Plaintiff's Motion to Deem Requests for Admissions Admitted granted: [my recourse?]

[trosoft]

What is the name of your state (only U.S. law)? California.

I live in Los Angeles. This concerns an unlawful detainer case.

I was served with a Notice of Motion to Deem Requests for Admissions Admitted and for Monetary Sanctions (pursuant to C.C.P. Section 2033.280. It indicated that I should appear for the matter to be heard at 9:15 AM on April 25, 2011. Due to a sudden medical situation, I was delayed; I arrived at 9:20. However, by then, the court had already heard and rule on the plaintiff’s motions.

The judge deemed the Requests for Admissions Admitted. Also, I am required to pay monetary sanctions of $150 to plaintiff attorney.

Note that I did call that trial room (department) five times to inform the court of my situation, and that I would be approximately five minutes late. But, each time I got the voice mail; I left the same message each time.

Here are the specific admissions about which I am concerned:

Request for Admission No 1
That [name of my apartment owners’ company] has met all applicable requirements of local rent control or eviction control ordinance.

Request for Admission No 2
That [name of my apartment owners’ company]] does not violate local rent control ordinance, including the posting of Rental Registration statement.

I had planned to show certified Los Angeles Housing Departments (LAHD) documents that indicate that my unit is not registered, notwithstanding the fact that LAHD ordered the landlords to register my rental unit. LAHD did tell me to withhold rent until landlord had complied with that registration requirement. After compliance, I was to pay the current rent, plus any rent past due.


Questions:

1. Can I file a motion to set aside the court’s decision, and have an opportunity to explain what happened? (If so, what type of motion(s)
2. If not, what procedure can I use to have the motion hearing ruling reconsidered?
3. At trial, can I still raise as an affirmative defense the failure of the landlord to register my rental unit?
4. At trial, can I still raise as an affirmative defense the failure of the landlord to register my rental unit?






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Ordinance excerpts:
_______________
§151.09. EVICTIONS
(Amended by Ord. No. 154,237, Eff. 8/30/80, Oper. 9/1/80.)

A.
1. The tenant has failed to pay the rent to which the landlord is entitled, including amounts due
under Subsection D of Section 151.05.
.
.
[The rent control ordinance does allow for certain affirmative defenses]

E. In any action by a landlord to recover possession of a rental unit, the tenant may raise as an
affirmative defense any violation of the provisions of this chapter. Violation of Subsections A., B. or D. of this section shall not constitute a misdemeanor. (Amended by Ord. No. 166,130, Eff. 9/16/90.)

F. In any action by a landlord to recover possession of a rental unit the tenant may raise as an
affirmative defense the failure of the landlord to comply with Section 151.05 A. of this chapter. (Added by Ord. No. 156,597, Eff. 5/20/82, Oper. 5/15/82.)

§151.11. Refusal of a Tenant to Pay
(Amended by Ord. No. 156,597, Eff. 5/20/82, Oper. 5/15/82.)

A.
.
.
.
B. A tenant may withhold the payment of any rent otherwise lawfully due and owing after July 1, 1979 until such time as the landlord has complied with §151.05 A. of this chapter. Once the landlord has complied with §151.05A. of this chapter the tenant becomes obligated to pay the current rent and any back rent withheld pursuant to this subsection.

 

[sandyclaus]

So this is what happened when you ignored the original discovery requests?

If I was scheduled to appear in court at 9:15am, I would have planned to be there 1/2 hour early, just to make sure. And you should have had the phone number direct to the courtroom. I'll bet you kept calling the clerk's office, which is usually quite busy and impossible to get through, especially when you are in a hurry. As you have realized, the judges usually get through the uncontested motions pretty quickly right off the top, and if you are not 100% on time, you risked them ruling against you.

Since the judge ruled those specific items admitted, unless you can get the decision reconsidered, you have no chance at using the conflicting information at trial. The admission basically says that this what the evidence says, and you will not be allowed to enter anything in to evidence to the contrary.

