Tentative Ruling: Juan Gutierrez vs JM Roofing Company Inc et al
Case Number
24CV05331
Case Type
Hearing Date / Time
Mon, 03/23/2026 - 10:00
Nature of Proceedings
Motion to Withdraw or Amend Request for Admission
Tentative Ruling
Juan Gutierrez v. JM Roofing Company, Inc., et al.
Case No. 24CV05331
Hearing Date: March 23, 2026
HEARING: Motion of Plaintiff Juan Gutierrez to Withdraw or Amend Requests for Admission
ATTORNEYS: For Plaintiff Juan Gutierrez.: Raymond Ghermezian
For Defendants Our Lady of Sorrows Roman Catholic Church, Archdiocese of Los Angeles Education and Welfare Corporation, Archdiocese of Los Angeles Funeral and Mortuary Services Corporation, and Archdiocese of Los Angeles Risk Management Corporation: Fred Grannis
For Defendant JM Roofing Company Inc. dba Action Roofing: Thomas Friedman
TENTATIVE RULING:
Plaintiff’s motion to withdraw or amend requests for admission is denied.
Background:
This action was commenced on September 25, 2024, by the filing of the Judicial Council form complaint by plaintiff Juan Gutierrez against defendants JM Roofing Company, Inc. dba Action Roofing (“JM Roofing”), Our Lady of Sorrows Roman Catholic Church, Archdiocese of Los Angeles Education and Welfare Corporation, Archdiocese of Los Angeles Funeral and Mortuary Services Corporation, and Archdiocese of Los Angeles Risk Management Corporation (collectively “the Church defendants”) for General Negligence and Premises Liability.
The complaint alleges that on October 19, 2022, plaintiff was acting within the course and scope of his employment with the Church and was in the process of installing a water pump at Our Lady of Sorrows Roman Catholic Church when a Doe defendant negligently set up a ladder at an unsafe proximity to plaintiff and dropped, or caused to fall, a large heavy object which struck plaintiff on the head causing him injuries.
JM Roofing answered the complaint on December 12, 2024, with a general denial and 20 affirmative defenses.
The Church defendants answered the complaint on December 27, 2024, with a general denial and 14 affirmative defenses.
On April 16, 2025, The Church defendants moved to compel responses to form interrogatories, special interrogatories, and requests for production of documents, as well as move for an order that their requests for admissions be deemed admitted. The Church defendants also sought monetary sanctions in connection with each of the discovery motions. Plaintiff did not file timely opposition.
One court day prior to the July 21, 2025, hearing on the discovery motions, plaintiff filed a declaration of counsel that blamed the failure to respond to discovery on staff. As part of the tentative ruling on the discovery motions, the court stated: “(Note: It is always the responsibility of the attorney to ensure proper legal representation, not staff.)” (Minute Order of August 11, 2025.) The declaration also stated the responses to the discovery had been served the same day. Again, one court day before the hearing.
On July 21, 2025, the court deemed all of the discovery motions moot, other than the motion pertaining to the requests for admissions, and imposed monetary sanctions for the Church defendants having to bring the motions. The motion pertaining to the requests for admissions was continued to August 11, 2025.
On August 11, 2025, the motion of the Church defendants for an order establishing the truth of requests for admissions, set one, to be deemed admitted, was considered moot, but monetary sanctions were granted.
On October 14, 2025, the Church defendants filed a motion for discovery sanctions against plaintiff for failure to obey the court’s August 11, 2025 discovery order.
On November 17, 2025, plaintiff’s counsel filed a declaration once again blaming his staff.
On August 20, 2025, JM Roofing filed a motion for order establishing truth of requests for admissions to be deemed admitted and for monetary sanctions. On November 24, 2025, the motion, being unopposed, was granted.
On February 17, 2026, nearly three months following the granting of the motion, plaintiff filed the present “motion to withdraw or amend requests for admission” pursuant to Code of Civil Procedure section 2033.300.
JM Roofing opposes the motion.
Analysis:
Notice of Motion
“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010.)
