Gribin Von Dyl & Associates, Inc. v. Kovalsky

• Decision Date: 17 September 1986
• Court: California Court of Appeals Court of Appeals
• Parties: GRIBIN VON DYL & ASSOCIATES, INC., Plaintiff and Respondent, v. Irving KOVALSKY, Defendant and Appellant. B019147.

Page 50

230 Cal.Rptr. 50

185 Cal.App.3d 653

GRIBIN VON DYL & ASSOCIATES, INC., Plaintiff and Respondent, v. Irving KOVALSKY, Defendant and Appellant.

B019147.

Court of Appeal, Second District, Division 7, California.

Sept. 17, 1986.

[185 Cal.App.3d 656]

Harold B. Bernson, Santa Monica, for defendant and appellant

Levin, Ballin, Plotkin & Zimring, Jay J. Plotkin and Nancy O. Marutani, North Hollywood, for plaintiff and respondent.

LILLIE, Presiding Justice.

Defendant Irving Kovalsky appeals from summary judgment entered against him and in favor of plaintiff Gribin Von Dyl & Associates, Inc. in an action to recover a real estate broker's commission.

FACTUAL AND PROCEDURAL BACKGROUND

The verified complaint alleged: On November 16, 1981, the parties entered into a written agreement whereby defendant employed plaintiff, a licensed real estate broker, to sell condominium units owned by defendant. The agreement gave plaintiff the exclusive right to sell all but eight of said units, the excluded units to be designated by defendant, for the period July 14, 1981--July 13, 1982; plaintiff was to receive a commission of one and a half percent of the sales price of each unit subject to the agreement for which plaintiff produced a buyer willing and able to purchase on the terms prescribed by defendant; defendant was to install billboard signs advertising the units. Prior to December 20, 1981, plaintiff made diligent efforts to sell the units and otherwise performed all of its obligations under the agreement. On December 15, 1981 defendant, who controlled the sales prices and financing charges for sale of the units, raised those prices and charges to a level which was unreasonable and in excess of prevailing real estate market conditions. Such action on defendant's part violated the covenant of good faith and fair dealing implied in the agreement and made sale of the units unfeasible, thereby depriving plaintiff of the ability and opportunity to sell them. Defendant breached the agreement by raising the sales prices and financing charges for the units, by failing to designate those units not subject to the agreement, and by failing to install billboards. On December 17, 1981, plaintiff advised defendant that it was terminating the agreement because of such breaches. Defendant thereafter advertised the units at the lower prices and financing charges at which they had been offered before December 15. Plaintiff sought an accounting of sales of the units for the period December 17, 1981--July 13, 1982, and a judgment for the commissions due plaintiff based on such sales.

[185 Cal.App.3d 657] By verified answer defendant denied the allegations of the complaint.

Thereafter, on February 15, 1984, plaintiff served on defendant a request that he admit the truth of virtually all of the facts alleged in the complaint within 30 days from the date of service; at the end of the request was the required warning that if defendant failed to comply with the provisions of Code of Civil Procedure section 2033, ¹ each of the matters of which an admission was requested would be deemed admitted. Within the 30-day period defendant neither answered the request nor filed objections thereto. Accordingly, on March 22, 1984, plaintiff served on defendant (by certified mail, return receipt requested) notice that the truth of the facts set forth in the request was deemed admitted. ( § 2033.) On April 6, 1984, defendant served a response to the request which consisted of his denial of each of the matters set forth in the request. By letter of April 11, 1984, plaintiff's counsel informed defendant's counsel that the purported response was rejected.

In August 1985 plaintiff moved for summary judgment. The motion was supported by declarations, documents produced by defendant in response to plaintiff's request, the deemed admissions, and a separate statement of undisputed facts. Defendant opposed the motion based on declarations, his verified answer to the complaint, his answers to interrogatories, and his response to request for admissions. Included in defendant's memorandum of points and authorities in opposition to the motion was a request that the trial court "allow the filing nunc pro tunc, as of April 6, 1984," of defendant's response to request for admissions.

Summary judgment was entered in favor of plaintiff and against defendant for $14,295 plus interest thereon of $3,428.39, for a total of $17,723.39, plus costs of $2,958. This appeal followed.

