Preview
Order Issued
3n Submitted Matter
F
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA ILE
DEPARTMENT 20
FEB 1/7 2029
161 North First Street, San Jose, CA 95113
408.882.2320 408.882.2296 (fax) Clerk of the Court
smanoukian@scscourt.org Superist Gaunt 6f Géuiity 6! Ganta Clare
http//www.scscourt.org EPUTY
(For Clerk's Use Only)
CASE NO.:16CV300096 Velocity Investments, LLC v. Maria Canul
18CV338986 Velocity Investments, LLC v. Eva Pascual
DATE: 7 July 2020 TIME: 9:00 am LINE NUMBER: 7, 8
Orders on Motion of Cross-Defendant Velocity Investments, LLC
to Set Aside Deemed Admissions.
I Statement of Facts.
Apart from the dates of filing of the two debt collection complaints instituting the cases, the facts of the two
cases and filings on this matter are substantively identical. In their briefs opposing the Plaintiffs motion, both
Defendants incorporated the statement of facts prepared by the Plaintiff in its memoranda in support of its motion.
The relevant facts are briefly stated with an applicable chronology:
Plaintiff Velocity Investments, LLC, separately filed debt collection complaints against both Defendants.
Plaintiff was represented at the time of the filing of the two lawsuits by FarMar Law Group, P.C. (“FarMar’).
20 September 2016: The complaint against Ms. Canul was filed.
10 December 2018: The complaint against Ms. Pascual was filed.
19 February 2019: both Defendants answered the complaints and separately filed cross-complaints
alleging Plaintiffs debt collection actions violated the Fair Debt Buying Practices Act (Civil Code, § 1788 et seq.).
On the same day, both Defendants’ counsel also served FarMar various discovery requests, including a set of 28
fequests for admission (“Requests for Admission (Set One)").
26 March 2019; The responses to the discovery were due. Neither the Plaintiff nor its counsel FarMar
Tesponded to the requests by that deadline,
20 April 2019: Both Defendants’ counsel asserts there was an abortive attempt to meet and confer with
FarMar to obtain belated discovery responses.
2 May 2019: Defendants’ counsel then filed a Request for Default on grounds of Plaintiff's failure to respond
to the cross-complaint.
7 May 2049: Defendants’ counsel filed several discovery motions on the same grounds of failure, including
a Motion to Deem Unanswered Admissions as Admitted.
41 July 2019: The Court adapted tentative orders granting Defendants’ discovery motions, including the
Moticn to Deem Unanswered Admissions as Admitted.
7 July 2020 Order on Motion of Cross-Defendant Page1 of6
Velocity Investments, LLC
to Set Aside Deemed Admissions.
6 August 2019: Plaintiff replaced FarMar by substituting Chapman, Glucksman, Dean & Roeb APC as
counsel of record ("Plaintiffs new counsel’). Plaintiffs new counsel also filed a motion to strike or set aside default in
favor of Defendants.
10 September 2019: The Court granted the motion of cross defendant to strike the request for entry of
Gefault/set aside default.
25 September 2019: Plaintiffs/Cross-Defendant’s new counsel then filed answers to the cross-complaints.
6 March 2020: After conferring with Defendants’ counsel regarding outstanding responses and document
production requests, Plaintiffs new counsel served responses to outstanding interrogatories and document
production requests. Additionally, citing that the Plaintiff could not unequivocally admit several of the deemed
admissions, Plaintiff's new counsel prepared responses to Defendants’ Requests for Admission (Set One).
I. Motion to Set Aside Deemed Admissions.
23 March 2020: Piaintiffs/Cross-Defendant’s counsel filed the present motion seeking relief fram the order
deeming unanswered admissions as admitted.
I. Analysis.
Plaintiff seeks relief under Code of Civil Procedure, § 2033.300, which governs the withdrawal of or
amendment to admissions in discovery proceedings. In its entirety, § 2033.300 states:
(a) 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.
(b) The court may permit withdrawal or amendment of an admission only if it determines that
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, the following:
(1) An order that the party who obtained the admission be permitted to pursue additional discovery
Telated to the matter involved in the withdrawn or amended admission.
(2) An order that the costs of any additional discovery be borne in whole or in part by the party
withdrawing or amending the admission.
Plaintiff correctly notes that § 2033.300, as limited by subdivision (a) therein, applies to deemed admissions.
(Wilcox v. Birtwhistle (1999) 21 Cal.4" 973.) Accordingly, in order for the Court to grant relief under § 2033.300,
Plaintiff must satisfy both requirements in § 2033.300, subdivision (b): Plaintiff must show that:
1) the deemed admissions were “the result of mistake, inadvertence, or excusable neglect”; and
2) the Defendants “will not be substantially prejudiced in maintaining” their cross-complaints on the merits,
“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300
must be resolved in favor of the party seeking relief.” (New Albertsons, Inc. v. Superior Court (2008) 168
Cai.App.4 1403, 1420.)
‘The declaration of Molshree Gupta in support of this motion states that on August 6, 2019, Cross-Defendants substituted
Chapman Glucksman Dean & Roeb APC as counsel of record. On the same date, Cross-Defendant, by and through FarMar,
dismissed the debt collection complaint without prejudice. Nothing on either docket reflects that either action was dismissed on
this date.
