Tobin v. Oris, s. B054742

• Decision Date: 19 February 1992
• Docket Number: B057240,Nos. B054742,s. B054742
• Court: California Court of Appeals Court of Appeals
• Parties: George TOBIN, Plaintiff and Respondent, v. Richard ORIS et al., Defendants and Appellants. Rich-Mil Investments, L.P., et al., Objectors and Appellants.

Page 736

4 Cal.Rptr.2d 736

3 Cal.App.4th 814

George TOBIN, Plaintiff and Respondent, v. Richard ORIS et al., Defendants and Appellants Rich-Mil Investments, L.P., et al., Objectors and Appellants.

Nos. B054742, B057240.

Court of Appeal, Second District, Division 3, California.

Feb. 19, 1992.

Review Denied June 11, 1992.

Selvin, Weiner & Ruben, Beryl Weiner and Russell W. Clampitt, Los Angeles, for defendants and appellants and for objectors and appellants.

Musick, Peeler & Garrett, Harry W.R. Chamberlain, II, Los Angeles, for objectors and appellants.

Herbert L. Michel, Jr., Los Angeles, for plaintiff and respondent.

CROSKEY, Associate Justice.

The defendants and appellants Richard Oris and Milly Oris (collectively the "Orises") appeal from a summary judgment entered on September 28, 1990, which awarded damages in excess of $1,000,000 to the plaintiff and respondent George Tobin (herein "Tobin"). Subsequently, on November 9, 1990, the trial court granted Tobin's motion to add as judgment debtors the appellants, the Richard Oris and Milly Oris Living Trust (herein the "Trust") and Rich-Mil Investments, L.P., a California limited partnership (herein "Rich-Mil"). Finally, the appellants, Selvin, Weiner & Ruben, Beryl Weiner and Russell W. Clampitt (current counsel for the Orises and hereinafter collectively "Selvin, Weiner") and Kenneth I. Persion and Kenneth I. Persion, Inc. (the prior counsel for the Orises and hereinafter collectively "Persion") appeal the imposition of certain sanction orders imposed by the trial court. ¹

The summary judgment was based entirely upon a prior order of the trial court directing that certain dispositive facts be deemed admitted pursuant to Code of Civil Procedure section 2033, subdivision (k). ² As we conclude that (1) the trial court erroneously construed and applied sections 1013a and 2033, subdivision (k), and (2) the "deemed admitted" order should not have been made, the summary judgment subsequently entered is without legal support. This conclusion necessarily compels reversal of not only the judgment, but also

the balance of the orders made by the trial court which are the subject of these consolidated appeals.

FACTUAL AND PROCEDURAL BACKGROUND

On November 20, 1987, Tobin filed a complaint against the Orises seeking compensation for damage to a commercial building which he owned in North Hollywood, California. The Orises owned property adjacent to Tobin and he alleged that, due to their negligence, rain water flowed from their property onto his, causing damage to his building and interrupting his business. ³

The Orises filed an answer in pro per in March of 1988 in which they denied the material allegations of Tobin's complaint and raised the affirmative defense that Tobin's damages were the "sole and exclusive result of his own actions; inactions and own negligence." Subsequently, in June of 1989 the Orises obtained leave to file a cross-complaint for indemnity and declaratory relief against the several parties who had been involved in the construction work on their property at the time of the damage to Tobin's building. By this time they had retained and were represented by attorney Persion.

On March 30, 1990, Tobin served on the Orises' counsel separate requests for admission in which he asked each of them to respond to 77 admission requests. ⁴ The responses were due to be served by May 5, 1990. However, the Orises' counsel, Persion, failed to serve the required responses by that date.

On May 15, 1990, Tobin filed a motion pursuant to section 2033, subdivision (k), to have 65 of the 77 requests deemed admitted. ⁵ Among the requests as to which Tobin sought such a ruling were five requests (Requests Nos. 52 through 56) which, if admitted, would eliminate any defense to Tobin's claim and would conclusively resolve the issue of the amount of the damages suffered. ⁶

This motion was opposed by the Orises. Such opposition included proposed joint responses to all of the requests, including Nos. 52 through 56 (the response to each of these critical requests was: "Denied"). The opposition documents, including the proposed responses, were served by mail on Tobin's counsel on May 24, 1990. ⁷ This date was approximately 20 days after the responses were due and nine days after Tobin's motion was filed. However, in serving these papers the Orises' counsel, Persion, failed to include the original responses and verifications to the requests as required by section 2033, subdivision (h).