You should probably try to file a Motion for Reconsideration. There is no form to fill out. Here is a link that will give you SOME information (but not much): California Courts: Self-Help Center: More Topics: Appeals: Options to Appealing

If you are unfamiliar with how to prepare a motion, you should hire an attorney to do the papers for you. It's not a simple document, and unless you do it right and follow procedure, it can cause more trouble than you already have now.

 

[George1776]

Ignore a request for admissions at your own peril folks....motion for reconsideration may be allowed if you have NEW evidence to present; ie evidence that did not exist before your last hearing.

I can see the judge saying "motion denied" in your case for the reconsideration.

If its due to a medical condition -- include the ER billing showing that you were near death (I don't think u were though).

 

[sandyclaus]

I realized this after I made the above reply.

george appears to have a valid point. You did ignore the discovery request. That's what this hearing was about - a Motion to punish you for failing to respond to the Plaintiff's discovery requests. It was never about entering your documents into evidence in the first place.

California Code of Civil Procedure Section 1005 provides that if you were to oppose the Plaintiff's discovery motion, you needed to respond IN WRITING with your opposition papers and file them with the court prior to the hearing. If you had made it to the hearing on time, it's very likely that the Plaintiff's attorney could have argued that you never filed (timely or otherwise) opposition papers to the pending Motion with the court and as such, you may not have even been allowed to argue your position.

I fear that your unfamiliarity about the whole discovery process and the related law gave the Plaintiff's attorney the opportunity to mow you over here. Ignorance of the law would not have been a good enough reason for not responding to the initial Requests for Admission. You really needed to address the issue with the Requests for Admission before it got to this point. Even a Motion for Reconsideration is unlikely to do much good now.

 

[George1776]

Its why I love requests for admissions...

 

[trosoft]

The service of discovery requests was not timely

FedEx delivered discovery requests on April 12. My trial was scheduled for April 20.

I was given five days to comply with discovery, i.e., by April 17. That fifth day was not "on or before the fifth day before the date set for trial.
"; it violated CCP § 2024.040 (b) (1). Therefore, I was under no obligation to comply with such untimely discovery.

That would have been a valid argument at the motion hearing. Also, I believe that the service of the discovery motion requests was fatally defective.


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CCP Section 2024.040


(a)The time limit on completing discovery in an action to be arbitrated under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 is subject to Judicial Council Rule. After an award in a case ordered to judicial arbitration, completion of discovery is limited by Section 1141.24.
(b)This chapter does not apply to either of the following:
(1)Summary proceedings for obtaining possession of real property governed by Chapter 4 (commencing with Section 1159) of Title 3 of Part 3. Except as provided in Sections 2024.050 and 2025.060, discovery in these proceedings shall be completed on or before the fifth day before the date set for trial.
(2)Eminent domain proceedings governed by Title 7 (commencing with Section 1230.010) of Part 3.

 

[sandyclaus]

FedEx delivered discovery requests on April 12. My trial was scheduled for April 20.

I was given five days to comply with discovery, i.e., by April 17. That fifth day was not "on or before the fifth day before the date set for trial.
"; it violated CCP § 2024.040 (b) (1). Therefore, I was under no obligation to comply with such untimely discovery.

That would have been a valid argument at the motion hearing. Also, I believe that the service of the discovery motion requests was fatally defective.

I get that, but having NOT responded with proper opposition papers files before the hearing, you may not have even been given a chance to argue this before the court. CCP 1005 REQUIRES a written opposition to be filed with the court within a specific timeframe before the Motion hearing. A smart lawyer will argue that if you didn't file such a written response, that you don't get to surprise them with your opposition in open court. Sometimes they win on this point.

Bottom line is that discovery matters are tricky and judges don't like dealing with motions involving them. They'd rather err on the side of caution then give an unskilled pro se party a chance to make verbal arguments.

I'm trying to say that while you may have had a valid reason for not responding to discovery, you DID NOT have a valid reason for not filing papers in opposition of the Plaintiff's motion before the Court before the hearing. "I didn't know" doesn't go over well when pro se parties try to muddle their way through processes they don't understand. It was your lack of knowledge and refusal to get professional assistance in the face of that which caused this. It had very little to do with being late to court.

