Judge: Anne Richardson, Case: 21STCV36861, Date: 2023-05-03 Tentative Ruling

Case Number: 21STCV36861    Hearing Date: May 3, 2023    Dept: 40

Background

On October 6, 2021, Plaintiff Shaun Welch initiated this action by filing a Complaint suing Defendants Marwest, LLC and Does 1 through 50 pursuant to claims of: (1) FEHA Retaliation; (2) FEHA Failure to Prevent Retaliation; (3) FEHA Disability Discrimination; (4) FEHA Failure to Accommodate; (5) FEHA Failure to Engage in the Interactive Process; (6) FEHA Race Discrimination; (7) FEHA Failure to Prevent Race Discrimination; (8) FEHA Harassment; (9) Constructive Discharge in Violation of Public Policy; and (10) Whistleblower Retaliation in Violation of Labor Code § 1102.5(c).

On February 10, 2022, Defendant Marwest demurred to the Complaint’s claims on the ground of insufficient pleading. The demurrer was set for hearing on June 28, 2022.

On June 15, 2022—nine court days before the hearing on the demurrer—Plaintiff filed a First Amended Complaint (FAC) as a matter of course, thereby mooting Marwest’s demurrer.

On July 6, 2022, Marwest served on Plaintiff Welch its Requests for Admission (Set One).

On September 26, 2022, due to nonresponse to the FAC, Plaintiff Welch secured an entry of default against Marwest.

On October 4, 2022, Defendant Marwest filed a demurrer to the FAC’s third to eighth and tenth causes of action.

On October 21, 2022, Marwest moved to set aside the September 26, 2022 entry of default.

On October 25, 2022, Marwest filed a motion to deem the July 6, 2022 RFAs admitted and request monetary sanctions from Plaintiff Welch.

On October 27, 2022, in response to an ex parte application, the Court advanced the hearing on the October 21st motion to set aside and granted the same.

On October 31, 2022, Marwest refiled its demurrer to the FAC’s third to eighth and tenth causes of action.

Also on October 31, 2022, Marwest refiled its motion to deem the July 6, 2022 RFAs admitted and request monetary sanctions from Plaintiff Welch.

On December 19, 2022, Plaintiff Welch emailed to Defendant Marwest responses to the July 6, 2022 RFAs.

On March 1, 2023, the Court overruled the refiled October 31st demurrer.

On April 20, 2023, Plaintiff Welch opposed the refiled October 31, 2022 motion to deem RFAs admitted and request for sanctions.

On April 24, 2023, Defendant Marwest replied to the April 20th opposition.

The refiled October 31, 2022 motion to deem the July 6, 2022 RFAs admitted and request for sanctions is now before the Court.

Motion to Deem RFAs Admitted

Legal Standard

The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response.  (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].)  These requests are not automatically deemed admitted; the discovery party must make the motion.  (See Code Civ. Proc., § 2033.280, subd. (b).)

Order Deeming RFAs Admitted: MOOT.

The motion before the Court is MOOT insofar as it seeks to deem the July 6, 2022 RFAs admitted because, on December 19, 2022, Plaintiff Welch served code compliant responses thereto. (See Opp’n, Ex. C [copy of December 19, 2022 responses]; see also Reply, p. 2 [“Plaintiff’s long overdue service of responses to Requests for Admission three months after this motion was filed admittedly renders one part of this motion moot”].)

Sanctions: GRANTED.

The Court must award sanctions when a party’s response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32; see e.g., Appleton v. Superior Court, supra, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].) The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

In connection with the filing of this motion, Defendant Marwest seeks $5,195 in monetary sanctions from Plaintiff Welch and his counsel, Gary Carlin. (Mot., p. 6; Reply, p. 2.) Defense counsel reached this figure through a fee rate of $489 per hour times (1) 2.7 hours drafting, editing, and revising the Notice of Motion and Memorandum of Points and Authorities in support of this motion, (2) 2.8 hours drafting, editing, and revising the supporting declaration, and compiling exhibits, (3) two expected hours to analyze an opposition to this motion, (4) two hours drafting a reply in support of this motion, and (5) one hour preparing for and attending the hearing on this motion, as well as (6) $60 for the filing of this motion. (Mot., Lee Decl., ¶¶ 9-14.)

In opposition, Plaintiff Welch argues that extraordinary circumstances involving counsel caused the delay in filing responses to Requests for Admission (Set One), making imposition of sanctions unjust. (Opp’n, pp. 5-6.) Plaintiff’s counsel clarifies by declaration that in February 2022, he and his wife discovered that their daughter had stolen millions of dollars from their personal bank account, as well as millions of dollars from counsel’s law firm’s operating account—in addition to racking up hundreds of thousands of dollars in credit card charges in the names of counsel and his wife—devastating Plaintiff’s counsel to a degree that he has for 13 months had difficulties focusing on work, taking care of his business, and dealing with various personnel issues at work, e.g., losing seven attorneys and four paralegals in that time. (Opp’n, Carlin Decl., ¶¶ 1-6.) Based on these circumstances, counsel requests that the Court not impose sanctions. (Opp’n, Carlin Decl., ¶ 7.)

In reply, Marwest argues that sanctions are mandatory here, that Plaintiff’s counsel merely offers his daughter as a scapegoat, that sanctions are merited based on their five-month delay, and that this hearing would have occurred sooner but for the entry of default secured by Plaintiff against Marwest. (Reply, pp. 2-5.)

Though the Court recognizes the strife Plaintiff’s counsel has had to endure, the Court agrees with Defendant Marwest. The Code of Civil Procedure is clear in providing that “[i]t is mandatory that the court impose a monetary sanction … 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).) The Court has no discretion to deny sanctions on the ground that they are unjust. (Compare Code Civ. Proc., § 2033.280, subd. (c) [mandatory sanctions with no exception for nonresponse to RFA within prescribed time], with Code Civ. Proc., § 2031.300, subd. (c) [mandatory sanctions with two exceptions for nonresponse to production requests within prescribed time].)

The Court also finds that the fees sought by Marwest are reasonable in fee and hours expended in relation to this motion.

Defendant Marwest’s request for sanctions is thus GRANTED in the amount of $5,195, jointly and severally against Plaintiff Welch and Plaintiff’s counsel, Gary Carlin.

Conclusion

Defendant Marwest LLC’s Motion to Deem Admitted Requests for Admission Nos. 1-14 is MOOT because Plaintiff Shaun Welch provided responses to the admission requests on December 19, 2022.

Defendant Marwest LLC’s Request for Sanctions is GRANTED in the amount of $5,195, jointly and severally against Plaintiff Welch and Plaintiff’s counsel, Gary Carlin.

Due to the extraordinary circumstances before the Court, however, Welch and Carlin are DIRECTED TO REMIT PAYMENT of the sanctions WITHIN 90 DAYS of notice of this order.