7 July 2020 Order on Motion of Cross-Defendant Page 2 of 6
Velocity Investments, LLC
to Set Aside Deemed Admissions.
A PfaintiffiCross-Defendant Does Not Meets Its Burden to Show the Neglect or Mistake on the
Part of Its Former or Current Counsel Was Excusable.
Plaintiff correctly notes that as the language “mistake, inadvertence, or excusable neglect” in § 2033.300,
subdivision (b) is near-identical to Code of Civil Procedure, § 473, subdivision (b), the Legislature “intended
‘mistake, inadvertence, or excusable neglect’ to have the same meaning” across both statutory sections. (New
Albertsons, Inc., supra, 168 Cal.App.4" at 1419.) “The Legislature apparently intended to employ the same
standard for relief from defaults as used in section 473 for failure to serve a timely response to a discovery demand.”
(City of Fresno v. Superior Court (1988) 205 Cal. App.3d 1459, 1467.) Therefore, a showing that the mistake,
inadvertence, or neglect is excusable under § 473, subdivision (b), would similarly satisfy the first requirement of §
2033,300, subdivision (b).
In applying § 473, subdivision (b)’s standard, however, the Court remains cognizant of the Legislature’s
intent, in enacting § 2033.300 as part of the 1986 Civil Discovery Act's comprehensive revision of civil discovery
procedure, “that henceforth this subdivision, and not [Code of Civil Procedure,] § 473, will apply to this form of
discovery default.” (City of Fresno, 205 Cal.App.3d at 1466-67.)
In relevant part, Code of Civil Procedure, § 473(b), reads:
“The court may, upon any terms as may be just, relieve a party or his or her legal
Tepresentative from a judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief
shall be accompanied by a copy of the answer or other pleading proposed to be filed therein... .
and shall be made within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken . . . . Notwithstanding any other requirements of this
section, the court shall, whenever an application for relief is made no more than six months after
entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting
to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by
the clerk against his or he client . .. or (2) resulting default judgment or dismissal entered against
his or her client, unless the court finds that the default or dismissal was not in fact caused by the
attorney's mistake, inadvertence, surprise, or neglect... .
There are two ways to secure relief under § 473, subdivision (b): (1) properly filing an application for relief,
with an attomey’s sworn affidavit attesting to their mistake, inadvertence, surprise, or neglect, within six months after
entry of the adverse decision, upon which the court is required te grant relief, i.e., a mandatory relief provision; or {2)
properly filing an application for relief, with the proposed substitute admissions, within six months after entry of the
adverse decision, upon which the court may grant relief, i.e., a discretionary relief provision. (See also Even Zohar
Construction & Remodeling, inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4” 830, 838-39.)
In submitting its motion for relief, Plaintiff has attached a declaration by an attorney from their new counsel
of record (“Gupta Declaration’) and copies of their proposed substitute responses to Defendants’ Requests for
Admission (Set One) in what appears to be an attempt to satisfy both relief provisions.
1 The Gupta Declaration re “Fault.”
“fn determining whether the attorney's mistake or inadvertence was excusable, ‘the court inquires whether
“a reasonably prudent person under the same r similar circumstances might have made the same error.” (Zamora v.
Glayborn Contracting Group, inc. (2002) 28 Cal.4" 249, 258.)
The Gupta declaration contains no admission of mistake or neglect, ar any clarifying information or
explanation that supports afinding that the deemed admissions order was actually caused by mistake or neglect on
the part of Plaintiff's former or current counsel.
{13 of the Gupta declaration states that “Cross-Complainant Has Represented to this Court that Cross-
Defendant failed to respond to these discovery requests by the response deadline of March 26, 2019. Crass-
Complainant has also represented to this Court that her counsel attempted to meet and confer with FarMar to obtain
the belated discovery responses on April 20, 2019.”
7 July 2020 Order on Motion of Cross-Defendant Page 3 of 6
Velocity Investments, LLC
to Set Aside Deemed Admissions.
Plaintiff accordingly argues that since it has filed “a mea culpa declaration by an attorney establishing that
[the deemed admissions order] was entered . . . as the result of attorney neglect,” this Court is, per § 473, subdivision
(b)'s mandatory relief provision, ‘deprive(d] . . . of discretion to deny relief, even without a showing that the neglect
was excusable.” {Tackett v. City of Huntington Beach (1994) 22 Cal.App.4 60, 65.) Notwithstanding the plain
construction of§ 2033.300, subdivision (b) as a discretionary relief provision simifarto the discretionary relief
provision of § 473, subdivision (b), or that § 473 “still requires that an attorney's neglect be excusable before relief
can be granted under [the mandatory relief] provision” when the “aggrieved party is not challenging a default, default
judgment, or dismissal” (Tackett, supra, 22 Cal.App.4th at 65), this argument falls on the grounds that there is no
mea culpa contained in the Gupta Declaration.
The Plaintiffs Memorandum of Points And Authorities states the deemed admissions order “was a result of
its counsel's excusable neglect and mistake.” The Gupta Declaration instead merely restates the statement of facts
and the Plaintiffs discovery of the “necessity to set aside the deemed admission.”