“Section 1010’s requirement “ ‘is for the benefit of the party upon whom the notice is served,’ ” to make him or her aware of the issues to be raised in the motion. (Hecq v. Conner (1928) 203 Cal. 504, 506, 265 P. 180; see also Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277, 203 Cal.Rptr.3d 183 (Kinda).) As stated in Kinda: “ ‘The purpose of the notice requirements ‘ “is to cause the moving party to “ ‘sufficiently define the issues for the information and attention of the adverse party and the court.” ’ ” [Citations.]” (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137-138.)
Plaintiff’s notice of motion states, in relevant part:
“Plaintiff will move the court for an order permitting Plaintiff to withdraw the admission made in error and to allow the amended response, which is a denial, to serve as the only response to the request for admission. This motion is based upon the fact that moving party’s timely responses contained erroneous admissions a result of Plaintiff’s mistake, inadvertence and/or excusable neglect, and that moving party is thus entitled under Code Civ. Proc. § 2033.300, to an order permitting withdrawal and/or amendment of such admissions.”
The court notes that plaintiff’s representation, that there were timely responses, is false. As noted above, the court deemed the requests admitted due to plaintiff’s failure to respond, failure to oppose the motion, and failure to appear and argue at the hearing of the matter.
Relief Pursuant to Code of Civil Procedure section 2033.300
“(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 the 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.
“(c) 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 related 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.” (Code Civ.
Proc., § 2033.300.)
JM Roofing argues that Code of Civil Procedure section 2033.300 is inapplicable in this situation because the section pertains to “an admission made in response to a request for admission.” JM Roofing reasons that there were no admissions made in response to requests for admission. The requests were deemed admitted because of plaintiff’s continued failures in providing responses, failing to oppose the motion, and not attending the hearing. While the court understands the argument, it is incorrect. Cases, such as Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 and Stover v. Bruntz (2017) 12 Cal.App.5th 19 have provided guidance and explain that a party may move pursuant to the section to withdraw admissions that were imposed by the court as discovery sanctions. However, plaintiff must still meet the requirements of the section to obtain relief.
In support of the opposition, JM Roofing’s counsel declares:
“On or about April 22, 2025, JM Roofing served its First Set of Request for Admissions, Special Interrogatories and Request for Production to Plaintiff Juan Gutierrez, a true and correct copy of which is attached hereto as Exhibit A.” (Friedman Decl., ¶ 2 & Exh. A.)
“On May 19, 2025 I received a written request via e-mail requesting an extension for Plaintiff to respond to JM Roofing’s written discovery until June 3, 2025. The request was sent by Jackie via e-mail from jackie@ghermezianlaw.com and copied to Raymond raymond@ghermezianlaw.com and Maria maria@ghermezianlaw.com as well as counsel for the co-defendant, Fredrick Grannis ffgrannis@grannislawoffice.com. Exhibit B.” (Friedman Decl., ¶ 3.)
“Upon Plaintiff’s request, an extension was granted by counsel for JM Roofing, Thomas Friedman, until June 3, 2025. The response was sent on May 19, 2025 via e-mail from Thomas Friedman tfriedman@brownbonn.com to jackie@ghermezianlaw.com and copied to Raymond raymond@ghermezianlaw.com and Maria maria@ghermezianlaw.com as well as counsel for the co-defendant, Fredrick Grannis ffgrannis@grannislawoffice.com and the paralegal for JM Roofing, Tara at tmcclelland@brownbonn.com, a true and correct copy of which is attached hereto as Exhibit B.” (Friedman Decl., ¶ 4.)
“The Plaintiff did not respond to JM Roofing’s discovery by June 3, 2025.” (Friedman Decl., ¶ 5.)
“Counsel for JM Roofing sent an e-mail correspondence to Plaintiff’s counsel regarding the missing discovery responses on June 26, 2025 and the email was sent to jackie@ghermezianlaw.com and copied to Raymond raymond@ghermezianlaw.com and Maria maria@ghermezianlaw.com as well as counsel for the co-defendant, Fredrick Grannis ffgrannis@grannislawoffice.com and the paralegal for JM Roofing, Tara at tmcclelland@brownbonn.com, a true and correct copy of which is attached hereto as Exhibit B.” (Friedman Decl., ¶ 6.)
