2016-00204441-CU-BT

Folsom Ready Mix-Anderson, LLC vs. Randy David Barnes

Nature of Proceeding: Motion to File and Serve Responses

Filed By: Cozens, Philip

Defendant Randy Barnes “motion to file and serve responses pursuant to Code of Civil Procedure Section 2033.300” is denied.

On August 10, 2018, this Court granted Plaintiffs’ Folsom Ready Mix-Anderson, LLC’s and Folsom Ready Mix, Inc.’s motion to deem admitted six different requests for admission that were served on Defendant. There were a total of 1,308 requests for admissions.

On September 18, 2018, the Court denied Defendant’s motion for reconsideration, which it construed as a motion to withdraw admissions pursuant to CCP § 2033.300 without prejudice for failure to offer any evidence showing excusable neglect that resulted in the requests for admission being deemed admitted.

“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.” (CCP § 2033.300(b). [emphasis added]) This provision applies to admissions expressly made by a party as well as “deemed admissions.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979; see Burch v. Gombos (2000) 82 Cal. App. 4th 352, 359-360.)

Defendant’s counsel declares that he had prepared a motion for protective order with respect to the numerous requests but failed to file the motion prior to the time Plaintiffs’ filed their motion to deem matters admitted. (Cozens Decl. ¶ 14.) While he indicates that he opposed Plaintiffs’ motion, he declares that he failed to draft responses to the subject requests for admissions due to his involvement in a criminal and juvenile matter and the volume of the requests. (Id. ¶¶ 11-12, 14-15.)

Here, the Court finds that Defendant has thus far failed to establish that the admissions were the result of mistake, inadvertence, or excusable neglect. First, Defendant appears to argue that he knew that only 35 admissions were authorized, and understood that he could obtain a protective order but failed to timely file a motion for protective order. He then argues that he failed to prepare responses to the requests for admissions because of a due date for a reply brief for an appeal in the case of United States v. McNeal and due to his involvement in a juvenile matter which began on August 1, 2018 and lasted eight days rather than the estimated three.

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421 [emphasis added].) The Court’s discretion to “deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party’s action or defense on the merits.” (Id.)

An attorney’s mistake is excusable when it is the type of mistake that might have been

made by “a reasonably prudent person under the same or similar circumstances.” ( Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.) By contrast, “[c]onduct falling below the professional standard of care, such as failure to timely object or properly advance an argument, is therefore not excusable” under the discretionary provisions of CCP § 473. (Id.) To the extent that Defendant truly believed that he was entitled to a protective order due to the fact that Plaintiff served more than 35 admissions, there is no evidence as to why such motion was not filed before Defendant’s responses were initially due. Rather, Defendant’s counsel’s declaration merely discusses how he failed to draft responses to the requests for admission after Plaintiff filed the motion to deem matters admitted due to involvement in other matters. That counsel has a busy practice does not alter the Court’s conclusion. (See Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423-1424 [“press of business does not constitute excusable neglect in itself”].)

Further, while Defendant’s counsel appeared to believe that the same grounds that would have entitled him to a protective order (e.g. more than 35 RFAs) would allow him to successfully oppose Plaintiff’s motion to deem matters admitted, as the Court noted in granting Plaintiffs’ motion to deem matters, any motion for protective order should have been filed at the time the responses were due and that the objection raised in his opposition on that basis had been waived. Defendant simply never filed the motion for protective order before the responses were due and failed to even request an extension of time to respond. His conduct in this regard in failing to timely object was not excusable.

Moreover, Defendant was essentially given a second chance to file responses when the Court issued the tentative ruling granting Plaintiffs’ motion to deem matters admitted unless Defendant served before the hearing responses that were in substantial compliance with CCP § 2033.220. Defendant did not contest that ruling and did not file responses prior to the hearing. Defendant’s counsel’s only explanation for failing to do so is due to the fact that he was involved in a juvenile trial during that time which started on August 1 and went for eight Court days as opposed to the estimated three and because he had to file a reply brief in a criminal appeal on August 15, 2018. However, again, mere “press of business” is not sufficient to constitute excusable neglect. The fact that Defendant’s counsel “was busy with other matters during the relevant period…standing alone would not constitute excusable neglect.” ( Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) “To constitute grounds for relief, an exceptional workload generally must be accompanied by some factor outside the attorney’s control that makes the situation unmanageable, such as a mistake ‘caused by a glitch in office machinery or an error by clerical staff.’” (Huh v. Wang, supra, at p. 1424 [citation omitted].) Here, there is no evidence of any clerical mistake, any misplacing of documents, or any other extraordinary circumstance, for example, an extraordinary change in a law firm that resulted in the work of multiple attorneys being redistributed to a smaller number of attorneys. (Id. [collecting cases]) All of the cases cited by Defendant involved something more than a “press of business.” Elston, supra involved a situation where the attorney was unaware of the existence of requests for admissions until the answers were overdue. (Elston, supra, 38 Cal.3d at 235.) Alderman v. Jacobs (1954) 128 Cal.App.2d 273 involved a situation where the attorney’s assistant lost an answer that had been prepared for filing. Here, however, Defendant’s counsel simply points to his involvement in a juvenile trial and filing a reply brief in a criminal appeal. This is not sufficient.

While true that there were a large number of requests at issue (1,308), the requests all

involved requests that Defendant admit that various purchases he made were not for business expenses and that he was not authorized to make the purchase. The Court does not find that the number of the requests is an extraordinary circumstance which when coupled with the “press of business” constitutes excusable neglect. The Court again must note that Defendant did not challenge the Court’s tentative ruling that deemed the matters admitted unless he served responses prior to the hearing. That is, he never indicated to the Court that he would not be able to do so or otherwise ask for additional time to serve the responses.

It is clear from the papers that Defendant’s counsel’s conduct was not excusable and thus the motion must be denied on the present showing.

Given the above, the Court need not reach Plaintiffs’ arguments that they would be substantially prejudiced or that the proposed responses are not in substantial compliance with CCP § 2033.220.

While Defendant argues that it will be prejudiced if the admissions are not withdrawn given that he will be deemed to have admitted that many of the transactions were personal expenses as opposed to legitimate business expenses thus exposing him to substantial liability, this is not a basis to grant the motion. Absent a showing of excusable neglect, the motion cannot be granted.

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.