Case Number: BC595045 Hearing Date: March 12, 2018 Dept: 92

DEIR ANDRADE, an Individual,

Plaintiff,

vs.

SAFEWAY, INC., et al.

Defendants.

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Case No.: BC595045

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF ROM ORDER DEEMING ADMISSIONS ADMITTED AND FROM ORDER GRANTING JUDGMENT ON THE PLEADINGS

Dept. 92

1:30 p.m.

March 12, 2018

Plaintiff Deir Andrade’s Motion for Relief from Order Deeming Admissions Admitted and from Order Granting Judgment on the Pleadings is DENIED.

Plaintiff Deir Andrade brought suit on September 18, 2015. On June 07, 2017, Defendants Safeway, Inc., and Vons Division Pavilions filed a motion to have requests for admissions deemed admitted. On August 1, 2017, the Court granted the motion. On September 27, 2017, in large part based on the admissions, Defendants moved for judgment on the pleadings. The motion originally came on for hearing on November 30, 2017, but was continued to Plaintiff’s request, in order to allow Plaintiff additional time to secure new counsel. On January 30, 2018, the Court granted the motion for judgment on the pleadings.

On February 6, 2018, Plaintiff filed the instant motion. She seeks relief from the order deeming admissions admitted and, by extension, the order granting the motion for judgment on the pleadings. Plaintiff, who is now in pro per, argues her then-counsel completed and mailed her responses to the request for admissions on August 1, 2017, the day of the hearing and thus too late to stop the Court from granting the motion. Plaintiff argues the Court should not hold Plaintiff responsible for her counsel’s mistakes.

Plaintiff’s description of events reveals only a small portion of recent proceedings in this case. Defendant originally served requests for admission on March 22, 2017. (Sarkesians Decl. ¶ 3.) Court records confirm that at the time, Plaintiff was in pro per, and Defendant’s proof of service, filed in support of the motion to deem admissions admitted, confirms that the discovery was served on Plaintiff directly. Having received no responses, Defendant filed the motion to deem requests admitted on June 7, 2017, and again served the motion on Plaintiff directly. (Sarkesians Decl. ¶ 6.) Plaintiff has never explained why she did not provide responses prior to that motion being brought.

Nor did Plaintiff ever file an opposition to the motion to deem admissions admitted. Instead, on July 31, 2017, only one day before the hearing on the motion, Plaintiff for the first time hired counsel, with Nora Hovsepian substituting into the case that day. Plaintiff blames Hovsepian for not mailing her admission responses until August 1, 2017, but fails to mention that Hovsepian did not represent Plaintiff until July 31, 2017.

Notably, although Plaintiff was represented by counsel at this time, Defendants served notice of the order granting the request directly on Plaintiff, thereby confirming that she was aware of the notice within a few days of the order being issued.

On August 28, 2017, Hovsepian moved to be relieved as counsel. The Court granted the order on September 26, 2017.

On September 27, 2017, Defendant filed the motion for judgment on the pleadings. The motion was served directly on Plaintiff. Plaintiff filed an “objection” to the motion on November 13, 2017, indicating she needed to hire a new attorney. On November 30, 2017, the Court granted Plaintiff a continuance to obtain a new attorney. Plaintiff never did so, and the motion was granted January 30, 2017.

CCP § 473(b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Here, as an initial matter, Plaintiff’s motion is untimely. The order deeming admissions admitted was issued on August 1, 2017. Six months after that date would be February 1, 2018. Plaintiff did not file the instant motion until February 6, 2018. Moreover, even if Plaintiff had not gone beyond the six month limit, the standard is actually a “reasonable time” within six months. Courts have held that an unexplained delay of seven weeks (Younessi v. Woolf (2016) 244 Cal.App.4th 1137), two months (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606), three months (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523), or five months (Kendall v. Barker (1988) 197 Cal.App.3d 619) may be unreasonable. Here, Plaintiff has known about the order since August, and has provided no explanation as to why she waited so long to seek relief.

Moreover, Plaintiff has not shown that the order was issued due to her excusable neglect, mistake, inadvertence, or surprise. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [clarifying that the word “excusable” applies to each of the other words in the phrase, not only to the word “neglect”].) Plaintiff provides no explanation as to why she did not either timely respond to the discovery before the motion was filed, or timely respond to discovery before the hearing on the motion. Plaintiff attempts to blame her counsel, but her counsel was not hired until the day of the hearing. Plaintiff had more than four months to provide responses, and never did so.

Accordingly, Plaintiff has not shown good cause to support the relief sought. Plaintiff’s motion is DENIED.

Moving party to provide notice.

Dated this 12th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court