“On July 1, 2025 Jackie jackie@ghermezianlaw.com sent a reply stating she was “out of the office all last week” and will provide the discovery responses on or before July 7, 2025. Jackie sent the e-mail to counsel for JM Roofing, Thomas Friedman at tfriedman@brownbonn.com and Raymond raymond@ghermezianlaw.com and Maria maria@ghermezianlaw.com as well as counsel for the co-defendant, Fredrick Grannis ffgrannis@grannislawoffice.com and the paralegal for JM Roofing, Tara at tmcclelland@brownbonn.com a true and correct copy of which is attached hereto as Exhibit B.” (Friedman Decl., ¶ 7.)
“Plaintiff did not respond to JM Roofing’s written discovery by July 7, 2025.” (Friedman Decl., ¶ 8.)
“On August 11, 2025 Counsel for JM Roofing, Thomas Friedman, wrote to Plaintiff’s counsel stating “Please provide discovery responses served on your client by JM Roofing…” and stating if discovery responses are not provided by August 15, 2025, we will need to bring a motion to compel. The e-mail was sent via e-mail from counsel for JM Roofing, Thomas Friedman tfriedman@brownbonn.com to jackie@ghermezianlaw.com and copied to Raymond raymond@ghermezianlaw.com and Maria maria@ghermezianlaw.com as well as counsel for the co-defendant, Fredrick Grannis ffgrannis@grannislawoffice.com and the paralegal for JM Roofing, Tara at tmcclelland@brownbonn.com a true and correct copy of which is attached hereto as Exhibit B.” (Friedman Decl., ¶ 9.)
“Plaintiff did not respond to JM Roofing’s e-mail of August 11, 2025.” (Friedman Decl., ¶ 10.)
“On August 20, 2025 JM Roofing filed its Motion to Compel Plaintiff’s Responses to Special Interrogatories; Motion to Request to Deem Request for Admissions Admitted, and Motion to Compel Responses to Request for Production, Exhibit C.” (Friedman Decl., ¶ 11.)
“The Plaintiff did not file an Opposition to JM Roofing’s Motion to Compel Plaintiff’s Responses to Special Interrogatories; Motion to Request to Deem Request for Admissions Admitted, or Motion to Compel Responses to Request for Production. Exhibit C.” (Friedman Decl., ¶ 12.)
“The Court issued a tentative ruling indicating JM Roofing’s unopposed motions would be granted. A true and correct copy of which is attached hereto as Exhibit D.” (Friedman Decl., ¶ 13.)
“On November 24, 2025 the Court held a hearing and granted JM Roofing’s unopposed motions. Exhibit C.” (Friedman Decl., ¶ 14.)
“The court may permit withdrawal of an admission only if the admission was the result of mistake, inadvertence, or excusable neglect and the opposing party will not be substantially prejudiced.” (Stover v. Bruntz, supra, 12 Cal.App.5th at p. 30.)
“Section 2033.300, subdivision (b) differs from the discretionary provision in section 473, subdivision (b) in that the former requires not only a showing of “ ‘mistake, inadvertence, or excusable neglect,’ ” but also a showing that “ ‘the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits’ ” (§ 2033.300, subd. (b)). Under the discretionary provision in section 473, subdivision (b), in contrast, the absence of substantial prejudice is an important factor to consider rather than a requirement. (Elston, supra, 38 Cal.3d at p. 235, 211 Cal.Rptr. 416, 695 P.2d 713.) Notwithstanding this difference between the two statutes, and other differences that are not relevant here, we derive the following rules from Elston, supra, 38 Cal.3d at page 235, 211 Cal.Rptr. 416, 695 P.2d 713, that we believe are fully applicable to a motion under section 2033.300.
“The trial court’s discretion in ruling on a motion to withdraw or amend an admission is not unlimited, but must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. 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. Accordingly, the court’s discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party’s action or defense on the merits.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420–1421.)
