Enfantino v. Superior Court

Opinion

BARRY-DEAL, J.

Code of Civil Procedure section 2033, subdivision (a),

1

permits an application for relief from default by a party who has failed to respond to requests for admission. Petitioner’s application was rejected by the trial court, not because grounds for relief had not been stated, but solely because the application for relief was not filed within 30 days of

actual

notice of the default. We conclude that the 30-day period begins to run only when notice has been given “by certified or registered mail, return receipt requested,” as prescribed by section 2033, subdivision (a).

Petitioner is the plaintiff in an action asserting 15 causes of action against a Texas corporation and 2 individuals. On December 21, 1983, petitioner

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received a lengthy set of interrogatories with requests for admissions interspersed therein. On February 21, 1984, petitioner having failed to respond, defendants sent by regular mail their “notice of unanswered requests for admission.” Petitioner admits having received the notice. Petitioner did not move for relief within 30 days of actual notice, but approximately 5 months after actual notice sought relief on several grounds. Defendants opposed the motion, and it was denied for “lack of jurisdiction.” This petition followed.

Section 2033, subdivision (a), provides in pertinent part: “. . . Upon failure of a party served with requests for admissions pursuant to this section either to answer or to file objections within the period as designated in the request or as extended by the court, the party making the request may serve upon the other party a notice in writing

by certified or registered mail, return receipt requested,

notifying the party so served that the genuineness of the documents or the truth of the facts has been deemed admitted. Once the notice is served, the party upon whom the notice is served shall not have the right to apply for relief under the provisions of Section 473 unless a motion requesting relief is served and filed within 30 days after service of the notice.” (Italics added.) Petitioner contends that the 30-day limitation on a motion for relief from default is tied to the requirement of service by certified or registered mail, and that the period does not begin with actual notice where improper service has taken place. Petitioner also argues the merits of the motion for relief from default.