Nowhere in the two-page Gupta Declaration is there any admission of neglect or mistake on the part of
Plaintiffs current or former counsel. Nor is there any clarifying information or explanation for FarMar's failure to
respond to Defendants’ Requests for Admission (Set One), the lack of opposition to the Defendants’ motion for
deemed admissions that was ultimately granted by the Court, the six months between substitution of Plaintiffs new
counsel and service of outstanding discovery requests, or the three month delay between service of outstanding
discovery requests and the filing of this motion,
Considering the totality of the circumstances from an objective point of view, The Gupta Declaration offers
nothing in support of a finding that “default was actually caused by the attorney's mistake, inadvertence, .
neglect.” (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 256 (emphasis added).) Absent an actual
mea culpa from Plaintiffs former or current counsel, this Court cannot find that the deemed admissions were actually
caused by attorney neglect and mistake to satisfy the requirements of § 473, subdivision (b)'s mandatory relief
provision.
2 The Absence of Any Clarifying Information or Explanation regarding the Claimed
Neglect and Mistake Was Excusable.
The Court now tums to § 473, subdivision (b)'s discretionary relief provision, under which Plaintiff has filed
its substitute responses to Defendants’ Requests for Admission (Set One). As noted supra, § 2033.300, subdivision
(b) is constructed as a discretionary relief provision similar to § 473, subdivision (b)'s discretionary relief provision,
with the specified first requirement that this Court “determine[] that admission was the result of mistake, inadvertence,
or excusable neglect” before permitting withdrawal and amendment of an admission. In determining whether
Piaintif?s counsel's mistake or neglect was excusable, the Court considers “(1) the nature of the mistake or neglect;
and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Tackett, supra, 22
Cal.App.4th at 65 (quoting Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276).)
In reiterating Bettencourt's analysis for excusability, the Supreme Court has elaborated that “the court
inquires whelher “a reasonably prudent person under the same or similar circumstances” might have made the same
error.’ (Bettencourt v. Los Rios Community Colfege Dist. (1986) 42 Cal.3d 270, 276),) In other words, the
discretionary relief provision . . . only permits relief from attomey error ‘fairly imputable to the client, i.e., mistakes
anyone could have made.’ [Citation omitted.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249,
258.)
Owing to the same deficiencies of the Gupta Declaration as detailed, and the lack of any other material from
the Plaintiff's submissions that offers clarification or explanation of the circumstances surrounding the nonresponses
by Plaintiff's former counsel, the delay in responses by Plaintiff's current counsel, and the Plaintiff's own conduct
regarding the matters, this Court cannot ascertain whethera reasonably prudent person under the same or similar
circumstances might have made the neglect and mistake claimed by Plaintiff, through its current counsel, in the
present motion, and accordingly cannot find the neglect and mistake to be excusable.
“Itis impossible fora court to characterize neglect as excusable when the attomey has not described what
the neglect was.” (Tackett, 22 Cal.App.4" at 66.)
7July 2020 Order on Motion of Cross-Defendant Page 4 of 6
Velocity Investments, LLC
to Set Aside Deemed Admissions.
3 Diligence and “Six Months.”
As for ‘whether counsel was otherwise diligent in investigating and pursuing the claim,” the Court notes at
the outset that § 2033.300, subdivision (b) lacks any specific time limit or deadline from the entry of the adverse
decision for an aggrieved party to seek relief.
However, the similarities in the language and construction of§ 2033.300, subdivision (b) and § 473,
subdivision (b)'s discretionary relief provision, along with the Legislature's intent to “employ the same standard for
relief from defaults as used in section 473 for failure to serve a timely response to a discovery demand” (City of
Fresno, 205 Cal.App.3d at 1467), counsel's applying Beftencourt’s diligence analysis consistent with other cases
interpreting § 473, subdivision (b)'s discretionary relief provision. The Supreme Court has reiterated that “[t]he party
seeking relief under section 473 must also be diligent. [Citation omitted.] Thus an application for relief must be made
‘within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.” (Zamora, supra, 28 Cal.4th at 258.)
As the statement of facts and the Gupta Declaration submitted by the Plaintiff plainly lay out, the Defendants
filed their cross-complaints and served the Requests for Admission (Set One), among other discovery requests, on
19 February 2019. Plaintiff, then represented by FarMar, did not respond to the requests by the 26 March 2019
deadline or meet and confer with Defendants’ counsel in April, leading to Defendants’ motion for the deemed
admissions on 7 May 2019.
Another month passed before the Court granted the motion on 6 June 2019. By the time Plaintiff substituted
new counsel in August 2019, nearly six months had elapsed. After the Court set aside default against Plaintiff on 10
September 2019, answers to the cross-complaints were filed on 25 September 2019.
Another six months then passed, during which Plaintiff's new counsel “discovered the necessity to set aside
the deemed admission,” before responses to Defendants’ outstanding interrogatories and document production
requests were served on 6 March 2020.
The present motion was then filed on 23 March 2020, over nine months after the order granting Defendants’
motion for deemed admissions was issued.
4. Prejudice to Defendants/Cross-complainants.
As noted above, in order for the Court to grant relief under § 2033.300, in order to comply with Code of
Civil Procedure, § 2033.300(b), Plaintiff/Cross-Defendant must not show that the deemed admissions were “the
result of mistake, inadvertence, or excusable neglect.” Plaintiff/Cross-Defendant must also show that the
Defendants/cross-complainants “will not be substantially prejudiced in maintaining” their cross-complaints on the
merits,
In fact, neither party referred to any prejudice caused by the failure to properly respond to the requests for
admissions when served or to the delay in the bringing of this motion.
