Matthews, Kimberly Anne et al vs. California Department of Forestry and Fire Protection et al

In Taylor v. Superior Court (1979) 24 Cal.3d 890, the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident. (Id. at 895)

The California Supreme Court found a sufficiently pleaded claim for punitive damages where a plaintiff included allegations regarding the defendant's history of driving under the influence and previous involvement in criminal legal proceedings to show that defendant was aware of the dangerousness of his driving while intoxicated. (Id. at 893.)

Here, there is no application of Taylor, where no prior drunk driving conviction is alleged or pending drunk driving charge.

In Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, the plaintiff's punitive damages claim was supported by allegations that "the defendant ... while intoxicated, was ... driving a 1967 Ferrari automobile; ... made a righthand turn ... without stopping at the stop sign controlling traffic and proceeded in an easterly direction on said ... [s]treet, zigzagging in and out of traffic, in a designated 35 mile per hour zone, and gaining speed until he was traveling in excess of 65 miles per hour, with reckless disregard of the probable consequences of said conduct and with reckless disregard of the safety of others." (Id., at 86.)

The plaintiff had further alleged the defendant "...knew that he was intoxicated and knew that he was operating said 1967 Ferrari at a speed in excess of 65 miles per hour in a 35 mile per hour zone, on a Sunday afternoon, in a marina visited by many persons, and with knowledge that probable serious injury would result to persons in the area as a result of said conduct, and with reckless disregard of the safety of others, including [the plaintiff]." (Id.)

In addition the complaint alleged that, "immediately following the accident [the defendant] and his fellow employee and passenger ... falsely and fraudulently informed the investigating California Highway Patrol officer that [the passenger] was operating the vehicle when it struck the minor; and that this was done for the purpose of obstructing the investigation and [defendant's] avoiding responsibility." (Id.)

In contrast to Dawes, the allegations of the operative complaint do not belie the despicable conduct reflected in the conduct of an intoxicated driver zigzagging in and out of traffic, traveling 65 mph in a crowed area, and who deliberately attempted to mislead investigating law enforcement as to his involvement in the accident.

The Court does not find that affirmatively denying consumption of alcohol is equivalent to the fraudulently informing law enforcement that another person was operating the motor vehicle.

Further, that the other Vehicle Code violations alleged are insufficient to meet the standard set forth in Dawes.

Therefore, the Court grants the motion to strike.

The Court applies the same standard as to leave to amend that it applies on demurrer: Leave to amend should be granted where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.)

Therefore, the Court will permit Plaintiff ten (10) days to file an amended complaint as to the issue of punitive damages.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Matthews, Kimberly Anne et al vs. California Department of Forestry and Fire Protection et al Case No.: PCU317529 Date: September 8, 2026 Time: 8:30 A.M. Dept. 19-The Honorable Russell P. Burke

Motion: Defendant State's Motion to Amend Responses to Request For Admission No. 21 Tentative Ruling: To grant the motion.

Facts

In this matter, Plaintiffs allege injury based on an incident that occurred on December 21, 2023, at the residence of Defendant Tyler Attebury, an employee of Defendant State of California by and through CalFire. Plaintiffs allege Defendant Attebury placed an explosive fire suppression device into or near a firepit, which caused the device to explode.

On January 28, 2026, Plaintiffs served Form Interrogatories, Set Two, Requests for Admissions, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One, to Defendant State. Responses to these requests were served March 3, 2026.

Form Interrogatories, Set Three, Requests for Admissions, Set Two, Special Interrogatories, Set Two, and Requests for Production of Documents, Set Two, with a defined term for "DEVICE" were served on CAL FIRE on June 4, 2026.

Amended responses to Form Interrogatories, Set Two, Requests for Admissions, Set One, Special Interrogatories, Set One, and Requests for Production of Documents, Set One were served on June 24, 2026.

At issue here is Request for Admission No. 21, which states: REQUEST FOR ADMISSION NO. 21: Admit that CAL FIRE policies incorporated requirements under Health & Safety Code Sec.12151 regarding safe storage of QuickFire device, including the DEVICE.

Defendant State initially responded: Responding Party objects to this Request as vague, ambiguous and unintelligible as propounded, as Responding Party is unaware of the definition plaintiff attributes to the term "DEVICE" as plaintiff does not identify, describe, or define this term, and Responding Party is accordingly unable to determine what plaintiff refers to as Responding Party is informed and believes that Attebury used multiple types of ignition devices during the incident forming the basis of plaintiffs' complaint. Subject to the foregoing, Responding Party answers as follows: Responding Party denies this Request to the extent it relates to the privately owned FireQuick device used by Attebury.

Defendant State amended the response to state: Subject to and without waiving the foregoing, admit. The FireQuick products purchased by Responding Party are deemed a flammable solid, category 1 per the Safety Data Sheet, not an explosive.

