2017-00210082-CU-BC

Wells Fargo Bank National Association vs. The Kearns Co., In

Nature of Proceeding: Motion to Set Aside a Portion of the Court’s 12/8/17 Order

Filed By: Banks, James J.

Defendants’ motion to set aside this court’s 12/8/2017 order deeming matters admitted and compelling their responses, without objections, to plaintiff’s form and special

interrogatories and to requests for production of documents is GRANTED, as follows.

Defendants’ notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

By this action plaintiff bank seeks to enforce written guaranty agreements. Plaintiff previously propounded a variety of discovery on defendants and when they failed to respond, plaintiff moved for an order deeming matters admitted and compelling defendants’ responses to interrogatories and requests for production of documents. Despite the significance of this motion, no opposition to this motion was filed by defendants who were at the time represented by counsel. Accordingly, this court granted plaintiff’s unopposed motion on 12/8/2017. A short while later, defendants’ counsel disclosed to his clients that he had neither responded to plaintiff’s discovery nor opposed plaintiff’s motion. As a result, defendants have sought and retained new counsel who now moves for relief from the 12/8/2017 order especially in light of plaintiff’s filing of a motion for summary judgment/adjudication which is now set for hearing on 4/19/2018.

Although plaintiff opposes the present motion, the court finds that relief is warranted under the egregious circumstances here. Defendants’ original counsel’s acts and omissions amounted to a “total failure” of the latter’s representation of his clients and effectively destroyed the attorney-client relationship so that counsel’s conduct is not properly or fairly attributable to defendants. This is particularly true since the order deeming admissions amount is for all practical purposes tantamount to a default judgment against defendants who reasonably believed their original counsel was zealously representing their interests in this lawsuit. Coupled with defendants’ clear diligence in seeking new counsel and relief from the 12/8/2017 order, the court will exercise its discretion and grant the relief requested by defendants.

While the opposition disputes the validity of the statute of limitations defense asserted by defendants, the court finds it to be potentially meritorious and need not here make a final determination of the merits of this or other defenses which may be advanced by defendants.

Under the unique circumstances of this case, the court also declines to award plaintiff attorney fees incurred in connection with the earlier motion heard on 12/8/2017, the motion for summary judgment/adjudication now set for hearing on 4/19/2018 or the opposition to the present motion.

To the extent plaintiff’s opposition seeks an order compelling defendants’ production of documents pursuant to their earlier agreement, plaintiff may file and serve an appropriate noticed motion if the documents are not timely produced.

Finally, pursuant to the 10/5/2017 case management order, this matter has been referred to the trial setting process and the parties are required to select trial and settlement conference dates no later than 60 days after 2/22/2018. As this period has not yet expired and the parties may still select an appropriate trial date in light of the relief granted by this ruling, the court declines at this time to refer this case back for another case management conference.