SANTA PATRICIA INVESTMENTS INC v. MORRISSETTE CONSTRUCTION INC

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Court of Appeal, Third District, California.

SANTA PATRICIA INVESTMENTS, INC., et al., Petitioners, v. SUPERIOR COURT of Mono County, Respondent, MORRISSETTE CONSTRUCTION, INC., Real Party in Interest.

No. COO9333.

Decided: June 12, 1991

 Rushfeldt, Shelley & Drake and Brian S. Nelson, Sherman Oaks, for petitioners. No appearance for respondent. Paul S. Rudder, Rudder, Liebersbach & Mohun and Gerald F. Mohun, Jr., Mammoth Lakes, for real party in interest.

Petitioners seek a writ of mandate directing the respondent court to vacate its order denying their motion for relief from  default, under Code of Civil Procedure section 473 1 , from the order, issued pursuant to section 2033, subdivision (k), which deems admitted the matters specified in real party's request for admissions.   The respondent court ruled that it had no power under section 2033 to grant relief.   We disagree.   Subdivision (m) of section 2033 provides grounds, paralleling those of section 473, upon which the court may grant withdrawal or amendment of the matter deemed admitted.   We shall direct that the court apply this provision to petitioners' motion.

PROCEDURAL FACTS

This dispute arises from the sale by real party in interest Morrissette Construction, Inc. (plaintiff) to Santa Patricia Investments, Inc. and D.E. Beeler (defendants) of an Exxon gas station business in Mammoth Lakes, Mono County, California.   On November 7, 1989, plaintiff filed a complaint alleging breach of the contract and seeking damages and judicial foreclosure.   On January 22, 1990, defendants filed a general denial.

On February 20, 1990, plaintiff served a first set of requests for admissions.   At the time, defendants were represented by Michael Berger.   On March 8, the court granted Berger's request to be relieved as attorney of record.   No responses to the requests for admissions had yet been prepared and defendants were not informed by Berger of the need to respond.

On April 5, plaintiff's counsel wrote to defendants demanding responses to the requests within 10 days.   Defendants did not respond as demanded and on May 2 plaintiff filed a motion to deem the matters admitted.   Defendants then attempted to obtain new counsel and contacted Samuel Plunkett, an attorney and friend, for guidance.   Plunkett attempted to prepare responses but was unable to get them to plaintiff before the hearing on plaintiff's motion due to the illness of a typist.   On the morning of May 24, the court granted plaintiff's motion.   That afternoon responses were sent to plaintiff by telecopier.

Defendants obtained substitute counsel and, on June 20, moved for relief from default, citing to section 473.   Defendants also moved for continuance of a hearing on plaintiff's previously noticed motion for summary judgment.   On July 3, the court denied defendants' motion for relief from default.   The hearing on the motion for summary judgment was rescheduled for August 6.

 On July 31, 1990, defendants initiated this writ proceeding, seeking review of the superior court's order denying section 473 relief and a stay of the summary judgment hearing.   On August 2, 1990, we stayed the hearing as requested.

DISCUSSION

This writ proceeding tenders the question whether relief from default may be had from an order which deems admitted the matters specified in real party's request for admissions.   Defendants claim that relief from the order may be had under the provisions of section 473.2  Plaintiff claims that the deletion of the reference to section 473 from the 1986 amendment to section 2033, subdivision (k), precludes relief.   Neither party has it right.

 Plaintiff is correct that the provision for relief from the admission by default under section 473 has been removed from section 2033.   But analogous relief is available under subdivision (m) of section 2033, which authorizes a court to grant leave to withdraw an admission on grounds, among others, that “the admission was the result of mistake, inadvertence, or excusable neglect․” 3

The trial court denied the motion for relief under section 473, concluding that section 2033 “provides similar discretional criteria” and prevails over section 473 because it is the more specific section applicable to requests for admissions.   However, the court here referred to subdivision (k), rather than the dispositive subdivision (m), and there is no suggestion in the record that the court applied the criteria for relief of the latter provision.

Section 2033 provides for a written request for admissions of the truth of relevant matters of fact specified in the request.   Prior to July 1, 1987, subdivision (a) of section 2033 provided that if a party failed to timely answer or object to the request for admissions within the time allowed the matters would be deemed admitted if the propounding party served a notice to that effect upon the defaulting party.   In such case, however, the defaulting party was given 30 days after service of notice within which to serve and file a motion for relief under section 473.4

  Effective July 1, 1987, section 2033, subdivision (k), was amended to treat the waiver of objections to admissions separately from the failure to timely answer a request for admissions.  (Stats.1986, ch. 1334, § 2, operative July 1, 1987.)   In the first paragraph it provides:  “If a party to whom requests for admission have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Section 2018.   However, the court, on motion, may relieve that party from this waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance with subdivision (f), and (2) the party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”  (Emphasis added.) 5  Pursuant to this paragraph a court may relieve a  party from the waiver of an objection to an admission on grounds paralleling those provided in section 473.