 

[trosoft]

I get that, but having NOT responded with proper opposition papers files before the hearing, you may not have even been given a chance to argue this before the court. CCP 1005 REQUIRES a written opposition to be filed with the court within a specific timeframe before the Motion hearing. A smart lawyer will argue that if you didn't file such a written response, that you don't get to surprise them with your opposition in open court. Sometimes they win on this point.

Bottom line is that discovery matters are tricky and judges don't like dealing with motions involving them. They'd rather err on the side of caution then give an unskilled pro se party a chance to make verbal arguments.

I'm trying to say that while you may have had a valid reason for not responding to discovery, you DID NOT have a valid reason for not filing papers in opposition of the Plaintiff's motion before the Court before the hearing. "I didn't know" doesn't go over well when pro se parties try to muddle their way through processes they don't understand. It was your lack of knowledge and refusal to get professional assistance in the face of that which caused this. It had very little to do with being late to court.

I did consult with an attorney regarding the plaintiff attorney's discovery. The attorney advised that I not comply with discovery because it was not timely.

I filed no objection to the attorney's discovery motions. If I read the below rule correctly, my failure to oppose the motion does not preclude my filing a motion to vacate discovery orders.

California Rules of Court, rule 3.1348(b) provides:

“The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”

 

[Zigner]

I did consult with an attorney regarding the plaintiff attorney's discovery. The attorney advised that I not comply with discovery because it was not timely.

Too bad you ignored sandyclaus in your other thread:

...

you would have been given 7 days from the date of receipt to comply with the discovery demands. You received the requests on April 13, 2011, which gave you 7 days to comply. You would need to comply on or before the trial date of April 20, 2011. You had 7 days to comply.
...

 

[trosoft]

Thank you for the best response. Now, reality sets in!

I get that, but having NOT responded with proper opposition papers files before the hearing, you may not have even been given a chance to argue this before the court. CCP 1005 REQUIRES a written opposition to be filed with the court within a specific timeframe before the Motion hearing. A smart lawyer will argue that if you didn't file such a written response, that you don't get to surprise them with your opposition in open court. Sometimes they win on this point.

Bottom line is that discovery matters are tricky and judges don't like dealing with motions involving them. They'd rather err on the side of caution then give an unskilled pro se party a chance to make verbal arguments.

I'm trying to say that while you may have had a valid reason for not responding to discovery, you DID NOT have a valid reason for not filing papers in opposition of the Plaintiff's motion before the Court before the hearing. "I didn't know" doesn't go over well when pro se parties try to muddle their way through processes they don't understand. It was your lack of knowledge and refusal to get professional assistance in the face of that which caused this. It had very little to do with being late to court.

Not even the following rule helps me, given my various inactions and oversights:

California Rules of Court, rule 3.1348(b) provides...

The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.

I finally did hire attorney, but the horses have already bolted from the stables.

Yep! It is time to cut my losses and move on.

Thank you everyone for such lucid and on-point responses.

And, may God bless all of you!

 

[trosoft]

Success: Judge granted relief from admissions for failure to response

Issues:

1. Was I required to have filed a written opposition to the plaintiff’s discovery motion to deem admissions admitted?

2. Was I required to have provided plaintiff (moving party) with a proposed responses to the request for admissions (RFAs)—before the original discovery motion hearing?

3. Did I have a valid reason for being late to the original discovery motion hearing?

4. Was the requests for admissions (RFAs) facially invalid due to untimely service?

________________

In the original discovery hearing, the plaintiff moved to have the set of admissions deemed admitted. I was not present when court heard motion. I arrived ten minutes late, due to a sudden, unavoidable and physcially incapacitating medical condition.

After judge deemed admissions admitted, I hired an attorney. He went back in ex parte before the same judge to set stage for full-blown hearing. A week later, both sides argued before the court.

My attorney requested that the judge set aside his previous order. He relied upon CCP § 473 (b).

He provided my medical history documents substantiating my medical condtion. He noted that I did call that very courtroom, four times, before the hearing session on the plaintiff's original motion. I only reached voice mail; I left messages indicating that I was on the way and was going to be ten minutes late, due to a serious medical situation. I had cell phone records.