Since the Court believes that velocity failed to make a prima facie showing for excusable neglect, there Is no
further reason to comment on what prejudice, if any, befell to the defendant/cross-complainants.
5 This Court Cannot Find Good Cause to Grant the Motion For Relief.
While “delay alone without a showing of substantial prejudice cannot justify the denial of a motion under [§
2033.300]" (New Albertsons, Inc., 168 Cal.App.4" at 1421), ‘[t]he court must generally consider the facts and
circumstances of a case to determine whether the party was diligent in seeking relief, and whether the reasons given
for the party's mistake are satisfactory.” (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 255
{internal citations omitted).) Such delay exceeding the contours of reasonableness as set forth by the Supreme
Court, coupled with the Plaintiffs failure to meet its “burden to show that the mistake, inadvertence, . . . or neglect
was excusable” (Zamora, 28 Cal.4th at 258), or to even present information required for this Court to begin to
ascertain whether the mistake and neglect was excusable, is grounds enough for denial of Plaintiff's motion for relief.
7 July 2020 Order on Motion of Cross-Defendant Page 5 of 6
Velocity Investments, LLC
to Set Aside Deemed Admissions.
As Defendants note in their briefs in opposition to Plaintiff's motion, it is the rule that “[cJonduct falling below
the professional standard of care, such as failure to timely object or to properly advance an argument, is not
excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and eviscerate
the concept of attorney malpractice. [Citation omitted]’ (Zamora, supra, 28 Cal.4* at 258 (internal quotation marks
omitted).)?
“Further, the press of an attorney's practice would not warrant relief. [Citations omitted ]" (City of Fresno,
supra, 205 Cal.App.3d at 14673; accord, Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275,
281 (“Unusual pressure of business by itself is not a legitimate excuse either for granting relief . . . or for delay in
seeking timely relief from default. [Citations omitted.]"}.)
The Court need not subscribe to the theory that the conduct of Plaintiff's counsel, current and former, arose
out of either “conduct falling below the professional standard of care” or the “unusual pressure of business” in order
to deny Plaintiff's motion for relief under § 2033.300. As the exact nature of the cause and extent of the neglect and
mistake remain unidentified and unexplained by the Plaintiff in its submissions to the Court, the Court cannot rule out
other circumstances or theories which may possibly qualify for relief under § 473 or § 2033.300-a clear indication of
the Plaintiff's failure to meet its burden of showing the claimed neglect and mistake was excusable.
Again, as “[i]t is impossible for a court to characterize neglect as excusable when the attorney has not
described what the neglect was” (Tackett, 22 Cal.App.4" at 66), the Court finds, as the Defendants argue in their
briefs in opposition, that Plaintiff has “failed to prove threshold matters necessary to the relief sought.”
In finding that the Plaintiff has not met its burden of demonstrating the claimed neglect and mistake on the
part of its counsel, and thus is not entitled to relief under § 2033.300, the Court acknowledges the complex and
extended nature of the procedural history of the cross-complaints, including the substitution of Plaintiff's counsel.
But absent any clarifying information or explanation regarding the circumstances underlying the Plaintiff's
failure to timely respond to Defendants’ Requests for Admission {Set One), the Court cannot determine the deemed
admissions were actually caused by the neglect and mistake on the part of Plaintiffs former or current counsel. Nor
can the Court consider excusing neglect and mistake that is not adequately described in any of the Plaintiff's
submissions in support of its motion.
I Conclusion and Order.
Plaintiff's/Cross-Defendant's Velocity Investments, LLC's motion for relief from the June 6, 2019 order
granting Defendants’ motion to deem unanswered admissions as admitted is DENIED.
17 February 2021
DATED: HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
2 See also Lang v. Hochman (2000) 77 Cal.App.4th 1225 (quoting Garcia v. Hejmadi (1997.) 58 Cal.App.4" 674, 682;
TransitAds, Inc. v. Tanner Motor Livery, Ltd (1969) 270 Cal. App.2d 275; Huh v. Wang (2007)158 Cal App.4" 1406, 1423.)
3“As the judge observed in denying petitioner's motion for relief: ‘[If] we are going to simply find that being busy, or not fully
understanding the provisions of a code section, or whatever it is, constitutes excusable neglect, why, you know, we just don't
have any rules.” (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467.)
7 July 2020 Order on Motion of Cross-Defendant Page 6 of6
Velocity Investments, LLC
to Set Aside Deemed Admissions.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
a] DOWNTOWN COURTHOUSE
191 NorTH FirsT STREET
E
SAN JOSE, CALIFORNIA 95113
eon CIVIL DIVISION Le
FEB 1 7 2026
RE: Velocity Investments, LLC v. Canul Clerk of,the Court
Superior Gaunt of inty of Santa Clara
Case Number: 16CV300096 BY. EPUTY
PROOF OF SERVICE
ORDERS ON MOTION OF CROSS-DEFENDANT VELOCITY INVESTMENTS, LLC TO SET ASIDE DEEMED
ADMISSIONS was delivered to the parties listed below the above entitled case as set forth in the sworn
declaration below.
