Gagan H. Palrecha v. Loyalty Creative Enterprise, LLC, Alex Gelbard, Nicholas S. Larsen, and Peter F. Munzo

MOTIONS ON CALENDAR: On May 22, 2026, Plaintiff filed a Motion to Strike Gelbard's Answer for Disobedience of Discovery Order. The Court is not in receipt of an opposition brief. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted. On June 8, 2026, Gelbard (a self-represented litigant) filed a Motion for Relief from Having Admissions Deemed Admitted and Request to Amend Admissions. On August 3, 2026, Plaintiff filed an opposition.

MOTION FOR RELIEF FROM DEEMED ADMISSIONS ANALYSIS: A.

Legal Standard

C.C.P. Sec. 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 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the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.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. (C.C.P.

Sec. 2033.300; Wilcox v. Birtwhistle (1999) 21 C4th 973, 979-980 [finding that relief may be granted even if no responses were served]; Weil & Brown, The Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2026 Update) Ch. 8G-8, Sec. 8:1386b ["Even though CCP Sec. 2033.300 refers only to withdrawal or amendment of an admission, this includes admissions deemed admitted by the court under CCP Sec. 2033.280(b) for failure to respond."].)

B.

Background

On December 17, 2025, Plaintiff served on Gelbard the discovery requests with responses due by January 22, 2026. Gelbard requested and Plaintiff granted a response extension to February 5, 2026. On February 19, 2026, Plaintiff filed a motion to compel Gelbard's initial responses to Form Interrogatories ("FROG"), set one and Request for Production of Documents ("RPD"), set one, as well as a request for an order deeming Requests for Admissions ("RFA"), set one, admitted. On March 4, 2026, Gelbard's then-counsel, Onica Sherri Cole, substituted out of the case. On April 10, 2026, the Court granted the unopposed motions and Gelbard was ordered to provide verified FROG and RPD responses within 30 days, the RFAs were deemed admitted, and he was ordered to pay $1,900 in monetary sanctions within 30 days.

C.

Discussion

Gelbard seeks relief from the April 10, 2026 order deeming the RFAs admitted and requests leave to serve substantive responses attached as Exhibit 22. Gelbard moves pursuant to C.C.P. Sec.Sec. 2033.300 and 473(b). In his declaration, Gelbard states that he signed Ms. Cole's retainer agreement solely in his representative capacity as managing member of Loyalty but did not retain her personally. (Gelbard Decl., P.4.) Notwithstanding this lack of authorization, Ms. Cole accepted the FAC on his behalf and filed an answer in his name. (Id., P.5.)

He states that Ms. Cole acknowledged the issue and represented she would file a C.C.P. Sec. 473(b) affidavit of fault to vacate the unauthorized answer, but she never did. (Id., P.6.) In September 2025, Gelbard retained Ken Calrson for the limited purpose of getting Ms. Cole to file a corrective motion. (Gelbard Decl., P.7, Ex. 1.) On October 16, 2025, Ms. Cole, Mr. Carlson, and Gelbard had a Zoom meeting where Ms. Cole indicated she would sign a section 473(b) affidavit, but despite multiple communications, Ms.

Cole did not do so. (Id., P.P.8-9.) On December 17, 2025, Plaintiff served FROG, SROG, RPD, and RFAs on Gelbard through Ms. Cole (such that responses were due by January 22, 2026), which she forwarded to Gelbard asking for dates to discuss preparing responses. (Id, P.10, Exs. 3-4.) On December 19, 2025, he asked Ms. Cole for a 60-90 extension based on the pending section 473(b) affidavit, the holidays, and his medical issues; he followed up on January 12, 2026; and Ms. Cole responded that she could not request an extension and would meet him in February to complete responses. (Id., P.11.)

On January 21, 2026, he asked Ms. Cole for the affidavit and she accepted $700 to be applied towards potential sanctions arising from a motion. (Id., P.12.) On January 22, 2026, Ms. Cole obtained an extension for discovery to February 5, 2026, but did not inform Gelbard and did not send responses by that date. (Id., P.14, Exs. 7-8.) On February 9, 2026, Ms. Cole sent an email to Gelbard and Mr. Carlson stating she was finishing discovery and asking when Mr. Carlson would be stepping in. (Id., P.15.)

