Case Number: GC050972 Hearing Date: June 06, 2014 Dept: NCD

Defendant’s Motion for Relief from Order Deeming Requests for Admissions Admitted

TENTATIVE:
The court in its discretion has considered the untimely “First Amended Opposition” to the motion.

Defendant Bassam Hamzeh’s Motion for Relief from Order Deeming Requests for Admissions Admitted is GRANTED.

Plaintiff’s request for monetary sanctions is DENIED.

The court, pursuant to CCP § 2033.300(c), imposes conditions on the granting of the motion as follows:

Trial is continued to __________. Discovery, measured from the current trial date, is now closed, except as set forth below.

Plaintiff, the party who obtained the admissions, is permitted to pursue additional discovery related to the matters involved in the admissions.

BACKGROUND:
MP: Defendant and Cross-Complainant Bassam Hamzeh
RP: Plaintiff Frank Camara aka Malek Bouzid

RELIEF REQUESTED:
Order relieving defendant from this court’s order deeming requests for admissions admitted and permitting defendant to withdraw his admissions and respond, without objections, to the outstanding discovery.

FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Frank Camara brings this action alleging that plaintiff entered into two oral contracts with defendant Bassam Khamzeh pursuant to which plaintiff performed labor and services refurbishing three apartment units at an apartment building in Pasadena and refurbishing one apartment unit at another apartment building in Pasadena, for which defendant has failed to pay. Plaintiff also alleges that between December 2010 and February 2012, plaintiff lent defendant the sum of $131,000 in check disbursements, the receipt of which defendant has acknowledged in writing, but which defendant has failed to repay.

The file shows that on April 4, 2014, the court granted discovery motions brought by plaintiff, including a motion to deem Requests for Admissions admitted by defendant Bassam Hamzeh. The court denied a motion by defendant to modify its previous order setting the previous discovery motions for hearing.

Defendant now seeks that the Court permit him to serve responses to the RFAs.

ANALYSIS:
Substantive
The RFAs were previously deemed admitted pursuant to CCP § 2033.280, under which a party who fails to serve a timely response to requests for admissions “waives any objection to the requests.” The file shows that prior to the previous hearing, defendant represented that he had not been served with the subject discovery, but in fact in all events the discovery had been attached to the prior motions, and defendant also could have reviewed the court file, and prepared responses to be submitted by the hearing date.

This motion seeks relief under CCP § 2033.300. It is held that after a “deemed admitted order” has been entered by the court, the party in default may seek relief from waiver by filing a motion to “withdraw or amend” the “deemed admissions” under the predecessor to CCP § 2033.300. See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979; Weil & Brown, Civ. Proc. Before Trial 8:1369.5.

CCP § 2033.300 provides:
“(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.”

Mistake, inadvertence, surprise or excusable neglect is defined as some condition or situation in which a party is unexpectedly placed to his injury without any default or negligence of his own, which ordinary prudence could not have guarded against. Credit Managers Association v. National Industrial Business Alliance (1984 2nd Dist.) 162 Cal.App.3d 1166. The burden is on the party seeking relief to show why he is entitled to the relief on these grounds. Bruskey v. Bruskey (1935) 4 Cal.App.2d. 472.

Defendant here argues that his failure to previously respond was due to mistake, surprise or excusable neglect, claiming again that while he may have been served with the discovery and previous motions, he did not in fact receive such mailings. [Hazmeh Decl., para. 2-5].

The opposition argues that any neglect in this matter by defendant was inexcusable, as there is no explanation as to why defendant has not received mail, including the discovery, notices of motions and a meet and confer letter, at his address of record, which he confirmed was his current mailing address several times, including at a hearing in September. [Hedkte Decl., para. 7]. Plaintiff’s counsel also reports a telephone conversation with defendant in which counsel told defendant that plaintiff would be filing a motion to compel and to have admissions deemed admitted, and that defendant responded, “do what you have to do. You have not given me the information I need from Rachida.” [Hedkte Decl., para. 6]. Counsel for plaintiff is opposing counsel in a divorce proceeding involving Rachida Bouraba, and could not discuss that action with defendant because defendant is represented by counsel in that action. The theory, then, is that defendant deliberately refused to respond to discovery in this matter because he was not provided information in the other matter.

The opposition also argues that to the extent defendant’s argument is that the discovery was served on defendant, but not received, the argument is really that the failure to respond was not due to the excusable neglect of defendant, but due to some neglect on the part of plaintiff’s counsel, which is not an appropriate ground for relief.

In addition, there appears to be prejudice to plaintiff here, as the discovery cut off expires just after the hearing on this motion, so that plaintiff – – but for the Court’s ruling on this motion carving out some amount of permitted limited discovery beyond the discovery cut-off date – – would be unable to conduct further discovery concerning any responses to the RFAs, when the deem admitted order had basically taken all issues raised by those RFAs off the table. The opposition also indicates that defendant has failed to appear for a duly noticed deposition as well, so that there is not enough time to schedule a deposition and given the current state of discovery, there is a significant chance that plaintiff would be surprised at trial. This apparently still untaken deposition will be taken up at the motion hearing on June 6, 2014.

Sanctions are sought based on CCP Section 473, but this motion is not brought pursuant to that provision so cannot be properly awarded here.