DISCUSSION

I DENIAL OF RELIEF FROM DEEMED ADMISSIONS

While the trial court did not expressly rule on defendant's request that the court consider as timely the service of his response to request for admissions, the judgment indicates that the request was denied. ²

[185 Cal.App.3d 658] In support of such request, defendant cited the following provisions of section 2033, subd. (a): " ... Each of the matters of which an admission is requested shall be deemed admitted ... unless, within the period designated in the request, not less than 30 days after service thereof or within a shorter time as the court may allow for good cause on motion and notice to the party to whom the request is directed or within such longer time as the court may allow for good cause and with or without notice, but in no event later than 60 days prior to the date of trial, the party to whom the request is directed serves upon the party requesting the admission ... (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...." (Emphasis added.) Relying on the underscored language, defendant argued that inasmuch as the case was not set for trial, the court should consider as timely defendant's response to request for admissions, served on plaintiff April 6, 1984. Such argument lacked merit and was properly rejected by the trial court. The phrase "in no event later than 60 days prior to the date of trial" in section 2033 limits the length of the extension which may be granted for service of response to request for admissions; it does not authorize the court to grant such an extension at any time before commencement of the 60-day period. "[W]here a statute absolutely fixes the time within which an act is to be done it is peremptory and the act cannot be done at any other time unless during the existence of the prescribed time the time has been extended by an order made for that purpose under authority of law. [Citations.]" (Ursino v. Superior Court (1974) 39 Cal.App.3d 611, 619, 114 Cal.Rptr. 404; emphasis added.) Under section 2033 defendant's request to consider as timely his response to request for admissions, made more than a year after expiration of the 30-day period for response designated in the request, came too late and the court was without power to grant such relief.

Where, as in the present case, matters are deemed to have been admitted pursuant to notice served on a party following his failure timely to respond to a request

for admissions, the only avenue of relief is that which is specified in section 2033, ³ viz., a motion under section 473 made within 30 days after the party seeking relief was served with the deemed admitted notice. (Barnett v. American-Cal Medical Services (1984) 156 [185 Cal.App.3d 659] Cal.App.3d 260, 265, 202 Cal.Rptr. 735.) At no time did defendant move for relief from the effect of his deemed admissions under section 473. He argues that the trial court abused its discretion in failing to grant relief pursuant to its inherent equity power exercisable where a default was taken through extrinsic fraud or mistake. (See Billings v. Edwards (1981) 120 Cal.App.3d 238, 245, 174 Cal.Rptr. 722; Dolin Roofing & Insulation Co. v. Superior Court (1984) 151 Cal.App.3d 886, 890, fn. 2, 199 Cal.Rptr. 37.) Nowhere in his points and authorities in opposition to the motion for summary judgment did defendant invoke the court's inherent equity power to relieve him from the consequences of his deemed admissions. Instead, defendant argued that his belated response to the request for admissions, together with his declaration in opposition to the motion, his answers to interrogatories and his verified answer to the complaint, raised triable issues of material fact which precluded entry of summary judgment

The only indication that defendant sought relief from the deemed admissions is found in the declaration of Sanford Perliss, a law clerk for defendant's attorney, wherein the declarant stated: "I had at all times believed and do now believe that Ms. Marutani, of plaintiff's attorney's office, had agreed to disregard her notice that all requested facts were deemed admitted in light of our good faith attempt to answer the voluminous written discovery matters then pending as revealed in the correspondence contained in exhibits hereto and my several telephone conversations with her." Defendant contends the foregoing excerpt from Perliss' declaration establishes that plaintiff's attorney deceived defendant into believing that his late response to request for admissions was accepted. We do not agree. In reply to defendant's opposition to the motion for summary judgment, plaintiff submitted the declaration of its attorney Nancy Marutani stating that while she extended professional courtesies to Mr. Perliss during the course of discovery, she never led him to believe that plaintiff would accept defendant's late response to request for admissions; in fact, she sent a letter to Perliss expressly rejecting the proposed response as untimely ⁴ and in a subsequent telephone conversation called Perliss' attention to the fact that time for seeking relief from the deemed admissions was running out. Inasmuch as there was a substantial conflict in the facts stated in the respective declarations, we are bound by the trial court's implied finding that plaintiff did not lead defendant to believe his...