Also, my attorney did argue that the original discovery papers were served in untimely manner; therefore the Request for Admissions was facially invalid. My attorney provided the FedEx detailed summary of the envelope delivery. He showed actual FedEx envelope, with the airbill still undisturbed, within its plastic enclosure.

Note that I received within that same envelope two discovery documents: Request for Admissions; and Demand for Production of Documents for Copying and Inspection. Each set of discovery documents had their own Proof of Service document attached. The former had indicated that it had been served by being delivered to FedEx representative on April 8; whereas the latter indicated service by delivery to FedEx representative on April 6. However, FedEx delivery details indicated that envelope was not given to representative until April 11.

(Remember, FedEx delivered RFAs on the April 12. I was given five days to respond. At that time, my trial was scheduled for April 20th. On trial day, it was continued to third week of May.)

Finally, he argued that had I actually been present when the court heard my case, at the original hearing, I would have convinced the court that the service of the RFA was fatally defective. Therefore, I did not have file any written opposition or serve a proposed response to the RFA before the original discovery motion hearing.

The judge decided in my favor. The judge set aside his previous order deeming admissions admitted. Now, I once again have the opportunity to have my case tried upon the merits, instead of a supposed procedural lapse.

 

[trosoft]

Relevant legal authorities and citations

Legal authorities:

Oddly enough, I thought it rather curious that the judge relied upon § 473, regarding relief on the basis of mistake, inadvertence, or excusable neglect. It was my understanding that CCP § 2033.300 supersedes § 473 as the avenue to obtain default relief in situations where a party failed to respond to requests for admissions. St. Paul Fire & Marine Ins. Co. v. Superior Court (1992, Cal App 6th Dist) 2 Cal App 4th 843, 3 Cal Rptr 2d 412, 1992 Cal App LEXIS 47, review denied (1992, Cal) 1992 Cal LEXIS 1973, overruled in part Wilcox v. Birtwhistle (1999) 21 Cal 4th 973, 90 Cal Rptr 2d 260, 987 P2d 727, 1999 Cal LEXIS 7785.


CCP § 473
(a) (1) The court may, in furtherance of justice, and on any
terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any
other respect; and may, upon like terms, enlarge the time for answer
or demurrer. The court may likewise, in its discretion, after notice
to the adverse party, allow, upon any terms as may be just, an
amendment to any pleading or proceeding in other particulars; and may
upon like terms allow an answer to be made after the time limited by
this code.
.
.
.
(b)The court may, upon any terms as may be just, relieve a party
or his or her legal representative from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect.
______________________________________

CCP § 2024.040
(a)The time limit on completing discovery in an action to be arbitrated under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 is subject to Judicial Council Rule. After an award in a case ordered to judicial arbitration, completion of discovery is limited by Section 1141.24.
(b)This chapter does not apply to either of the following:
(1)Summary proceedings for obtaining possession of real property governed by Chapter 4 (commencing with Section 1159) of Title 3 of Part 3. Except as provided in Sections 2024.050 and 2025.060, discovery in these proceedings shall be completed on or before the fifth day before the date set for trial.

______________________________________

CAL. CCP. CODE § 2033.300
(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.
(c)The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:
(1)An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.
(2)An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.

______________________________________

California Rules of Court, rule 3.1348(b) provides: “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”

______________________________________

See: Wilcox v. Birtwhistle (1999), 21 Cal.4th 973 [Matters deemed admitted due to lack of verification of responses. Prompt motion for relief after windfall summary judgment. Held: "...a party may withdraw or amend admissions deemed admitted for failure to respond upon a showing of 'mistake, inadvertence or excusable neglect' and no substantial prejudice pursuant to (m)" C.C.P,§ 2033(m) applies to all admissions including those deemed admitted for failure to respond pursuant to (k).

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See also: Freshman, Mulvaney, Marantz Comsky, Kahan, & Deutsch v. Superior Court (Kreuger) (1985) 173 Cal.App.3d 223 [218 Cal.Rptr. 533]
The trial court did not err in refusing to grant petitioners' motion under section 473 as it lay within the sound discretion of the trial court to grant or deny such motion.

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