On February 21, 2026, Ms. Cole forwarded to Mr. Carlson and Gelbard the outstanding discovery and Plaintiff's motion to compel. (Id., P.17, Exs. 10-11.) On February 23, 2026, he and Mr. Carlson had a call discussing Plaintiff's motion and Mr. Carlson contacted Plaintiff's Counsel Mr. Schivo to discuss a potential stipulation to resolve discovery and the unauthorized answer. (Id., P.18, Ex. 13.) On March 2, 2026, Gelbard called Mr. Carlson's office to confirm he would attend the March 4, 2026 hearing. (Id., P.19.)

On March 3, 2026, Mr. Calrson contacted Mr. Schivo regarding a stipulation for a 30-day extension for discovery responses and to vacate the unauthorized answer with ten days to file an amended pleading. (Id., P.20.) On March 4, 2026, Mr. Schivo emailed Mr. Carlson stating that someone needed to appear to the ex parte hearing to put the stipulated order on the record, but Mr. Carlson nor any appearance attorney appeared on his behalf and Gelbard did not appear because he had a medical procedure.

As a result, the stipulation was not entered and the discovery motions were set for April 10, 2026. (Id., P.P.21, Ex. 18.) Gelbard states that in March to April 2026, he relied on Mr. Carlson regarding the discovery dispute, he was not informed about the missed March 4, 2026 hearing, and he was not aware of the April 10, 2026 hearing. (Gelbard Decl., P.P.22-23.) After the April 10, 2026 hearing, Mr. Carlson informed him that the discovery motions were granted in Plaintiff's favor. (Id., P.P.24-25.)

Gelbard provides proposed amended RFA responses, as well as verified FROG, SROG, RPD, and RFA responses that he is prepared to serve following the hearing. (Gelbard Decl., P.P.26-27.) Gelbard also provides Ken Carlson's declaration. (The Court notes that Mr. Carlson has not substituted into the action as Gelbard's attorney of record.) Mr. Carlson makes similar statements as Gelbard regarding their communications with Ms. Cole and the hearings. (Carlson Decl., P.P.2-16.) Mr. Carlson states that he was unable to arrange for himself or an appearance attorney to appear for the March 4, 2026 hearing and that he did not see Mr.

Schivo's email stating that someone needed to appear to enter the stipulation/order. (Id., P.17.) He admits that the stipulation did not get entered on that date due to his excusable neglect in failing to appear or arrange for an appearance on Gelbard's behalf. (Id.) He states that Mr. Schivo emailed him after the March 4, 2026 hearing stating he would prepare the stipulation and asked who would be signing it, but Mr. Carlson did not see or respond to the email until after the April 10, 2026 hearing. (Id., P.18.)

He states that during the weeks leading up to the April 10, 2026 discovery motions hearing, he was engaged in other matters, did not complete his review of the materials Gelbert sent him, did not prepare discovery responses, and did not have the April 10, 2026 hearing on his calendar. (Id., P.P.19, 21.) Mr. Carlson states that he agreed to draft this motion based on his excusable neglect in failing to appear at the March 4, 2026 hearing where the stipulation would have been entered, failing to follow up with Mr.

Schivo on the stipulation he offered to draft, and failing to oppose the motion to deem RFAs admitted on April 10, 2026. (Id., P.P.25-28.)

First, Gelbard must establish that the admissions were the result of mistake, inadvertence, or excusable neglect. The Court finds this requirement has been met. Based on Gelbard and Mr. Carlson's declarations, Gelbard was diligent in staying apprised with the matters in this action and followed-up repeatedly with his prior counsel Ms. Cole and relied on Mr. Carlson's representations that his discovery matters would be taken care of. In opposition, Plaintiff concedes that there was no fault on Gelbard's part (Opp. at p.6), but argues that Ms.

Cole did not provide a declaration attesting to her attorney fault and that Mr. Carlson's declaration is insufficient as he was not counsel of record. While Ms. Cole did not provide a declaration of attorney fault, it appears from Gelbard's declaration that there was a breakdown in the attorney-client relationship. Furthermore, despite Gelbard's attempts to obtain Ms. Cole's section 473(b) affidavit regarding the answer, he was unable to get such a declaration. (Plaintiff theorizes in opposition that Ms.

Cole must have refused to sign a false declaration of fault. As Ms. Cole did not provide a declaration regarding the answer or in support of this motion, the Court will not speculate as to the reasons for her refusal.) Nevertheless, the Court finds the first factor has been established based on Mr. Carlson's declaration of attorney fault. While Ms. Cole was involved in the first portion of the discovery issues, Mr. Carlson ultimately stepped in and spoke with Plaintiff's counsel about proposed extensions and stipulations, but he failed to ultimately appear (or secure an appearance attorney) on Gelbard's behalf.

