Judge: Anne Hwang, Case: 23STCV21433, Date: 2024-11-05 Tentative Ruling

Case Number: 23STCV21433    Hearing Date: November 5, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Mikayel Tumanyan (“Plaintiff”) moves to deem Requests for Admission, Set One admitted. Defendant Alejandro Gonzalez opposes and Plaintiff replies.

BACKGROUND

This case involves an automobile accident whereby on January 27, 2023, Plaintiff Mikayel Tumanyan (“Plaintiff”) alleges Defendant Alejandro Gonzalez (“Defendant Gonzalez”) negligently operated and backed up his motor vehicle as to collide with the front of Plaintiff’s parked vehicle, who was unrestrained at that moment.

 The complaint was filed on September 6, 2023, for two causes of action: (1) negligence; and (2) negligence per se based on violation of California Vehicle Code § 22106 against Defendant Gonzalez.

Defendant Gonzalez filed an answer on October 17, 2023.

On January 22, 2024, Plaintiff Tumanyan filed an Amendment to Complaint, having discovered the true name of defendant Doe 1 to be Co-Defendant Alma Rodriguez (“Rodriguez”)

On April 9, 2024, Defendant Rodriguez filed her answer and demand for jury trial.

Non-jury trial is scheduled on March 5, 2025.

On October 9, 2024, Plaintiff filed the instant Motion for Order that Matters in Request for Admissions be Deemed Admitted against Defendant Alejandro Gonzalez, along with the Declaration of Plaintiff’s attorney, Adam J. Krolikowski. Plaintiff’s proposed order was filed subsequently on October 21, 2024. Also on October 21, 2024, Defendant Gonzalez filed his Opposition or otherwise “Declaration of Michael T. Haw (“Haw Decl.”) to which Plaintiff replied to on October 29, 2024.

ANALYSIS

Legal Standard

 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).) 

Discussion

On July 11, 2024, Plaintiff Tumanyan propounded and served on Defendant Gonzalez, Request for Admissions, Set One (“RFAs”) and now moves the Court for an order pursuant to Sections 2023.010 et seq. and 2033.280 of the Code of Civil Procedure (“CCP”) that the truth of all specified matters and documents in said RFAs be deemed admitted. (Mot., pg. 2.) Plaintiff makes the instant motion on the grounds that Defendant Gonzalez failed to serve timely verified responses to Plaintiff Tumanyan’s RFAs and, instead, Defense Counsel served unverified responses on July 26, 2024. (Id.) Defense Counsel included the following statement in the unverified responses:

“UNVERIFIED RESPONSE We have been unable to communicate with Defendant, ALEJANDRO GONZALEZ, and are therefore unable to provide verified responses to this Request For Admission. However, in the spirit of discovery we have provided unverified responses based on the information known. If the information is not known, no information is provided.”

(Krolikowski Decl., ¶ 2,Ex B.)

Plaintiff asserts that unsworn responses are tantamount to no responses at all. (See Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal. App. 4th 1546, 1550–1551, 67 Cal. Rptr. 2d 804, disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983 n.12, 90 Cal. Rptr. 2d 260, 267, 987 P.2d 727; Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636, 253 Cal. Rptr. 762.)

In sum, Plaintiff concludes that Defendant’s unverified and unsworn responses are deemed under the law as no response, as well as a failure to serve a timely response and argues that the Court should deem the underlying RFAs admitted due to Defendant’s unverified and untimely responses. Plaintiff further argues that a failure to serve a timely response waives any objections to the requests, including based on privilege or on the protection for work product under CCP §§ 2018.010 et seq. and 2033.280(a).

In response, Defense Counsel, Michael T. Haw submits a declaration (“Haw Decl.”) in lieu of an Opposition. (Haw Decl., ¶ 2.) Counsel Haw declares that on October 4, 2023, his office received the file for this case and began attempts to make contact with Defendant Gonzalaz and on October 17, 2024, made contact with Defendant Gonzalez. (Id., ¶¶ 4-5.) At that time, Counsel Haw obtained permission to represent Gonzalez in the matter and filed Gonzalez’s Answer to the Complaint. (Id., ¶ 5.)

On July 22, 2024, Haw’s office tried to contact Defendant without success. (Id., ¶ 18.) On July 25, 2024, Haw’s office initiated a claimant search with Loya Insurance Group to locate and make contact with Defendant. (Id., ¶ 20.) Defense Counsel also contacted Plaintiff’s Counsel to request a one-day extension for Defendant’s responses to Plaintiff’s RFAs which Plaintiff granted. (Id., ¶ 20.) On July 26, 2024, Defense Counsel again received a response from the claimant search that they were unsuccessful in locating Defendant Gonzalez. (Id., ¶ 21.) Thus, Defense Counsel served Defendant’s unverified responses to Plaintiff’s RFAs upon Plaintiff’s Counsel. (Id.) From August 1, 2024 until August 27, 2024, Defense Counsel continuously sought updates on claimant’s search and consistently received the response that they were unsuccessful in locating Defendant. (Id., ¶¶ 22-26.)

Then, on August 28, 2024, Defense Counsel retained a private investigator to locate Defendant which who notified Defense Counsel on September 3, 2024, that they had made contact with Defendant. (Id., ¶¶ 27-28.) Defense Counsel then subsequently attempted to make contact with Defendant on September 27, October 14, and October 15 of 2024 but were unsuccessful in making contact with Defendant thereafter. (Id., ¶ 30-32.) Nevertheless, Defense Counsel argues that the instant motion should be denied on the grounds that Plaintiff’s Counsel did not engage in meaningful meet and confer efforts as required by CCP § 2016.040. (Opp., pg. 3.) Defense argues that Plaintiff’s unfulfilled meet and confer obligations is basis alone to deny the instant motion. (Id.)

In Reply, Plaintiff argues Defendant offers no legal authority in its Opposition for the denial of the instant motion. (Reply, pg. 1.) Furthermore, Plaintiff argues that this Court is required to enter an order deeming admitted the matters specified in the RFAs unless it finds that the responding party has served, before the hearing on the motion, a proposed response “that is in substantial compliance with Section 2033.220.” (Reply, pgs. 1-2.) Given an unverified response is not in “substantial compliance” with the Code, Plaintiff argues that the instant motion must be granted and the RFAs must be deemed admitted. (Id.)

Because no verified responses have been provided, the motion is granted.

CONCLUSION AND ORDER

The Court GRANTS Plaintiff’s Motion to Deem RFAs, Set One Admitted.

Plaintiff shall give notice of this order and file a proof of service of such.