If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with
Disabilities Act, please contact the Court Administrator's office at (408) 862-2700, or use the Court's TDD line (408) 882-2680 or the
Voice/TDD California Relay Service (800) 735-2922,
DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to
each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose,
GA on February 17, 2021. CLERK OF THE COURT, by Hientrang Tranthien, Deputy.
ce: Fred W Schwinn Consumer Law Center Inc 1435 Koll Circle Ste 104 San Jose CA 95112
Molshree Gupta Chapman Glucksman Dean Roeb & Barger 11900 West Olympic Boulevard Suite 800 LOS
ANGELES CA 90064-0704
Gregory Karl Sabo 11900 W Olympic Blvd #800 Los Angeles CA 90064-1199
CW-9027 REV 12/08/16 PROOF OF SERVICE
Preview
Order Issued 3n Submitted Matter F SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA ILE DEPARTMENT 20 FEB 1/7 2029 161 North First Street, San Jose, CA 95113 408.882.2320 408.882.2296 (fax) Clerk of the Court smanoukian@scscourt.org Superist Gaunt 6f Géuiity 6! Ganta Clare http//www.scscourt.org EPUTY (For Clerk's Use Only) CASE NO.:16CV300096 Velocity Investments, LLC v. Maria Canul 18CV338986 Velocity Investments, LLC v. Eva Pascual DATE: 7 July 2020 TIME: 9:00 am LINE NUMBER: 7, 8 Orders on Motion of Cross-Defendant Velocity Investments, LLC to Set Aside Deemed Admissions. I Statement of Facts. Apart from the dates of filing of the two debt collection complaints instituting the cases, the facts of the two cases and filings on this matter are substantively identical. In their briefs opposing the Plaintiffs motion, both Defendants incorporated the statement of facts prepared by the Plaintiff in its memoranda in support of its motion. The relevant facts are briefly stated with an applicable chronology: Plaintiff Velocity Investments, LLC, separately filed debt collection complaints against both Defendants. Plaintiff was represented at the time of the filing of the two lawsuits by FarMar Law Group, P.C. (“FarMar’). 20 September 2016: The complaint against Ms. Canul was filed. 10 December 2018: The complaint against Ms. Pascual was filed. 19 February 2019: both Defendants answered the complaints and separately filed cross-complaints alleging Plaintiffs debt collection actions violated the Fair Debt Buying Practices Act (Civil Code, § 1788 et seq.). On the same day, both Defendants’ counsel also served FarMar various discovery requests, including a set of 28 fequests for admission (“Requests for Admission (Set One)"). 26 March 2019; The responses to the discovery were due. Neither the Plaintiff nor its counsel FarMar Tesponded to the requests by that deadline, 20 April 2019: Both Defendants’ counsel asserts there was an abortive attempt to meet and confer with FarMar to obtain belated discovery responses. 2 May 2019: Defendants’ counsel then filed a Request for Default on grounds of Plaintiff's failure to respond to the cross-complaint. 7 May 2049: Defendants’ counsel filed several discovery motions on the same grounds of failure, including a Motion to Deem Unanswered Admissions as Admitted. 41 July 2019: The Court adapted tentative orders granting Defendants’ discovery motions, including the Moticn to Deem Unanswered Admissions as Admitted. 7 July 2020 Order on Motion of Cross-Defendant Page1 of6 Velocity Investments, LLC to Set Aside Deemed Admissions. 6 August 2019: Plaintiff replaced FarMar by substituting Chapman, Glucksman, Dean & Roeb APC as counsel of record ("Plaintiffs new counsel’). Plaintiffs new counsel also filed a motion to strike or set aside default in favor of Defendants. 10 September 2019: The Court granted the motion of cross defendant to strike the request for entry of Gefault/set aside default. 25 September 2019: Plaintiffs/Cross-Defendant’s new counsel then filed answers to the cross-complaints. 6 March 2020: After conferring with Defendants’ counsel regarding outstanding responses and document production requests, Plaintiffs new counsel served responses to outstanding interrogatories and document production requests. Additionally, citing that the Plaintiff could not unequivocally admit several of the deemed admissions, Plaintiff's new counsel prepared responses to Defendants’ Requests for Admission (Set One). I. Motion to Set Aside Deemed Admissions. 23 March 2020: Piaintiffs/Cross-Defendant’s counsel filed the present motion seeking relief fram the order deeming unanswered admissions as admitted. I. Analysis. Plaintiff seeks relief under Code of Civil Procedure, § 2033.300, which governs the withdrawal of or amendment to admissions in discovery proceedings. In its entirety, § 2033.300 states: (a) 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. (b) The court may permit withdrawal or amendment of an admission only if it determines that 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, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery Telated to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission. Plaintiff correctly notes that § 2033.300, as limited by subdivision (a) therein, applies to deemed admissions. (Wilcox v. Birtwhistle (1999) 21 Cal.4" 973.) Accordingly, in order for the Court to grant relief under § 2033.300, Plaintiff must satisfy both requirements in § 2033.300, subdivision (b): Plaintiff must show that: 1) the deemed admissions were “the result of mistake, inadvertence, or excusable neglect”; and 2) the Defendants “will not be substantially prejudiced in maintaining” their cross-complaints on the merits, “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cai.App.4 1403, 1420.) ‘The declaration of Molshree Gupta in support of this motion states that on August 6, 2019, Cross-Defendants substituted Chapman Glucksman Dean & Roeb APC as counsel of record. On the same date, Cross-Defendant, by and through FarMar, dismissed