The Court recognizes that Mr. Carlson is not Gelbard's recognized attorney of record in this action, but his involvement in the case shows that Gelbard relied on his representation for the limited discovery matters.

Second, the Court finds that Plaintiff (the party who obtained the admission) will not be substantially prejudiced in maintaining his action on the merits. The action was filed on April 3, 2023, but there is no trial set in this case (a Trial Setting Conference is concurrently set for August 14, 2026); discovery is still open; and Plaintiff has been aware of Gelbard's answer, discovery, and attorney issues since around the time Plaintiff filed his discovery motions. Plaintiff argues Gelbard ignored discovery obligations and hearings, and that "[i]t is hard to conceive of a more prejudicial situation should Gelbard's motion be granted." (Opp. at p.8.)

While the Court recognizes the inconvenience and time Plaintiff and his counsel spent in pursuing discovery, Gelbard offers that any prejudice is remediable by the Court requiring Gelbard to bear reasonable additional costs of discovery, to set a discovery cutoff, or impose monetary sanctions. The Court agrees that such attorney time and costs may be compensable through monetary sanctions.

Finally, "[b]ecause 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.) Thus, the policy of the law favors trial and disposition on the merits of the case. For these reasons, the Motion for Relief from Having Admissions Deemed Admitted and Request to Amend Admissions is granted. Pursuant to C.C.P. Sec. 2033.300(c), the Court has discretion to impose conditions on granting this motion, including: (1) that Plaintiff be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admissions; and (2) an order that costs of any additional discovery be borne in whole or in part by Gelbard.

For future discovery motions, the Court will impose such conditions on Gelbard in Plaintiff's favor.

MOTION TO STRIKE ANSWER ANALYSIS: A.

Legal Standard

C.C.P. Sec. 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by C.C.P. Sec. 2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Court weighs the following factors when considering the present motion: (1) defendants' conduct, indicating whether their actions were willful; (2) the detriment to the party seeking discovery; and (3) the number of formal and informal unsuccessful attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

B.

Discussion

Plaintiff moves to strike Gelbard's answer as terminating sanctions for his willful disobedience of the Court's order. Plaintiff argues that Gelbard willfully disregarded the Court's April 10, 2026 order by belatedly serving responses and for his pattern of abuse. For the reasons discussed above, the Court denies the motion for terminating sanctions and to strike Gelbard's answer.

--- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court's records. ORDER (1) Plaintiff Gagan H. Palrecha's Motion to Strike Gelbard's Answer and (2) Defendant Alex Gelbard's Motion for Relief From Having Admissions Deemed Admitted and Request to Amend Admissions came on regularly for hearing on August 14, 2026, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: DEFENDANT ALEX GELBARD'S MOTION FOR RELIEF FROM HAVING ADMISSIONS DEEMED ADMITTED AND REQUEST TO AMEND ADMISSIONS IS GRANTED.

DEFENDANT IS ORDERED TO SERVE AMENDED RESPONSES ON PLAINTIFF WITHIN FIVE DAYS OF THIS ORDER. PURSUANT TO C.C.P. Sec. 2033.300(C), THE COURT WILL IMPOSES CONDITIONS ON GRANTING THIS MOTION, INCLUDING: (1) THAT PLAINTIFF BE PERMITTED TO PURSUE ADDITIONAL DISCOVERY RELATED TO THE MATTER INVOLVED IN THE WITHDRAWN OR AMENDED ADMISSIONS; AND (2) AN ORDER THAT COSTS OF ANY ADDITIONAL DISCOVERY BE BORNE IN WHOLE OR IN PART BY GELBARD. PLAINTIFF GAGAN H. PALRECHA'S MOTION TO STRIKE DEFENDANT GELBARD'S ANSWER (TERMINATING SANCTIONS) IS DENIED.

DEFENDANT GELBARD TO PROVIDE NOTICE. IT IS SO ORDERED.

Case Number: 23BBCV01105 Hearing Date: August 14, 2026 Dept: A TENTATIVE RULING AUGUST 14, 2026 (CONTINUED FROM JULY 10, 2026) MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION Los Angeles Superior Court Case # 23BBCV01105 MP: Defendants LKQ Pick Your Part and Joseph Perez RP: No opposition received NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear