions, we conclude the trial court abused its discretion in denying defendants’ motion to withdraw the deemed admissions.
We understand the trial court’s frustration with defendants’ attorney’s delay in litigating the case and defendants’ repeated failure to provide timely discovery responses. Nevertheless, we conclude it was inappropriate to deny defendants’ request to withdraw the deemed admissions when there was evidence that defendants’ verified RFA responses were served before the hearing on plaintiff’s motion to deem the RFAs admitted. We conclude defendants’ lengthy delay in bringing their motion to withdraw deemed admissions alone is not a sufficient ground for denying defendants’ motion since there was no prejudice in granting relief.
The only ground the trial court relied on in denying defendants’ motion to withdraw admissions, other than the delay in bringing their motion, was that defendants’ responses were deficient because defendants’ responses stated “no,” instead of “deny.”
Defendants argue that the word “no,” instead of “deny” or “denied” does not constitute an improper response because “no” is the equivalent of “deny.” Defendants request this court to take judicial notice of the dictionary definition of the word, “deny,” stated in The Oxford English Dictionary. The definition states in part: “To say ‘no’ to a statement, assertion, doctrine . . . to declare to be untrue or untenable, or not what it is stated to be.” Defendants’ request is granted pursuant to Evidence Code sections 451, subdivision (e) (mandatory judicial notice of the signification of English words) and 452, subdivision (h).
Defendants do not provide the date of publication or edition number.
Defendants’ RFA responses consisted of “no” to each of the requests to admit certain facts, with the exception of one RFA, in which defendants responded “yes” to a request to admit a fact.
Section 2033.220 requires that “(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue.” It is sufficiently clear from defendants’ responses that their “no” responses were denials of the RFAs and their “yes” response was an admission.
As to the trial court’s initial comment during the hearing on defendants’ motion, that defendants’ responses were defective because they were unverified, the record establishes this was incorrect. Attached to the responses were verifications dated January 18, 2006, and March 30, 2006.
The trial court thus abused its discretion in denying defendants’ motion to withdraw the deemed admissions on the grounds defendants’ RFA responses were unverified and consisted of inadequate responses because they stated “no,” instead of “deny”. Defendants established that they their responses were verified and served on January 18, 2006, and defendants’ responses were substantially in compliance with section 2033.220. (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827, disapproved on other grounds in Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 983.)
Accordingly, we reverse the trial court’s ruling denying defendants’ motion to withdraw deemed admissions. Pursuant to the policy favoring trials on the merits and a liberal application of the standard for relief under section 2033.300, the trial court abused its discretion in denying defendants’ motion for relief on the grounds defendants delayed over a year in bringing their motion and their RFA responses were deficient.
3. Disposition
The June 22, 2007 order denying defendants’ motion to withdraw deemed admissions is reversed. The trial court is directed to grant defendants’ motion to withdraw deemed admissions subject to such conditions as may be just under section 2033.300. Because plaintiff’s motion for summary judgment is founded on defendants’
deemed admissions, summary judgment is also reversed. The parties are to bear their own costs on appeal.
We concur: Hollenhorst Acting P. J., King J.