Elston v. City of Turlock

• Decision Date: 04 March 1985
• Docket Number: S.F. 24678
• Court: California Supreme Court
• Parties: , 695 P.2d 713 Robert C. ELSTON et al., Plaintiffs and Appellants, v. CITY OF TURLOCK et al., Defendants and Respondents.

Page 416

211 Cal.Rptr. 416

38 Cal.3d 227, 695 P.2d 713

Robert C. ELSTON et al., Plaintiffs and Appellants, v. CITY OF TURLOCK et al., Defendants and Respondents.

S.F. 24678.

Supreme Court of California, In Bank.

March 4, 1985.

Canelo, Hansen & Wilson, James H. Wilson and Leonard Herr, Merced, for plaintiffs and appellants.

Diehl, Steinheimer, Riggio, Haydel & Mordaunt, M. Max Steinheimer, Joseph H. Fagundes, Stockton, for defendant and respondent Turlock Irr. Dist.

Martin, Crabtree, Schmidt & Zeff, Thomas D. Zeff, Nan Cohan Jacobs, Modesto, for

defendant and respondent Stanislaus County.

Richard G. Rypinski, San Francisco, Gordon S. Baca, Ronald I. Harrison and Bruce M. Rosenthal, State Dept. of Transp., for defendant and respondent the State of Cal.

BIRD, Chief Justice.

Did the trial court abuse its discretion by refusing to grant plaintiffs' motion under Code of Civil Procedure section 473 to set aside deemed admissions on the ground of excusable neglect?

I.

Robert Elston was seriously injured when the motorcycle he was riding collided with an automobile at a traffic intersection in Turlock, California. Elston and his wife filed suit against the City of Turlock, Turlock Irrigation District, the County of Stanislaus, the State of California, and the Pacific Telephone and Telegraph Company, alleging that the design of the intersection constituted a dangerous condition, which was exacerbated by a poorly located telephone pole. Elston sought damages for personal injury and his wife sued for loss of consortium.

On June 1, 1981, the county mailed a request for admissions to plaintiffs' attorney. The request concerned the ultimate issues in the case and stated, inter alia, that the intersection was not in a dangerous condition, that Elston's injuries were not proximately caused by the allegedly dangerous condition, and that the injuries did not occur in a foreseeable manner. Because plaintiffs' attorney failed to respond to the request within the requisite 30 days (see Code Civ.Proc., § 2033, subd. (a)), ¹ the county notified plaintiffs that the facts alleged in the request for admissions were deemed admitted. (Ibid.)

Upon receipt of the county's notice, plaintiffs' attorney moved to set aside the admissions under section 473 on the ground of "mistake, inadvertence, surprise or excusable neglect." As required by section 473, plaintiffs' attorney filed responses to the request for admissions in conjunction with the motion. The trial court denied plaintiffs' request for relief without a statement of reasons. On the basis of the admissions, all defendants made successful motions for summary judgment. ² This appeal followed.

II.

Section 2033 provides the mechanism whereby one party to a lawsuit may request that another party admit the genuineness of specified documents or the truth of certain facts. If the party served with the request fails to respond within 30 days of service, the matters as to which a request was made are deemed admitted. However, this automatic admission function operates only where the request for admissions contains a warning that failure to comply with the provisions of section 2033 will result in deemed admissions. ( § 2033, subd. (a).) ³ Where 30 days pass with no response to the request for admissions, the propounding party may serve the nonresponsive party with notice that the genuineness of the documents or the truth of the facts alleged is deemed admitted. (Ibid.) After service of such notice, the nonresponsive party has 30 days to move for relief from default under section 473.

Section 473 permits the trial court to "relieve a party ... from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect." ⁴ A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854, 48 Cal.Rptr. 620, 409 P.2d 700; Martin v. Cook (1977) 68 Cal.App.3d 799, 807, 137 Cal.Rptr. 434.) However, the trial court's discretion is not unlimited and must be " 'exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (Ibid.; Bailey v. Taaffe (1866) 29 Cal. 423, 424.)

Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Berri v. Rogero (1914) 168 Cal. 736, 740, 145 P. 95; see also Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 58 Cal.Rptr. 20 [applying former Gov.Code, § 912, subd. (b)(1) repealed 1965, now § 946.6, subd. (c)(1) ⁵.) In such situations "very slight evidence will be required to justify a court in setting aside the default." (Berri v. Rogero, supra, 168 Cal. at p. 740, 145 P. 95; Carbondale Machine Co. v. Eyraud (1928) 94 Cal.App. 356, 360, 271 P. 349.)

Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default (Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 470-471, 221 P. 204; Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099, 199 Cal.Rptr. 583 [in the context of deemed admissions § 473 should be applied liberally "so cases can be tried on the merits"]; Flores v. Board of Supervisors, supra, 13 Cal.App.3d at p. 483, 91 Cal.Rptr. 717.) Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. (Brill v. Fox (1931) 211 Cal. 739, 743-744, 297 P. 25; Flores v. Board of Supervisors, supra, 13 Cal.App.3d at p. 483, 91 Cal.Rptr. 717.)

Plaintiffs argue that the trial court abused its discretion by refusing to excuse their attorney's failure to timely respond to the request for admissions. In order to qualify for relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default. (5 Witkin, Cal.Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 153, p. 3727.) Here, plaintiffs' counsel filed his section 473 motion within eight days of receiving notice that the matters were deemed admitted.

In his affidavit accompanying the motion, counsel stated that because two attorneys had recently left the firm, his office was understaffed at the time the request for admissions was received. Counsel was "extensively" involved in other business and litigation matters at the time. In a supplemental affidavit, counsel explained that because his office was shorthanded, the request for admissions was misplaced and he was not aware of it until he received the county's notice that the matters contained in the request were deemed admitted.

Based on counsel's showing of excusable neglect, the trial court should have granted the section 473 motion. Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted. (See, e.g., Downing v. Klondike Min. etc. Co. (1913) 165 Cal. 786, 788, 134 P. 970; Toon v. Pickwick Stages, Inc. (1924) 66 Cal.App. 450, 452-455, 226 P. 628; cf. Nilsson v. City of Los Angeles, supra, 249 Cal.App.2d 976, 58 Cal.Rptr. 20.) Plaintiffs' counsel stated that because his office was shorthanded, the request for admissions "became misplaced and [he] did not become aware of [it] until [it was] overdue." Although counsel's affidavit could have been more explicit, his "failure to show an established office calendaring procedure was not a critical omission." (Nilsson, supra, 249 Cal.App.2d at p. 983, 58 Cal.Rptr. 20.)

In support of his motion for relief from default, counsel also stated that he was busy with other matters during the relevant period. This circumstance standing alone would not constitute excusable neglect. (See 5 Witkin, op. cit. supra, § 139, p. 3714 [press of business absent unusual circumstances is insufficient to warrant relief from default].) However, the "press of business" cases are not applicable here. Counsel does not allege that he was aware of the request for admissions and nevertheless failed to answer because he forgot or was too busy. (See, e.g., Dow v. Ross (1891) 90 Cal. 562, 27 P. 409; Soda v. Marriott (1933) 130 Cal.App. 589, 20 P.2d 758; McManus v. Larson (1932) 122 Cal.App. 716, 10 P.2d 523; Carbondale Machine Co. v. Eyraud, supra, 94 Cal.App. 356, 271 P. 349.) Instead, he contends that his office was understaffed, the papers were therefore misplaced, and he was unaware of their existence until the answers were overdue.

Circumstances similar to those alleged in counsel's affidavits have been held to constitute excusable neglect. (See Toon v. Pickwick Stages, Inc., supra, 66 Cal.App. 450, 226 P. 628.) In Toon, the attorney explained that he had endured several recent " 'changes in the personnel of his office force' " and that the relevant documents had been " 'inadvertently filed away' " before he saw them. (Id., at p. 453, 226 P. 628.) Although he did not identify the negligent employee or describe a set of office procedures that the employee failed to follow, the court found that the attorney "had no personal knowledge or notice of the service of the summons and complaint until after the default had been entered." (Id., at p. 455, 226 P. 628.) Therefore, in light of the absence of prejudice to the opposing party, the court in Toon reversed the trial court's order denying the motion for relief from default. (Id., at pp. 455-456, 226 P. 628.)

Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial court's exercise of discretion. (5 Witkin, op. cit. supra, §...