the debt collection complaint without prejudice. Nothing on either docket reflects that either action was dismissed on this date. 7 July 2020 Order on Motion of Cross-Defendant Page 2 of 6 Velocity Investments, LLC to Set Aside Deemed Admissions. A PfaintiffiCross-Defendant Does Not Meets Its Burden to Show the Neglect or Mistake on the Part of Its Former or Current Counsel Was Excusable. Plaintiff correctly notes that as the language “mistake, inadvertence, or excusable neglect” in § 2033.300, subdivision (b) is near-identical to Code of Civil Procedure, § 473, subdivision (b), the Legislature “intended ‘mistake, inadvertence, or excusable neglect’ to have the same meaning” across both statutory sections. (New Albertsons, Inc., supra, 168 Cal.App.4" at 1419.) “The Legislature apparently intended to employ the same standard for relief from defaults as used in section 473 for failure to serve a timely response to a discovery demand.” (City of Fresno v. Superior Court (1988) 205 Cal. App.3d 1459, 1467.) Therefore, a showing that the mistake, inadvertence, or neglect is excusable under § 473, subdivision (b), would similarly satisfy the first requirement of § 2033,300, subdivision (b). In applying § 473, subdivision (b)’s standard, however, the Court remains cognizant of the Legislature’s intent, in enacting § 2033.300 as part of the 1986 Civil Discovery Act's comprehensive revision of civil discovery procedure, “that henceforth this subdivision, and not [Code of Civil Procedure,] § 473, will apply to this form of discovery default.” (City of Fresno, 205 Cal.App.3d at 1466-67.) In relevant part, Code of Civil Procedure, § 473(b), reads: “The court may, upon any terms as may be just, relieve a party or his or her legal Tepresentative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein... . and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or he client . .. or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect... . There are two ways to secure relief under § 473, subdivision (b): (1) properly filing an application for relief, with an attomey’s sworn affidavit attesting to their mistake, inadvertence, surprise, or neglect, within six months after entry of the adverse decision, upon which the court is required te grant relief, i.e., a mandatory relief provision; or {2) properly filing an application for relief, with the proposed substitute admissions, within six months after entry of the adverse decision, upon which the court may grant relief, i.e., a discretionary relief provision. (See also Even Zohar Construction & Remodeling, inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4” 830, 838-39.) In submitting its motion for relief, Plaintiff has attached a declaration by an attorney from their new counsel of record (“Gupta Declaration’) and copies of their proposed substitute responses to Defendants’ Requests for Admission (Set One) in what appears to be an attempt to satisfy both relief provisions. 1 The Gupta Declaration re “Fault.” “fn determining whether the attorney's mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same r similar circumstances might have made the same error.” (Zamora v. Glayborn Contracting Group, inc. (2002) 28 Cal.4" 249, 258.) The Gupta declaration contains no admission of mistake or neglect, ar any clarifying information or explanation that supports afinding that the deemed admissions order was actually caused by mistake or neglect on the part of Plaintiff's former or current counsel. {13 of the Gupta declaration states that “Cross-Complainant Has Represented to this Court that Cross- Defendant failed to respond to these discovery requests by the response deadline of March 26, 2019. Crass- Complainant has also represented to this Court that her counsel attempted to meet and confer with FarMar to obtain the belated discovery responses on April 20, 2019.” 7 July 2020 Order on Motion of Cross-Defendant Page 3 of 6 Velocity Investments, LLC to Set Aside Deemed Admissions. Plaintiff accordingly argues that since it has filed “a mea culpa declaration by an attorney establishing that [the deemed admissions order] was entered . . . as the result of attorney neglect,” this Court is, per § 473, subdivision (b)'s mandatory relief provision, ‘deprive(d] . . . of discretion to deny relief, even without a showing that the neglect was excusable.” {Tackett v. City of Huntington Beach (1994) 22 Cal.App.4 60, 65.) Notwithstanding the plain construction of§ 2033.300, subdivision (b) as a discretionary relief provision simifarto the discretionary relief provision of § 473, subdivision (b), or that § 473 “still requires that an attorney's neglect be excusable before relief can be granted under [the mandatory relief] provision” when the “aggrieved party is not challenging a default, default judgment, or dismissal” (Tackett, supra, 22 Cal.App.4th at 65), this argument falls on the grounds that there is no mea culpa contained in the Gupta Declaration. The Plaintiffs Memorandum of Points And Authorities states the deemed admissions order “was a result of its counsel's excusable neglect and mistake.” The Gupta Declaration instead merely restates the statement of facts and the Plaintiffs discovery of the “necessity to set aside the deemed admission.” Nowhere in the two-page Gupta Declaration is there any admission of neglect or mistake on the part of Plaintiffs current or former counsel. Nor is there any clarifying information or explanation for FarMar's failure to respond to Defendants’ Requests for Admission (Set One), the lack of opposition to the Defendants’ motion for deemed admissions that was ultimately granted by the Court, the six months between substitution of Plaintiffs new counsel and service of outstanding discovery requests, or the three month delay between service of outstanding discovery requests and the filing of this motion, Considering the totality of the circumstances from an objective point of view, The Gupta Declaration offers nothing in support of a finding that “default was actually caused by the attorney's mistake, inadvertence, . neglect.” (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 256 (emphasis added).) Absent an actual mea culpa from Plaintiffs former or current counsel, this Court cannot find that the deemed admissions were actually caused by attorney neglect and mistake to satisfy the requirements of § 473, subdivision (b)'s mandatory relief provision. 