The second paragraph of subdivision (k) provides the manner in which matters specified in a request for admissions may be deemed admitted for failure to timely answer the request.  “The requesting party may move for an order that ․ the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Section 2023.   The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with paragraph (1) of subdivision (f)․”

This paragraph contains no provision for relief from a failure to serve a response by the time of the hearing on the motion to deem a request admitted.   Such relief must be obtained, if at all, by motion under section 473, or by resort to subdivision (m) of section 2033.   The 1986 revision of section 2033 deleted all reference to relief under section 473.   We take that to mean that relief must now be had under the provisions of subdivision (m).

Subdivision (m) provides in pertinent part that “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.   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.”

 This provision could be read to apply only in the circumstance that a party has timely responded to a request for admissions.   However, the phrase “admission made in response to a request for admission” could also  be read to encompass an admission “deemed admitted” on the order of the court following a failure to timely file a proposed response to the requests for admission pursuant to a motion.   Such a construction is consistent with the statutory provision for relief from a waiver of an objection and for relief from an improvident admission.

Given the fact that two constructions are semantically permissible we indulge the presumption that “Where a statute is susceptible of two constructions, one leading to mischief or absurdity, and the other consistent with justice and common sense, the latter must be adopted.  (Jacobs v. Dept. of Motor Vehicles (1958) 161 Cal.App.2d 727, [327 P.2d 123];  Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 630 [197 P.2d 543].)”  (Lampley v. Alvares (1975) 50 Cal.App.3d 124, 128–129, 123 Cal.Rptr. 181.)   We deem it unjust to conclude that the relief accorded a waiver of objections to an admission is absolutely barred no matter what the reason for failure to file a response by the time of the hearing on the motion to deem a request admitted and no matter what the reason for delay.   We note that in this case the response was filed on the same day as the hearing.

For these reasons we resolve the ambiguity in section 2033, subdivision (m), in favor of its applicability to the case of failure to timely file a response to a motion for admissions.   Accordingly, we hold that a party may seek relief from an order deeming matters admitted by filing a motion under subdivision (m) of section 2033 to withdraw the deemed admissions on the ground 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.”

When a timely request is made, subdivision (m) of section 2033 requires that the trial court consider whether relief from default should be granted.   Here the court failed to consider the timeliness of the request or whether relief was appropriate.   This was error.

DISPOSITION

After this petition was filed we entered an order staying the hearing on defendants' motion for summary judgment and notified the parties we were considering issuing a peremptory writ of mandate in the first instance.   Plaintiff has filed opposition.

Having complied with the necessary procedural requirements, we shall order issuance of a peremptory writ of mandate without first issuing an  alternative writ.  (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.)

Let a peremptory writ of mandate issue directing respondent superior court to vacate its July 3, 1990, order and reconsider defendants' motion for relief from the order deeming matters admitted pursuant to the provisions of subdivision (m) of section 2033.   The stay previously issued is vacated.

FOOTNOTES

1.   All unspecified references to a section are to the Code of Civil Procedure.

2.   Section 473 generally authorizes a court to relieve a party from “a judgment, order, or other proceeding taken against him or her” due to “mistake, inadvertence, surprise, or excusable neglect.”   An application for relief under this section must be made “within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken․”

3.   Section 473 contains the additional ground of surprise, a ground of no obvious application in the circumstances addressed by section 2033.

4.   Prior to July 1, 1987, section 2033, subdivision (a), provided in relevant part:  “After service of summons or the appearance of a party, any other party who has appeared in the action may serve upon any party who has been served or who has appeared a written request for the admission by the latter of the genuineness of any relevant documents described in the request or of the truth of any relevant matters of fact set forth in the request․   Each of the matters of which an admission is requested shall be deemed admitted ․ unless, within the period designated in the request, ․ the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why the party cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part․“․“Upon failure of a party served with requests for admissions pursuant to this section either to answer or to file objections within the period as designated in the request or as extended by the court, the party making the request may serve upon the other party a notice in writing by certified or registered mail, return receipt requested, notifying the party so served that the genuineness of the documents or the truth of the facts has been deemed admitted.   Once the notice is served, the party upon whom the notice is served shall not have the right to apply for relief under the provisions of Section 473 unless a motion requesting relief is served and filed within 30 days after service of the notice.”  (Stats.1983, ch. 141, § 2.)

5.   Section 2033 presently reads, in pertinent part:“(a) Any party may obtain discovery within the scope delimited by Section 2017, and subject to the restrictions set forth in Section 2019, by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.   A request for admission may relate to a matter that is in controversy between the parties.“․“(k) If a party to whom requests for admission have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Section 2018.   However, the court, on motion, may relieve that party from this waiver on its determination that (1) the party has subsequently served a response that is in substantial compliance with subdivision (f), and (2) the party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.“The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Section 2023.   The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with paragraph (1) of subdivision (f)․”“․“(m) 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.   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.   The court may impose conditions on the granting of the motion that are just, including, but not limited to, an order that (1) the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission, and (2) the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.”

BLEASE, Acting Presiding Justice.

SPARKS and DAVIS, JJ., concur.