Elston v. City of Turlock

• Decision Date: 17 October 1983
• Citation: 148 Cal.App.3d 23,195 Cal.Rptr. 618
• Court: California Court of Appeals Court of Appeals
• Parties: Robert C. ELSTON et al., Plaintiffs and Appellants, v. CITY OF TURLOCK et al., Defendants and Respondents. Civ. 6831 (F000315), 6981 (F000382).

Page 618

195 Cal.Rptr. 618

148 Cal.App.3d 23

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

Civ. 6831 (F000315), 6981 (F000382).

Court of Appeal, Fifth District, California.

Oct. 17, 1983.

For Opinion on Hearing, see 211 Cal.Rptr. 416, 695 P.2d 713.

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

Martin, Crabtree, Schmidt & Zeff, Nan Cohan Jacobs and Thomas D. Zeff, Cardozo, Nickerson, Martelli, Curtis & Arata, Paul L. Martelli, Modesto, for defendants and respondents, Stanislaus County and City of Turlock.

Richard G. Rypinski, Gordon S. Baca, Ronald I. Harrison and Bruce M. Rosenthal, Sacramento, for defendant and respondent State of Cal.

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

OPINION

GEO. A. BROWN, Presiding Justice.

Plaintiffs in this personal injury action appeal from judgments of dismissal entered in favor of defendants City of Turlock, County of Stanislaus, Turlock Irrigation District and State of California. The appeals have been consolidated for disposition by this court. The dismissals were entered upon defendants' separate motions for summary judgment after the defendant County of Stanislaus' requests for admissions were deemed admitted by reason of plaintiffs' failure to answer them within the time permitted by Code of Civil Procedure section 2033, subdivision (a). The principal issue on this appeal is whether the trial court abused its discretion under Code of Civil Procedure section 473 by refusing to set aside plaintiffs' default.

The plaintiffs are husband and wife. The complaint alleges serious personal injuries to the husband as a result of an accident which occurred when his motorbike collided with another vehicle. Plaintiffs allege the defendant public entities created a dangerous condition at the location of the accident in that there were visual restrictions and obstructions at the scene.

On June 1, 1981, pursuant to Code of Civil Procedure section 2033, subdivision (a), ¹ defendant County of Stanislaus properly served six requests for admissions upon the plaintiffs. In compliance with section 2033, subdivision (a), the request contained in block letters, near the end thereof, the required notice regarding the consequence of failing to answer the requests for admissions within the time allowed.

The essence of these requests for admissions was that the defendant County of Stanislaus did not own, maintain or control the street where the accident occurred, and that the allegedly dangerous condition of the road was not created by the county nor did it have notice of the condition. The county also requested admissions that the intersection was not in a dangerous condition, that plaintiff's injuries were not proximately caused by the alleged dangerous condition, and that the injuries did not occur in a way which was reasonably foreseeable. The requests were not answered by plaintiffs within the 30 days allowed, nor was there a request for an extension of time in which to answer. On August 13, 73 days after the service of the requests, pursuant to section 2033 defendant County of Stanislaus sent a certified letter to plaintiffs' counsel formally notifying plaintiffs that the requests for admissions had been admitted by reason of the failure to answer them.

On August 21 plaintiffs filed a motion pursuant to Code of Civil Procedure section 473 to set aside their default for failure to timely answer the requests, attached to which was their response to the requests for admissions. The motion was supported by the declaration of plaintiffs' counsel, A.B. Canelo. The declaration stated:

"I am the attorney of record for plaintiffs and am duly licensed to practice law in the State of California.

"Shortly after June 1, 1981, I received in my office from Thomas Zeff, attorney for defendant, COUNTY OF STANISLAUS, Request for Admission and Interrogatories. Our office has been shorthanded in the number of attorneys here since two attorneys left earlier this summer. I have been extensively engaged in litigation and business matters and because of my mistake and inadvertence did not prepare a response to these Request for Admissions prior to July 1, 1981. On or about August 13, 1981 Mr. Zeff wrote to me and indicated these Request for Admissions had been deemed admitted. I immediately called Mr. Zeff and informed him of my predicament, apologized for any inconvenience my inadvertence may have caused and offered to send him responses immediately. [Defendant's counsel refused to set aside the default.]