The signature pages of the copies of the responses mailed by Persion were conformed only (i.e., the signature lines contained the symbol "/s/").

In reply, and in further support of his motion, Tobin argued in a supplemental memorandum to the trial court that the Orises had (1) failed to serve the original signed verifications and therefore had, in effect, served no responses, (2) filed a joint response rather than the separate response which he had requested ⁸ and (3) included unintelligible responses to three of the requests. ⁹

Orises' counsel responded to the verification issue by mailing the original signed responses to Tobin's counsel by certified mail on June 22, 1990. However, the original proof of service (dated May 24, 1990) for these documents was not replaced with a new one reflecting a June 22 posting. Nonetheless, Tobin conceded to the trial court and in his brief to this court that his counsel did in fact receive the original verified responses on June 25, 1990. This was a month before the hearing date on Tobin's motion.

On May 25, 1990, the trial court (pursuant to section 639, subdivision (e)), had ordered that all discovery matters be referred to the Honorable Jay R. Ballantyne (a retired Justice of the Court of Appeal, Fifth District; herein the "referee"). Tobin's motion to have the requests for admission deemed admitted was set for hearing before him on July 25, 1990. ¹⁰ Following the hearing, the referee recommended to the trial court that the motion be granted as to the 65 requests for admission set forth in the motion. Although he conceded that the Orises had in fact served responses to the requests for admission prior to the hearing, the referee concluded that they were inadequate and should be disregarded for the following three reasons:

1. The submitted responses "are unintelligible and force [Tobin] to speculate as to their meaning." For reasons which are not apparent, the referee did not limit this general characterization to the three of 77 responses which were cited in Tobin's motion (see fn. 9, ante );

2. The responses were served on May 24, 1990 without the required signed verifications; and

3. When the original verifications were subsequently served on June 22, 1990, the proof of service attached thereto falsely Based on these determinations, the referee recommended that all 65 requests for admissions be deemed admitted as requested by Tobin and that the Orises and their counsel be sanctioned in the amount of $1,500. ¹² The Orises filed a motion on August 1, 1990 to set aside the referee's report and such motion was set for hearing on August 24, 1990. However, without waiting to consider that motion, the trial court signed, on August 9, 1990, an order adopting the referee's findings and recommendations in full. ¹³

indicated that they had been mailed on May 24, 1990. The referee was not impressed with the Orises' explanation that the original proof of service had, through oversight, not been replaced with a new one, before the original verified responses were actually mailed on June 22. Relying on the provisions of section 1013a, subdivision (3), ¹¹ the referee concluded that since the post mark on the envelope (June 22) was more than one day after the date on the proof of [3 Cal.App.4th 822] service document (May 24), then the service was presumed invalid and, therefore, there had been no valid service by the Orises of verified responses and no justifiable excuse for their failure to do so.

Subsequently, on August 28, 1999, Tobin filed a motion for summary judgment which was entirely based on the matters deemed admitted, particularly the five dispositive requests (Nos. 52 through 56, see fn. 6, ante ). ¹⁴ This motion was opposed by the Orises who filed evidentiary declarations from themselves and certain expert witnesses (a structural engineer and an accountant) disputing both the issues of liability and damages. Tobin argued that the matters deemed admitted were binding on the Orises and were conclusive on these issues.

The trial court agreed with Tobin ¹⁵ and, on September 28, 1990, summary judgment was entered against the Orises and in favor of Tobin for the sum of $1,206,456, less offsets for settlements received from "joint tortfeasor defendants" in the amount of $257,500 "with prejudgment interest thereon from March 3, 1989 through September 28, 1990 in the amount of $149,233.07." ¹⁶

Subsequently, on November 9, 1990, on Tobin's motion, the Trust and Rich-Mil were added as judgment debtors. The court found that there was a unity of interest between the Orises and these two entities, and that there was no distinction between them. It concluded that "adherence to the fiction of a separate existence would promote injustice." (See § 187; Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 147-149, 198 Cal.Rptr. 457.)

It is from this summary judgment and the order of November 9, 1990, amending the judgment to add the Trust and Rich-Mil as judgment debtors, that the Orises, the Trust and Rich-Mil have filed this timely appeal. ¹⁷

In addition, the Orises, and their counsel, also appeal from three other orders made by the trial court:

1. On September 28, 1990, the trial court imposed a sanction of $5,000 on the "defendants and/or their counsel" under section 128.5. ¹⁸ This sanction was apparently for bringing two motions under sections 473 and 1008 to set aside the referee's report previously approved by the court on August 9, 1990....