Wells Fargo Bank, National Association vs. Gallegos

objections, a signature from the attorney may be required, but not a verification from the client. (Code Civ. Proc., § 2033.240, subd. (a).) Thus, a failure to provide a verification for objection-only responses does not challenge the timeliness of the responses served, or result in a waiver of objections.

The Court notes that Plaintiff also cites to CCP section 2033.290 in his notice of motion. However, the notice of motion does not otherwise request relief in the form of an order compelling further responses. Rather, a request for “alternative” relief is buried in a single sentence on page 18 of the memorandum. The Court finds this notice was insufficient. But, even if the Court were to overlook the notice defect, the alternative request would still be denied because Plaintiff did not comply with the meet and confer or separate statement required by the Code for a motion to compel further response. (Code Civ.

Proc., § 2033.290, subd. (b)(1) [meet and confer requirement]; Cal. R. Ct. Rule 3.1345(a)(1) [separate statement requirement].) The fact that Plaintiff is self-represented does not excuse his compliance with the Code. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)

In prevailing on its opposition to this motion, Defendant Ascensus, LLC is awarded $2,700 in reasonable monetary sanctions against Plaintiff Luke Soule. (Code Civ. Proc. § 2033.290, subd. (d).) The sanctions are payable to Defendant’s counsel, Thompson Hine LLP, within 30 days.

Defendant shall give notice of the ruling.

Case Management Conference – continued to 9/14/26 @ 1:30 p.m. 13 Wells Fargo Motion to Vacate Order Granting Summary Judgment Bank, National Association vs. Defendant Roberto F. Gallegos’ (“Defendant”) Motion To Vacate Order Granting Summary Judgment is denied. Gallegos Defendant moves, under Code of Civil Procedure (the “Code”) sections 473(b) and 2033.300, to vacate the Order granting Plaintiff 2009-00309425 Wells Fargo Bank, National Association’s (“Plaintiff”) motion for summary judgment, which was entered on 3/16/26 (ROA 191).

Plaintiff filed its Complaint in this action on 10/7/09. (ROA 1.) A default judgment was entered on 4/19/10. (ROA 16.) Defendant filed a motion to vacate default judgment on 2/23/24. (ROA 44.) The Court granted Defendant’s motion on 5/30/24, after finding deficiencies in

the substitute service that had purportedly been accomplished. (ROA 64.) After unsuccessfully demurring to the Complaint (ROA 104), Defendant filed an answer on 2/6/25. (ROA 105.)

On 4/23/25, Plaintiff filed a motion for order deeming its first sets of requests for admission admitted, after Defendant failed to serve responses to the requests served on 2/26/25. (ROA 121.) On 9/8/25, the Court granted the motion and deemed the matters in the requests admitted after Defendant failed to oppose the motion or show that Code-compliant responses had been served before the hearing. (ROA 143.)

On 10/28/25, Plaintiff filed a motion for summary judgment, which was supported by both the deemed admissions and evidence that had separately been proffered in support of the motion. The moving papers included: a notice of motion, memorandum of points and authorities, evidence, a separate statement, and a proof of service. (ROA 153, 155, 157-159.) Defendant filed a motion for judgment on the pleadings on 2/3/26, wherein he argued that Plaintiff’s claims were time-barred (ROA 177), but he did not file an opposition to the MSJ, nor did he request a continuance of the MSJ hearing.

After taking the MSJ under submission, the Court issued an order granting the motion, on 3/16/26, based on the evidence submitted in support of the motion, the deemed admissions, and in the exercise of the Court’s discretion under CCP section 437c(b)(b) (i.e., for failure to submit an opposing separate statement where the moving party has met its initial burden). (ROA 191.)

Presently, Defendant contends the Order granting summary judgment should be vacated “on the grounds of excusable neglect, medical incapacity, and in the interests of justice.” (Mot. at p. 2.)

