Judge: Andrew E. Cooper, Case: 23CHCV01661, Date: 2024-08-01 Tentative Ruling

Case Number: 23CHCV01661    Hearing Date: August 1, 2024    Dept: F51

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

(Requests for Admission, Set Two)

Motion Filed: 2/26/24

MOVING PARTY: Defendant/Cross-Complainant Les R. Barabas (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Weston Middleton (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order deeming each of Moving Defendant’s Requests for Admission (“RFAs”), Set One, propounded on Plaintiff, be admitted. Moving Defendant further requests monetary sanctions against Plaintiff and/or his counsel in the amount of $3,725.00.

TENTATIVE RULING: The motion is moot. The Court imposes sanctions against Plaintiff’s counsel in the amount of $1,000.00 payable within 45 days.

BACKGROUND

This is a property action in which Plaintiffs own a residential property located at 24546 Golden Oak Lane, Newhall, California 91321. (Compl. ¶ 1.) Defendants Les R. Barabas and Tina Barabas allegedly own a residential property located at 24506 Golden Oak Lane, Newhall, California 91321. (Id. at ¶ 2.) Defendants Benjamin Thursby and Shawn Palmer allegedly own a residential property located at 21166 Placerita Canyon Rd., Santa Clarita, California 91321. (Id. at ¶ 3.) Defendants’ homes are located upslope from Plaintiffs’ home. (Id. at ¶¶ 6–7.)

Plaintiffs allege that on 2/24/23–2/25/23, due to heavy downpours of rain in the area, “the interconnected drainage swale system on defendants’ properties failed, including the collapse of a portion of the interconnected drainage swale, resulting in a very substantial mudslide onto plaintiffs’ property.” (Id. at ¶ 9.) “Plaintiffs are informed and believe and on that basis allege that prior to the February 25, 2023 mudslide, defendants negligently, carelessly and unreasonably allowed soil build-up in the interconnected drainage swales located on defendants’ respective properties, preventing the swales from directing storm water off the subject slope and away from plaintiffs’ property.” (Id. at ¶ 10.)

On 6/7/23, Plaintiffs filed their complaint, alleging against Defendants the following causes of action: (1) Continuing Private Nuisance; (2) Continuing Trespass; and (3) Negligence. On 7/17/23, defendants Thursby and Palmer filed their answer and cross-complaint, alleging against both Barabas defendants the following causes of action: (1) Declaratory Relief; (2) Negligence; (3) Private Nuisance; (4) Trespass; (5) Negligent Trespass; (6) Indemnity; and (7) Contribution.

On 8/17/23, the Barabas defendants filed their answers to Plaintiffs’ complaint and Thursby and Palmer’s cross-complaint. On 8/17/23, the Barabas defendants filed their cross-complaint, alleging against Thursby and Palmer the following causes of action: (1) Equitable Indemnification; (2) Comparative Contribution, Partial Indemnification; (3) Apportionment of Fault; and (4) Declaratory Relief.

On 8/17/23, Moving Defendant served Plaintiff with his RFAs, Set One. On 2/26/24, Moving Defendant filed the instant motion to deem his RFAs as admitted. On 7/23/24, Plaintiff filed his opposition. On 7/24/24, Moving Defendant filed its reply.

ANALYSIS

A responding party must respond to each propounded request for admission with either a substantive answer or an objection to the particular request. (Code Civ. Proc. § 2033.210.) 

A propounding party may move for an order deeming the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted if the responding party fails to serve a timely response within 30 days. (Code Civ. Proc. §§ 2033.280, subd. (b); 2033.250, subd. (a).) Furthermore, the responding party who fails to serve a timely response “waives any objection to the requests, including one based on privilege or on the protection for work product” unless the Court grants it relief upon motion. (Code Civ. Proc. § 2033.280, subd. (a).) “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Id. at subd. (c).)

Here, as Moving Defendant electronically served his RFAs on Plaintiff by mail and email on 8/17/23, the last day for Plaintiff to serve his response was 9/20/23. (Ex. A to Decl. of Scott Robert Bell); Code Civ. Proc. § 2030.260, subd. (a).) As Defendant failed to timely serve his response to Plaintiff’s RFAs, Defendant has consequently waived any objections thereto. (Code Civ. Proc. § 2033.280, subd. (a).) Plaintiff argues in opposition that the instant motion is moot because on 7/9/24, he served his objection-free responses to Moving Defendant’s first set of RFAs and Form Interrogatories. (Opp. 1:18–2:7; Ex. 1 to Decl. of Mark Adams Poppett.) The Court therefore finds that the instant motion is moot, with the only outstanding issue being monetary sanctions against Plaintiff’s counsel.

Sanctions¿ 

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc. § 2033.280, subd. (c).) Additionally, “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Moving Defendant requests monetary sanctions in the total amount of $3,725.00 to be imposed on Plaintiff and/or his counsel. This amount includes: (1) 7 hours of Moving Defendant’s attorney’s time spent working on this motion; (2) an anticipated 3 hours reading Plaintiff’s opposition and drafting a reply; (3) and 0.5 hours to appear at the instant hearing, at his hourly billing rate of $350.00 per hour. (Bell Decl. ¶ 13.) Moving Defendant also seeks to recover $60.00 in filing fees. The Court notes that the claimed fees total $3,735.00.

In opposition, Plaintiff argues that the Court should reduce the requested amount because Plaintiff’s counsel encountered circumstances with his home and personal illness, “resulting in no cover to pick up some of the slack of the backlog created by the above events over which attorney Poppett had little control.” (Opp. 5:8–10; Poppett Decl. ¶¶ 10–20.)

The Court notes that Code of Civil Procedure section 2033.280, subdivision (c) imposes a mandatory monetary sanction against a party or attorney whose failure to serve a timely response necessitates a motion to deem RFAs admitted. Therefore, in granting the instant motion, the Court finds it reasonable to award Moving Defendant sanctions against Plaintiff’s counsel in the amount of $1,000.00. 

CONCLUSION 

The motion is moot. The Court imposes sanctions against Plaintiff’s counsel in the amount of $1,000.00 payable within 45 days.