Here, the admissible evidence presented does not show that the admissions were the result of mistake, inadvertence, or excusable neglect as defined by relevant legal authorities. Rather, the admissible evidence makes it is clear that the “mistake, inadvertence, or neglect” was inexcusable.
In support of the motion, plaintiff’s counsel declares:
“My paralegal, Jacqueline Canas (“ ‘Ms. Canas’ ”), was responsible for coordinating discovery responses, calendaring deadlines, and tracking the status of outstanding discovery in this matter. On or about May 22, 2025, Ms. Canas requested an extension of time to respond to JM Roofing’s discovery. An extension was granted through June 3, 2025.” (Ghermezian Decl., ¶ 5.)
“Ms. Canas did no serve responses by June 3, 2025, and no responses were provided to JM Roofing by that date.” (Ghermezian Decl., ¶ 6.)
“On June 18, 2025, JM Roofing sent a meet and confer letter regarding Plaintiff’s outstanding responses to its RFAs. Ms. Canas communicated that responses would be provided by July 7, 2025.” (Ghermezian Decl., ¶ 7.)
“On July 18, 2025, Ms. Canas served discovery responses. However, she served responses only to the Archdiocese Defendants’ discovery-not to JM Roofing’s Requests for Admission.” (Ghermezian Decl., ¶ 8.)
“At the time, Ms. Canas did not realize that JM Roofing had separately propounded its own Requests for Admission distinct from the Archdiocese Defendants’ discovery. Because both JM Roofing and the Archdiocese Defendants are defendants in this action, and both had served discovery, Ms. Canas mistakenly confused the two defendants’ discovery and believed that by responding to the Archdiocese Defendants’ discovery, she had responded to all outstanding discovery in this matter.” (Ghermezian Decl., ¶ 9.)
“Around this same time, the Archdiocese Defendants had filed a motion to deem their own RFAs admitted, which was set for hearing on July 21, 2025. After Ms. Canas served responses to the Archdiocese Defendants’ discovery on July 18, 2025, that motion was resolved.” (Ghermezian Decl., ¶ 10.)
“On August 11, 2025, JM Roofing attempted to meet and confer with my office again regarding its still-outstanding RFAs. Ms. Canas did not respond because she continued to believe, mistakenly, that JM Roofing’s RFAs were the same discovery she had already responded to on behalf of the Archdiocese Defendants. Ms. Canas did not bring this correspondence to my attention because she believed the matter had already been resolved.” (Ghermezian Decl., ¶ 11.)
“On August 20, 2025, JM Roofing filed a Motion to Deem Requests for Admission Admitted, set for hearing on November 24, 2025.” (Ghermezian Decl., ¶ 12.)
“Separately, on October 14, 2025, the Archdiocese Defendants filed a motion for discovery sanctions, also set for hearing on November 24, 2025.” (Ghermezian Decl., ¶ 13.)
“On November 17, 2025, my office filed a declaration in response to the Archdiocese Defendants’ motion for discovery sanctions.” (Ghermezian Decl., ¶ 14.)
“On November 19, 2025, the Archdiocese Defendants took their motion off calendar.” (Ghermezian Decl., ¶ 15.)
“When the Archdiocese Defendants took their motion off calendar, Ms. Canas mistakenly believed that all motions set for hearing on November 24, 2025 had been resolved. She did not realize that JM Roofing’s motion to deem its RFAs admitted was a separate motion from a separate defendant that remained on calendar. Ms. Canas’s confusion arose because both motions involved discovery disputes with defendants in the same case, both were set for the same hearing date, and she had been confusing the two defendants’ discovery throughout the course of this litigation. Ms. Canas did not bring the JM Roofing hearing to my attention and did not separately calendar it.” (Ghermezian Decl., ¶ 16.)
“As a result of Ms. Canas’s mistake, neither I nor anyone on behalf of Plaintiff appeared at the November 24, 2025 hearing on JM Roofing’s motion. The Court granted JM Roofing's motion and deemed its Requests for Admission, Set One, admitted.” (Ghermezian Decl., ¶ 17.)