Defendant State, therefore, notes this amended response: "...mistakenly "admits" that CAL FIRE has policies that have incorporated requirements under Health & Safety Code Sec.12151 regarding safe storage of a "QuickFire device." This is inaccurate as the amended response was incomplete and omitted the statement that CAL FIRE admits it has policies that incorporate requirements for the storage of explosives for devices that meet the definition of an explosive, and explicitly deny that FireQuick products are considered an explosive because they are classified as a flammable solid per the Safety Data Sheet. (Id., at P.8.)

Thus, as read, counsel mistakenly admitted the request and provided a qualifying answer stating that the device in question (FireQuick, which plaintiffs mistakenly refer to as "QuickFire"), is not an explosive, but a flammable solid per it's Safety Data Sheet. (Id.)

CAL FIRE's position throughout this litigation has been that the FireQuick devices are not considered explosives, because they are considered a flammable solid as set forth in the Safety Data Sheet 0F 1. (Reyes Decl., at P.9.)

Furthermore, CAL FIRE does not have policies that incorporate requirements under Health & Safety Code Sec.12151 regarding the storage of the FireQuick devices because they are not deemed or classified as explosives, and therefore not subject to the requirements of section 12151 since this statute relates specifically to explosives. As set forth in its responses, CAL FIRE stores FireQuick devices as required per the Safety Data Sheet. (Id.) However, CAL FIRE does have policies regarding the storage of explosives that meet the definition under Health and Safety Code Sec.12151." (Motion 7:13-28, 8:1-5.)

The proposed further amended response to No. 21 is: "Responding Party" (CAL FIRE) admits it has policies that incorporate requirements for the storage of explosives for devices that meet the definition of an explosive. Responding Party denies that the FireQuick products it purchases are explosives as they are deemed a flammable solid, category 1 per the Safety Data Sheet."

No opposition appears filed.

Authority and Analysis

Under Code of Civil Procedure section 2033.300 subdivision (a), a party may withdraw or amend an admission on leave of court granted after notice to all parties. (Code Civ. Proc., Sec.2033.300(a).)

Under Code of Civil Procedure section 2033.300(b), the court may permit withdrawal or amendment of an admission if the admission was the result of mistake, inadvertence, or excusable neglect, and if the court finds that the party who obtained the admission will not be substantially prejudiced in maintaining its action or defense on the merits. (Code Civ. Proc., Sec.2033.300(b).)

"The statutory language 'mistake, inadvertence, or excusable neglect' (Sec.2033.300, subd. (b)) is identical to some of the language used in section 473, subdivision (b)." (New Albertsons, Inc., supra, 168 Cal.App.4th at 1418.)

"[T]he 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)." (Id. at 1419.)

Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 1489 notes a motion to withdraw or amend an admission "would have been granted as long as the trial court determined that [defendant's] mistake in admitting the matter was not clearly inexcusable and withdrawal would not substantially prejudice [plaintiff]."

"Section 2033.300 eliminates undeserved windfalls obtained through requests for admission and furthers the policy favoring the resolution of lawsuits on the merits. [Citation.]" (New Albertsons, supra, 168 Cal.App.4th at p. 1418.)

While the Court's discretion is not unlimited, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief. (Id. at 1420-1421.)

The trial court's discretion to deny a motion for relief based on the failure to establish excusable neglect is limited to circumstances where inexcusable neglect is clear. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, superseded by statute on another basis as described in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65.)

Further, denial of relief is appropriate where the discovery violations are willful. (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 906.)

An order denying discretionary relief under section 473 is more carefully scrutinized on appeal than an order permitting trial on the merits. (Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 535, 94 Cal. Rptr. 3d 313.)

Attorney error can constitute excusable neglect, depending on the nature of the error and whether counsel was otherwise diligent. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, 278)

If the neglect by counsel is of the excusable variety, relief may be warranted. (Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1018.) However, if an attorney's neglect is inexcusable, it is imputed to the client, and does not warrant relief. (Id.)

Under Code of Civil Procedure section 473, subdivision (b), "[t]he test of whether neglect was excusable is whether '"a reasonably prudent person under the same or similar circumstances" might have made the same error. [Citations.]' [Citation.]" (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.)

"A 'mistake' justifying relief may be either a mistake of fact or a mistake of law. 'A mistake of fact exists when a person understands the facts to be other than they are; ...' [Citation.]" (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.)

For example, "[a] mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction." (Id. at 1369.)

Finally, "'"[t]he inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied."'" (McClain v. Kissler (2019) 39 Cal.App.5th 399, 414-415.)

Here, the Court finds sufficient mistake and/or inadvertence, that the amended response admits, incorrectly, that Defendant State has policies under Health and Safety Code section 12151 (as to explosives) that apply to the device, where Defendant State takes the position that the device is not an explosive device subject to those requirements.

The Court agrees that no discernable prejudice to Plaintiffs is present via permitting this proposed amendment. This matter is set for jury trial approximately 11 months from this hearing date. This permits time to meet and confer as to this amended response, to propound further discovery on this issue and/or conduct a deposition on this issue.

Therefore, the Court grants the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia Division Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared August 26, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

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