2 The Absence of Any Clarifying Information or Explanation regarding the Claimed Neglect and Mistake Was Excusable. The Court now tums to § 473, subdivision (b)'s discretionary relief provision, under which Plaintiff has filed its substitute responses to Defendants’ Requests for Admission (Set One). As noted supra, § 2033.300, subdivision (b) is constructed as a discretionary relief provision similar to § 473, subdivision (b)'s discretionary relief provision, with the specified first requirement that this Court “determine[] that admission was the result of mistake, inadvertence, or excusable neglect” before permitting withdrawal and amendment of an admission. In determining whether Piaintif?s counsel's mistake or neglect was excusable, the Court considers “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Tackett, supra, 22 Cal.App.4th at 65 (quoting Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276).) In reiterating Bettencourt's analysis for excusability, the Supreme Court has elaborated that “the court inquires whelher “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ (Bettencourt v. Los Rios Community Colfege Dist. (1986) 42 Cal.3d 270, 276),) In other words, the discretionary relief provision . . . only permits relief from attomey error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation omitted.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Owing to the same deficiencies of the Gupta Declaration as detailed, and the lack of any other material from the Plaintiff's submissions that offers clarification or explanation of the circumstances surrounding the nonresponses by Plaintiff's former counsel, the delay in responses by Plaintiff's current counsel, and the Plaintiff's own conduct regarding the matters, this Court cannot ascertain whethera reasonably prudent person under the same or similar circumstances might have made the neglect and mistake claimed by Plaintiff, through its current counsel, in the present motion, and accordingly cannot find the neglect and mistake to be excusable. “Itis impossible fora court to characterize neglect as excusable when the attomey has not described what the neglect was.” (Tackett, 22 Cal.App.4" at 66.) 7July 2020 Order on Motion of Cross-Defendant Page 4 of 6 Velocity Investments, LLC to Set Aside Deemed Admissions. 3 Diligence and “Six Months.” As for ‘whether counsel was otherwise diligent in investigating and pursuing the claim,” the Court notes at the outset that § 2033.300, subdivision (b) lacks any specific time limit or deadline from the entry of the adverse decision for an aggrieved party to seek relief. However, the similarities in the language and construction of§ 2033.300, subdivision (b) and § 473, subdivision (b)'s discretionary relief provision, along with the Legislature's intent to “employ the same standard for relief from defaults as used in section 473 for failure to serve a timely response to a discovery demand” (City of Fresno, 205 Cal.App.3d at 1467), counsel's applying Beftencourt’s diligence analysis consistent with other cases interpreting § 473, subdivision (b)'s discretionary relief provision. The Supreme Court has reiterated that “[t]he party seeking relief under section 473 must also be diligent. [Citation omitted.] Thus an application for relief must be made ‘within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Zamora, supra, 28 Cal.4th at 258.) As the statement of facts and the Gupta Declaration submitted by the Plaintiff plainly lay out, the Defendants filed their cross-complaints and served the Requests for Admission (Set One), among other discovery requests, on 19 February 2019. Plaintiff, then represented by FarMar, did not respond to the requests by the 26 March 2019 deadline or meet and confer with Defendants’ counsel in April, leading to Defendants’ motion for the deemed admissions on 7 May 2019. Another month passed before the Court granted the motion on 6 June 2019. By the time Plaintiff substituted new counsel in August 2019, nearly six months had elapsed. After the Court set aside default against Plaintiff on 10 September 2019, answers to the cross-complaints were filed on 25 September 2019. Another six months then passed, during which Plaintiff's new counsel “discovered the necessity to set aside the deemed admission,” before responses to Defendants’ outstanding interrogatories and document production requests were served on 6 March 2020. The present motion was then filed on 23 March 2020, over nine months after the order granting Defendants’ motion for deemed admissions was issued. 4. Prejudice to Defendants/Cross-complainants. As noted above, in order for the Court to grant relief under § 2033.300, in order to comply with Code of Civil Procedure, § 2033.300(b), Plaintiff/Cross-Defendant must not show that the deemed admissions were “the result of mistake, inadvertence, or excusable neglect.” Plaintiff/Cross-Defendant must also show that the Defendants/cross-complainants “will not be substantially prejudiced in maintaining” their cross-complaints on the merits, In fact, neither party referred to any prejudice caused by the failure to properly respond to the requests for admissions when served or to the delay in the bringing of this motion. Since the Court believes that velocity failed to make a prima facie showing for excusable neglect, there Is no further reason to comment on what prejudice, if any, befell to the defendant/cross-complainants. 