"... Discovery in this case is yet to begin and I am unaware of any prejudice that defendant may suffer as a result of the short delay in providing them with response to Request for Admissions."

Attorney Canelo later executed a supplementary declaration which in relevant part stated:

"Because of the shorthandedness in our office the Request for Admissions became misplaced and I did not become aware of them until they were overdue."

The motion to set aside the default was denied. The defendants' ensuing motions for summary judgment were granted.

In 1977, the Legislature repealed former section 2033. (Stats.1977, ch. 500, § 2, p. 1631.) In 1978, the Legislature enacted the present section 2033. (Stats.1978, ch. 12, § 3, pp. 70-71.) Shortly thereafter, the section was amended. (Stats.1978, ch. 265, § 1, pp. 549-550.) The changes relevant here were: (1) to require that the requests for admissions contain notice of the consequences of failure to respond within the time allowed; (2) to extend the period for response from 20 days to 30 days; and (3) to change the procedure for imposing sanctions for failure to respond within the time allowed. Prior to the 1978 amendment, when a party failed to respond to a request for admissions within the period designated in the request or as extended by the trial court, the court was permitted (pursuant to Code of Civ.Proc., § 2034, subd. (a)) to issue an order either requiring that the party answer or deeming as admitted the matters for which admissions had been requested. (See Stats.1974, ch. 732, § 4, p. 1624.)

Since the 1978 amendment, when a party served with a request for admissions fails to respond or object within the period designated in the request or as extended by the trial court, the requesting party may serve written notice on the served party by certified or registered mail, return receipt requested, that the requests for admissions have been deemed admitted. Thus, the intervention of the court is no longer required. When matters are deemed to have been admitted due to failure to respond, the admittee's only avenue of relief is by way of a Code of Civil Procedure section 473 motion for mistake, inadvertence, surprise or excusable neglect. The motion must be made within 30 days after the party seeking the relief was served with the notice by certified or registered mail. In contrast, under prior law, the same relief could be sought for periods in excess of six months. (Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 744-745, 127 Cal.Rptr. 838.)

The effect of the 1978 amendment is to insure that a party from whom an admission is sought is fully aware of the consequences of failing to respond, while at the same time to discourage dilatory conduct of an attorney by providing for the immediate sanction of having requested admissions deemed admitted and by limiting application for relief from this sanction to 30 days from the serving of the second notice on a party who failed to respond to the original request.

In Billings v. Edwards (1981) 120 Cal.App.3d 238, 244, 174 Cal.Rptr. 722, the court, in explaining the reason for the 1978 amendment, stated:

"[I]t is also clear that the emergency legislation was designed to forcefully expedite a conclusion to this specific form of pretrial discovery. Early admissions of key facts or issues will inform all parties to the litigation of the merits of the case, and will hopefully lead to settlement or even dismissal of an action. Such a result is a positive step in alleviating the heavy case loads facing our courts, which is a problem of concern to the Legislature."

Adverting to the merits of the motion for relief, Code of Civil Procedure section 473 provides in pertinent part:

"The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect."

Recently, in Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775, the Supreme Court made clear that for the purpose of passing upon a section 473 motion, an attorney's neglect, including gross neglect, ² is imputed to his client and may not be offered by the latter as a basis for relief. (Id., at p. 898, 187 Cal.Rptr. 592, 654 P.2d 775.) The court observed "[t]he client's redress for inexcusable neglect by counsel is, of course, an action for malpractice. [Citations.]" (Ibid., fn. omitted.)

The court further observed, quoting from Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282, 75 Cal.Rptr. 848:

" 'The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. [Fn. omitted.] When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.' " (Carroll v. Abbott Laboratories, Inc., supra, 32...