“At no time did Plaintiff Juan Gutierrez instruct my office to ignore JM Roofing’s discovery or fail to appear at the hearing. The client bears no fault whatsoever for what occurred.” (Ghermezian Decl., ¶ 18.)
“The failure to respond to JM Roofing’s Requests for Admission and the failure to appear at the November 24, 2025 hearing were solely the result of the mistake, inadvertence, and neglect of my office, specifically, the confusion of my paralegal, who confused JM Roofing's discovery with the Archdiocese Defendants’ discovery throughout this litigation. As Plaintiff's attorney of record, I accept full responsibility for my office’s failure. The neglect of my staff is my neglect.” (Ghermezian Decl., ¶ 19.)
There is no declaration from Ms. Canas regarding any of her beliefs, or errors based on those alleged beliefs. Ghermezian would not likely have personal knowledge of Ms. Canas “beliefs.” And, if for some reason he did, he failed to explain how he had personal knowledge.
“The statutory language “ ‘mistake, inadvertence, or excusable neglect’ ” (§ 2033.300, subd. (b)) is identical to some of the language used in section 473, subdivision (b). Section 473, subdivision (b) states that a court may “ ‘relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’ ” The use of identical terms in two different statutes serving similar purposes suggests that the Legislature intended those terms to have the same meaning in both statutes. [Citaion.] Moreover, the legislative history of section 2033, subdivision (m), the predecessor of section 2033.300, suggests that the Legislature intended “ ‘mistake, inadvertence, or excusable neglect’ ” to have the same meaning in the statute as those terms have in section 473, subdivision (b).” (New Albertsons, Inc. v. Superior Court, supra, 168 Cal.App.4th at pp. 1418–1419.)
“Relief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant’s failure . . . was reasonable when tested by the objective ‘ “reasonably prudent person” ’ standard.’ ” [Citation.] Under the reasonably prudent person standard, “ ‘[e]xcusable neglect is that neglect which might have been the act of a reasonably prudent person under the circumstances.’ ” [Citation.] When relief is sought based on mistake, because of the reasonably prudent person standard “ ‘it is not every mistake that will excuse a default, the determining factor being the reasonableness of the misconception.’ ” [Citation.]” (N.G. v. County of San Diego (2020) 59 Cal.App.5th 63, 73–74.)
“A showing of reasonable diligence is required to establish that the petitioner acted as a reasonably prudent person. When excusable neglect is claimed based on ignorance of a fact or failure to act on it, “ ‘[a] person seeking relief must show more than just failure to discover a fact until too late; or a simple failure to act. He [or she] must show by a preponderance of the evidence that in the use of reasonable diligence, he [or she] could not discover the fact or could not act upon it.’ ” [Citation.] Similarly, when mistake is claimed, “ ‘[t]he party seeking relief based on a claim of mistake must establish he [or she] was diligent in investigating and pursuing the claim . . ..’ ” [Citation.] Under this standard, “ ‘ “[f]ailure to discover the alleged basis of the cause of action in time is . . . not a compelling showing in the absence of reasonable diligence exercised for the purpose of discovering the facts.” ’ ” [Citation.[ (N.G. v. County of San Diego, supra, 59 Cal.App.5th at p. 74.)
Here, there were multiple events, all caused by plaintiff or his counsel, that resulted in the requests for admission being deemed admitted. Those events were not mistakes, inadvertence, or excusable neglect that a reasonably prudent person would have made. Rather it is a continuing pattern of inexcusable actions, or lack of required actions, on plaintiff counsel’s part. Blaming staff does not relieve counsel of his responsibility for these actions and inactions.
Finally, plaintiff’s argument regarding the mandatory provision of Code of Civil Procedure section 473, based on an affidavit of attorney fault, fails. First, plaintiff did not include section 473 as a ground for relief in his notice of motion, as would be required to consider it, and second, the mandatory provision only applies to defaults and dismissals.
The motion will be denied.