Case Number: SC120821    Hearing Date: April 28, 2014    Dept: P

TENTATIVE RULING – DEPT. P

APR. 28, 2014 CALENDAR No: 2

SC120821 — DE SAIA v. DESAI

PLAINTIFF DI SAIA’S MOTION TO AMEND RESPONSE TO REQUEST FOR ADMISSION No. 49

Evidentiary matters

All twelve of Plaintiff Di Saia’s evidentiary objections are sustained.

Counsel should note that the Court’s ruling would remain the same even if it admitted into evidence all of the evidence offered in opposition to the motion.

Merits

In her response to Defendants’ RFA 49, Plaintiff Di Saia admitted that the proposed home will not obstruct the views from her property. That admission directly contradicts the allegation in para. 17 of the SAC that the proposed home will “unreasonably obstruct the view from each of the Plaintiffs’ lots…” Di Saia asserts that the phrase “admit” should have read “deny” but did not do so, as a result of an editing error, and seeks leave to amend the response to change it to “Deny.”

Pursuant to CCP 2033.300, the court may permit a party to amend or withdraw an admission made in response to a RFA if it determines that the admission was the result of mistake, inadvertence or excusable neglect and the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.

The Court concludes that Plaintiff Di Saia has easily satisfied those standards here. Notably, her responses to RFA No. 48 and SROG 2 (drafted by former counsel) are consistent with a denial of RFA 49. Indeed, the Court questions why – and the manner in which – Defendants opposed the motion. In this regard, Defendants should note that ocean views are not necessarily the only views enjoyed by property with ocean views – views of greenery, mountains, and the like are also enjoyed by many of these properties.

Motion is granted. On or before May 6, 2014 Plaintiff Di Saia’s may serve a verified, amended response to RFA No. 49 changing here response from “Admit” to “Deny.” She is to concurrently serve a verified amended response to Form Interrogatory No. 17.1 with regard to RFA No. 49.

DEFENDANT NEAL DESAI’S MOTION TO COMPEL PLAINTIFF PETER ZOMBER TO RESPOND TO REQUESTS FOR ADMISSION

Defendant did not file a reply brief – nor did he take the motion off-calendar. As a result, the Court is left to guess as to whether Defendant intends to proceed with the motion, notwithstanding that Plaintiff has now served further responses to the subject RFAs.

This morning Defendant is to state whether he intends to go forward with the motion – and, if so, the basis and why he did not file a reply brief.

CASE MANAGEMENT CONFERENCE

FSC: __________________

Trial: __________________
Time estimate: __________days

OTHER MATTERS

The Court notes that Defendant Neal Desai’s “Motion to Compel Plaintiff Peter Zomber to Respond to Requests for Admission” is mis-captioned. The motion is one to compel further responses. That is a distinction with a difference for purposes of reserving a motion on the Court’s busy law and motion calendar. Counsel must properly disclose the motion at the time of reservation; failure to do so may result in a continuance to the next available date, which by the date of the hearing on a mis- described motion could be at a remote date in the future due to the continuing contracted state of the direct calendar courts.

The Court expects all counsel and their clients to comply with the discovery provisions of the Code without the need for Court intervention; intervention should be reserved for matters which mutual good faith efforts cannot resolve. Counsel are now ordered to comply with Local Rule 3.26 and Appendix 3A [formerly Rule 7.12], which by this order is now made mandatory in this action.

The unfortunate neighbor-versus-neighbor dispute underlying this action suggest that the respective parties are not likely to achieve satisfaction on any level by litigating this action. Counsel are encouraged to make their clients keenly aware of this reality – and to facilitate a full settlement of the action.