TENTATIVE RULING:

The court GRANTS defendant Renny Bowden’s motion to withdraw deemed admissions.

(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.

See Code Civ. Proc. §2033.300. This identical language under the previous Section 2033 was adjudged by the California Supreme Court to encompass admissions resulting from the granting of a motion to deem RFA’s admitted. See Wilcox v. Birtwhistle, 21 Cal.4th 973, 978 (1999).

Mistake, Inadvertence, or Excusable Neglect

The statutory language “mistake, inadvertence, or excusable neglect” (§ 2033.300, subd. (b)) is identical to some of the language used in section 473, subdivision (b). Section 473, subdivision (b) states that a court may “relieve a party … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The use of identical terms in two different statutes serving similar purposes suggests that the Legislature intended those terms to have the same meaning in both statutes. (See Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, 211 Cal.Rptr. 416, 695 P.2d 713 ( Elston ).) Moreover, the legislative history of section 2033, subdivision (m), the predecessor of section 2033.300, suggests that the Legislature intended “mistake, inadvertence, or excusable neglect” to have the same meaning in the statute as those terms have in section 473, subdivision (b).

New Albertsons, Inc. v. Sup. Ct., 168 Cal.App.4th 1603, 1418-1419 (2008).

If the mistake, inadvertence, or neglect is on the part of the party’s attorney, the party must demonstrate that such neglect was excusable, because the negligence of the attorney is ordinarily imputed to the client. See Generale Bank Nederland v. Eyes of the Beholder Ltd., 61 Cal.App.4th 1384, 1399 (1998).

“In determining whether the attorney’s mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ [citation omitted] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [citation omitted] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’” Toho-Tawa Co., Ltd. v. Morgan Creek Productions, Inc., 217 Cal.App.4th 1096, 1112 (2013).

The declarations here indicate that defendant’s former counsel, Mr. Nowacki, was unaware that plaintiff had served discovery or had brought a motion to deem RFA’s admitted until after said motion had been granted. (See Nowacki Decl., ¶6.) After discovering the existence of the discovery and the motion on 02/07/14, Mr. Nowacki made an investigation at his office and discovered that the discovery and motion had been mis-filed by his staff. (Id., ¶¶8-9.) Mr. Nowacki had a procedure in place to handle incoming mail. (Id., ¶10a.) However, because he was experiencing a family emergency between November 2013 and January 2014, he was unable to meet with his office staff as often as he usually would have. (Id., ¶10b.) These circumstances indicate excusable neglect.

Also, plaintiff’s counsel’s declaration does not state that he attempted to meet and confer with defendant prior to bringing his motion. While such a meet and confer is not essential for a motion to compel when responses have not been received, in this case, it appears that such an attempt to meet and confer would likely have helped the parties and the court avoid the present situation. Plaintiff’s counsel avers that the first time that he directly brought the discovery or motions to Mr. Nowacki’s attention was after the 02/05/14 hearing. (Burke Decl., ¶8.) Counsel contends that a declaration filed in opposition to defendant’s motion to transfer venue included a sentence about the discovery. However, this cannot be construed as effective notice to his adversary that discovery was outstanding.

Moreover, “excepted from the rule [requiring excusable neglect] are those instances where the attorney’s neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. [Citations omitted.] The exception is premised upon the concept the attorney’s conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client.” Carroll v. Abbott Laboratories, Inc., 32 Cal.3d 892, 898 (1982). Here, the court ruled on the previous motion to vacate the 02/05/14 order that Mr. Nowacki, through his assistant, engaged in positive misconduct which ended the attorney-client relationship.

Plaintiff’s counsel makes much of the fact that Mr. Nowacki has refused to identify the assistant responsible for the mis-filing. But Mr. Nowacki is under no obligation to identify this individual. In any event, his declaration indicates that the assistant has since left his employ, and thus would not likely be available to provide a declaration.

Prejudice to Plaintiff

There appears to be no prejudice to plaintiff from the granting of this motion and the withdrawal of the admissions. As defendant points out, his motion was made within a short time after the order was entered deeming the RFA’s admitted. Trial is not scheduled to commence until 02/02/15. There is plenty of time for the parties to conduct the necessary discovery. Plaintiff, for his part, makes no showing of prejudice, and does not even address the issue in his opposition.

The motion is granted, and the admissions are withdrawn. Defendant must serve his verified responses to the RFA’s within 10 days.

Moving party to give notice.