Case Number: BC679792 Hearing Date: June 04, 2019 Dept: 2

Motion by Defendant, Estate of Edward Habib (Doe 1), for Reconsideration of the Court’s Ruling of May 2, 2019 Regarding Requests for Admission Deemed Admitted as to the Estate of Edward Habib, filed on 5/10/19 is GRANTED in part and DENIED in part as set forth below.

Defendant did not give 16 court days of notice increased by five calendar days for service by mail. Cal. Code Civil Procedure § 1005(b). Defendant was required to serve the motion by 5/6/19 but served the motion on 5/10/19.

However, under certain circumstances, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice. Carlton v. Quint (2000) 77 Cal. App. 4th 690.

A showing of prejudice arising from defective notice is required. Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1289.

The purpose of the notice period is to allow the other party to file an opposition. If an opposition is filed and no prejudice is shown, then the purpose of the notice requirements is met. The defect is waived. Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 342-343.

Plaintiff has not shown substantial prejudice resulting from shortened notice. Plaintiff has submitted a timely opposition which the court has considered.

Neither Cal. Code Civil Procedure § 473, nor Cal. Code Civil Procedure § 1008 governs the relief requested by the Defendant. Relief from deemed admitted responses is governed by Section 2033.300. St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852.

However, Section 2033.300 is similar to Section 473 in that the court can permit relief from deemed admitted responses “only if it finds that the admissions were the result of mistake, inadvertence, surprise or excusable neglect, and the requesting party will not suffer prejudice as a result of the amendment.” Cal Code Civil Procedure § 2033.300(b).

The use of identical terms in the two different statutes suggests that the terms have the same meaning in both statutes. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.

Since the law favors trial and disposition on the merits, any doubts in applying that section are resolved in favor of the party seeking relief. New Albertsons at 1419.

Additionally, permitting relief must not “substantially prejudice” the party who obtained the admission in maintaining that party’s action on the merits. Id at 1418.

The statute’s provisions allowing for relief “eliminates undeserved windfalls obtained through requests for admission and furthers the policy favoring the resolution of lawsuits on the merits. Id.

Defense counsel has shown that the deemed admitted order was the result of counsel’s mistaken belief that responses could not be deemed admitted against a dead person. Declaration of John Paul Fuchs, ¶ 3.

A “mistake” exists “when a person, under some erroneous conviction of law or fact, does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence.” Salazar v. Steelman (1937) 22 Cal. App. 2d 402, 410.

Plaintiff has not shown he will suffer “substantial prejudice” in maintaining his action if the requested relief is granted. Therefore, the motion for reconsideration is GRANTED as to the Defendant’s Admissions being admitted.

Defendant’s motion for reconsideration of the order of sanctions is DENIED. Defendant’s failure to serve timely responses to the Request for Admissions necessitated the filing of Plaintiff’s Motion to Deem the Admissions Admitted. Sanctions are imposed against Defendant Estate of Edward Habib, Deceased, and Defendant’s counsel of record, John Paul Fuchs, Esq., in the amount of $497.50, for failure to respond to a discovery request without substantial justification. (Cal. Code Civil Procedure § 2033.280) Such sanctions are now payable within ten (10) days.

Defendant is ordered to give notice of this ruling.