5 This Court Cannot Find Good Cause to Grant the Motion For Relief. While “delay alone without a showing of substantial prejudice cannot justify the denial of a motion under [§ 2033.300]" (New Albertsons, Inc., 168 Cal.App.4" at 1421), ‘[t]he court must generally consider the facts and circumstances of a case to determine whether the party was diligent in seeking relief, and whether the reasons given for the party's mistake are satisfactory.” (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 255 {internal citations omitted).) Such delay exceeding the contours of reasonableness as set forth by the Supreme Court, coupled with the Plaintiffs failure to meet its “burden to show that the mistake, inadvertence, . . . or neglect was excusable” (Zamora, 28 Cal.4th at 258), or to even present information required for this Court to begin to ascertain whether the mistake and neglect was excusable, is grounds enough for denial of Plaintiff's motion for relief. 7 July 2020 Order on Motion of Cross-Defendant Page 5 of 6 Velocity Investments, LLC to Set Aside Deemed Admissions. As Defendants note in their briefs in opposition to Plaintiff's motion, it is the rule that “[cJonduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and eviscerate the concept of attorney malpractice. [Citation omitted]’ (Zamora, supra, 28 Cal.4* at 258 (internal quotation marks omitted).)? “Further, the press of an attorney's practice would not warrant relief. [Citations omitted ]" (City of Fresno, supra, 205 Cal.App.3d at 14673; accord, Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 281 (“Unusual pressure of business by itself is not a legitimate excuse either for granting relief . . . or for delay in seeking timely relief from default. [Citations omitted.]"}.) The Court need not subscribe to the theory that the conduct of Plaintiff's counsel, current and former, arose out of either “conduct falling below the professional standard of care” or the “unusual pressure of business” in order to deny Plaintiff's motion for relief under § 2033.300. As the exact nature of the cause and extent of the neglect and mistake remain unidentified and unexplained by the Plaintiff in its submissions to the Court, the Court cannot rule out other circumstances or theories which may possibly qualify for relief under § 473 or § 2033.300-a clear indication of the Plaintiff's failure to meet its burden of showing the claimed neglect and mistake was excusable. Again, as “[i]t is impossible for a court to characterize neglect as excusable when the attorney has not described what the neglect was” (Tackett, 22 Cal.App.4" at 66), the Court finds, as the Defendants argue in their briefs in opposition, that Plaintiff has “failed to prove threshold matters necessary to the relief sought.” In finding that the Plaintiff has not met its burden of demonstrating the claimed neglect and mistake on the part of its counsel, and thus is not entitled to relief under § 2033.300, the Court acknowledges the complex and extended nature of the procedural history of the cross-complaints, including the substitution of Plaintiff's counsel. But absent any clarifying information or explanation regarding the circumstances underlying the Plaintiff's failure to timely respond to Defendants’ Requests for Admission {Set One), the Court cannot determine the deemed admissions were actually caused by the neglect and mistake on the part of Plaintiffs former or current counsel. Nor can the Court consider excusing neglect and mistake that is not adequately described in any of the Plaintiff's submissions in support of its motion. I Conclusion and Order. Plaintiff's/Cross-Defendant's Velocity Investments, LLC's motion for relief from the June 6, 2019 order granting Defendants’ motion to deem unanswered admissions as admitted is DENIED. 17 February 2021 DATED: HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara 2 See also Lang v. Hochman (2000) 77 Cal.App.4th 1225 (quoting Garcia v. Hejmadi (1997.) 58 Cal.App.4" 674, 682; TransitAds, Inc. v. Tanner Motor Livery, Ltd (1969) 270 Cal. App.2d 275; Huh v. Wang (2007)158 Cal App.4" 1406, 1423.) 3“As the judge observed in denying petitioner's motion for relief: ‘[If] we are going to simply find that being busy, or not fully understanding the provisions of a code section, or whatever it is, constitutes excusable neglect, why, you know, we just don't have any rules.” (City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1467.) 7 July 2020 Order on Motion of Cross-Defendant Page 6 of6 Velocity Investments, LLC to Set Aside Deemed Admissions. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA a] DOWNTOWN COURTHOUSE 191 NorTH FirsT STREET E SAN JOSE, CALIFORNIA 95113 eon CIVIL DIVISION Le FEB 1 7 2026 RE: Velocity Investments, LLC v. Canul Clerk of,the Court Superior Gaunt of inty of Santa Clara Case Number: 16CV300096 BY. EPUTY PROOF OF SERVICE ORDERS ON MOTION OF CROSS-DEFENDANT VELOCITY INVESTMENTS, LLC TO SET ASIDE DEEMED ADMISSIONS was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 862-2700, or use the Court's TDD line (408) 882-2680 or the Voice/TDD California Relay Service (800) 735-2922, DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, GA on February 17, 2021. CLERK OF THE COURT, by Hientrang Tranthien, Deputy. ce: Fred W Schwinn Consumer Law Center Inc 1435 Koll Circle Ste 104 San Jose CA 95112 Molshree Gupta Chapman Glucksman Dean Roeb & Barger 11900 West Olympic Boulevard Suite 800 LOS ANGELES CA 90064-0704 Gregory Karl Sabo 11900 W Olympic Blvd #800 Los Angeles CA 90064-1199 CW-9027 REV 12/08/16 PROOF OF SERVICE