Carli v. Superior Court

Opinion

BUTLER, J.

On August 10, 1983, counsel for real party mailed a set of requests for admissions and two sets of interrogatories to counsel for petitioners. The law clerk for petitioners’ counsel prepared rough answers to the interrogatories; counsel dictated that which he wanted typed and promptly forgot the matter believing all had been attended to.

On September 21, 1983, petitioners’ counsel received the letter of September 19, 1983, stating real party deemed his requests to be admitted. A search ensued, a missing tape was found and the following day the response to the request for admissions was typed and mailed. During the period in question, the office of petitioners’ counsel was in turmoil. One of the firm’s three attorneys had just left the firm, leaving a case load of some 150 cases. Counsel was preparing for jury trial in San Diego and two appeals were in their final stages of preparation. In addition to the two full-time secretaries, six temporary secretaries were hired consecutively over two and a half months. The daughter of one of the full-time secretaries, the wife of one of the associates, the secretary from next door, all came in to help. A new associate was hired; another law clerk was engaged. The missing tape was found under a stack of papers supposedly of nonurgent office filings.

[1098]

More than a week passed after mailing the response to the requests for admissions and petitioners heard nothing. Carli telephoned real party but was unable to make contact; he wrote him a letter explaining the circumstances causing the default. At a deposition the next week, petitioners asked real party if he would stipulate to relieving petitioners of the oversight. Real party said he would think about it. Thus, on October 20, 1983, having heard nothing, petitioners prepared a formal motion to set aside the default. The next day counsel in San Diego was served personally, while counsel in Sacramento and the court were served by mail. That same day, October 21, 1983, petitioners received a letter from real party declining to stipulate. The superior court in El Centro stamped the motion to set aside default on October 26, some 35 days after the letter deeming the requests admitted had been received.

Code of Civil Procedure