Code section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party. A motion for discretionary relief under section 473(b) must satisfy three requirements. First, the motion must be made “within a reasonable time” and “in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civ. Proc., § 473, subd. (b).) Second, the motion must show that the “judgment, dismissal, order, or other proceeding taken against [the moving party]” was taken as a result of “mistake, inadvertence, surprise, or excusable neglect.” (Code of Civ. Proc., § 473, subd. (b).) Lastly, the motion “shall be accompanied” by a copy of the answer or other proposed pleading to be filed, “otherwise the application shall not be granted.” (Code of Civ. Proc., § 473, subd. (b).) “The party seeking relief . . .

bears the burden of proof in establishing a right to relief,” and must establish both “a satisfactory” excuse and “diligence in making the motion.” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

Code section 2033.300 permits a party, upon noticed motion and leave of court, to “withdraw or amend an admission made in response to a request for admission.” (Code Civ. Proc., § 2033.300, subd. (a).) As noted in Rutter, although section 2033.300 “refers only to withdrawal or amendment of an admission, this includes admissions deemed admitted by the court under CCP § 2033.280(b) for failure to respond.” (Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 8:1386, emphasis in original.) The showing required for relief under section 2033.300 is similar to the showing required for relief under section 473, except that the former also requires 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.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)

The Court finds Defendant is not entitled to relief under section 473(b), because he has not shown that the Order was the result of his excusable neglect. Even if the Court were to consider the evidence Defendant submits with his reply papers, the evidence fails to convince the Court that his failure to oppose the MSJ was due to excusable neglect. The Court does not doubt that Defendant suffered from health conditions that would have interfered with his ability to present a defense from November 2025 through January 2025. The opposition to the MSJ was not due until on or about 2/10/26. Despite being able to file the MJOP on 2/3/26, Defendant did not file an opposition to the MSJ, nor did he even seek so a continuance of the hearing.

Defendant is not entitled to relief under CCP section 2033.300, because he has never brought a motion for relief from the deemed admissions. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31 [selfrepresented litigant was not “entitled to submit belated responses to the request for admissions without first moving the court to have the deemed admissions withdrawn, which she failed to do”].) In his motion, Defendant claims “the Court did not address Defendant’s request to withdraw deemed admissions.” (Mot. at p. 2.) However, he fails to point to any filing in the record that shows a motion was ever properly before the Court. Plaintiff claims he “became seriously ill beginning July 4, 2025,” but he fails to proffer any evidence showing he was unable to respond to the RFA or oppose the motion to deem RFA admitted from March 2025 through September 2025.

Finally, the Court notes that Defendant has not submitted a proposed pleading. The Court could construe the tardy opposition he filed to the MSJ, on 2/24/26, as his proposed pleading (ROA 186), but it would not change the result of the ruling. Defendant opposed the MSJ on the grounds that: the default judgment had been declared void; “material issues remain regarding jurisdiction, service of process, and the procedural posture of this action following the Court’s order vacating judgment”; and, “the prior void judgment and procedural irregularities preclude summary judgment.” (ROA 186 [Opp’n at pp. 2-3].) None of these arguments have merit.

First, the prior default judgment has no bearing on the MSJ that followed after the Court granted Plaintiff relief from the default judgment. The Order granting the MSJ does not rely, at all, on the prior default judgment. (ROA 191.) Second, after Defendant had been granted relief from the default judgment, to the extent there were still any issues regarding personal jurisdiction or service of process, they were waived by the fact that Defendant filed an answer to the complaint on 2/6/25 (ROA 105). (Code Civ.

Proc., § 410.50; Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) Third, Defendant did not explain what “procedural irregularities” would have prevented the Court from granting summary judgment. To the contrary, the record shows the MSJ was properly supported by a notice of motion, memorandum of points and authorities, evidence, a separate statement, and a proof of service. (ROA 153, 155, 157-159.)

Lastly, Plaintiff still has not submitted a proposed opposing separate statement. Thus, the Order granting the MSJ would still be appropriate, because the Court exercised its discretion “under CCP section 437c(b)(3), to grant the motion on the grounds that Defendant did not submit an opposing separate statement” (and after finding Plaintiff had met its initial burden). (ROA 191.)

For all the foregoing reasons, Defendant’s motion is denied.

Plaintiff shall give notice of the ruling.