Judge: Anne Richardson, Case: 22STCV10864, Date: 2023-08-21 Tentative Ruling

Case Number: 22STCV10864    Hearing Date: March 19, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff North Mariposa Solutions L.P. (North Mariposa) sues Defendant Derrick Paine and Does 1 through 10 pursuant to a March 30, 2022, Complaint alleging claims of (1) Breach of Contract, (2) Unjust Enrichment, (3) Breach of Fiduciary Duty, and (4) Common Counts.

The claims arise from allegations that, while performing property management duties on behalf of Plaintiff—e.g., collecting rent from properties owned by Plaintiff and managed by Defendant—Defendant Paine withheld and kept for himself $32,870.58 in monies he should have turned over to Plaintiff North Mariposa.

B. Relevant Procedural History

On October 26, 2022, Plaintiff North Mariposa served Defendant Paine with Request for Production of Documents (RPDs), Set One, Form Interrogatories (FROGs), Set One, Special Interrogatories (SROGs), Set One, and Requests for Admission (RFAs), Set One.

Defendant Paine did not provide verified responses within the permissible timeframe.

On December 13, 2022, Defendant Paine served responses to Request for Production of Documents, Set One, Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Admission, Set One. Such responses contained various objections and/or statements of compliance indicating that Defendant Paine would produce responsive documents as they were found to exist and/or that Defendant Paine reserved the right to supplement, amend, or alter his responses.

On January 10, 2023, Plaintiff’s counsel reached out to Defendant Paine’s counsel, seeking out to inquire via voicemail as to when actual responses to the discovery would be provided.

On January 12, 2023, Plaintiff’s counsel received an email from Defendant Paine’s counsel indicating that despite numerous attempts, Defendant Paine’s counsel had had no contact with its clients for quite some time.

On January 18, 2023, Plaintiff’s counsel set a meet and confer letter to Defendant Paine’s counsel, seeking supplemental responses to the discovery requests by January 20, 2023.

On January 25, 2023, Plaintiff’s counsel called Defendant Paine’s counsel’s office one last time seeking an update on supplemental responses, with Defendant Paine’s counsel indicating that Defendant Paine had not responded to his counsel’s attempts to contact him.

That same day, Plaintiff North Mariposa filed a motion to compel further responses and/or production to RPDs, SROGs, FROGs, and RFAs, Set One, as well as for monetary sanctions.

On February 8, 2023, Tom Roddy Normandin, Esq.—counsel for Defendant Paine—filed a motion to be relieved as counsel, citing a complete breakdown in communications with Defendant Paine, who refused to communicate with counsel in any fashion.

On March 24, 2023, the Court granted Mr. Normandin’s motion, which was to be effective only upon filing of a proof of service of the order relieving counsel on Defendant Paine. The record fails to reflect any such proof of service—an issue the Court addresses in the Conclusion.

C. Motion Before the Court

On December 27, 2023, Plaintiff North Mariposa filed a motion to deem RFAs, Set One, admitted.

The motion and its attached Alexander declaration do not contain proof of service of the motion on Defendant Paine or on Tom Roddy Normandin, Esq.

No opposition appears in the record.

Plaintiff North Mariposa’s motion is now before the Court.

II. Motion to Deem RFAs Admitted and Request for Sanctions

A. Motion to Deem RFAs Admitted: DENIED.

1. 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).)

To establish this ground, a movant must show:

(1) Proper service (see Code Civ. Proc., § 2033.070);

(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and

(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see Appleton v. Superior Court, supra, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).

A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)

2. Analysis

Here, the Court DENIES Plaintiff North Mariposa’s motion.

As made clear by Plaintiff’s January 25, 2023, motion to compel further responses to RFAs, Set One, on December 13, 2022, Defendant Paine served objection-only responses to RFAs, Set One, which need not be verified or sworn because they are objections. (Code Civ. Proc., § 2033.240, subd. (a), (c); see 1/25/23 Mot., Alexander Decl., Ex. 9 [Dec. 13, 2022, RFAs, Set One, responses].)

As a result, a motion to compel further discovery responses as to RFAs, Set One, is the only relief available as to that discovery. Such relief was pursued on January 25, 2023, and granted on August 21, 2023. At this point, Plaintiff North Mariposa needs to move to enforce the Court order—for the moment, a moot exercise, as the Court will direct compliance with its own orders below in the Conclusion—or move for issue or evidence sanctions against Defendant Paine. However, deeming RFAs admitted is a procedural remedy foreclosed as of December 13, 2022.

Plaintiff’s motion is thus DENIED.

B. Request for Sanctions: DENIED.

1. Legal Standard

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).)

2. Analysis

Here, because the motion to deem RFAs, Set One, admitted was denied, the request for monetary sanctions is likewise DENIED.

III. Conclusion

A. Motion to Deem RFAs Admitted and Request for Sanctions

Plaintiff North Mariposa Solutions, L.P.’s Motion to Deem the Truth of Matters Specified in Requests for Admission - Set One as Admitted and Request for Order Awarding Monetary Sanctions Against Defendant and Defense Counsel in the Sum of $1,500 is DENIED.

B. Other Orders

1. Defense Counsel Tom R. Normandin, Esq.

An attorney remains the attorney of record until a substitution of counsel form is filed with the court, or the court has otherwise granted its permission for the attorney to withdraw from the representation. The attorney can still bind his or her client if the other side does not know about the change in counsel. (See, e.g., Reynolds v. Reynolds (1943) 21 Cal.2d 580, 584 [service of papers on former attorney, after final judgment of divorce, in proceeding to increase support award, held proper]; Sherman v. Panno (1954) 129 Cal.App.2d 375, 379 [notice of entry of judgment for plaintiff, mailed to defendants’ former counsel before notice of substitution received by counsel for plaintiff, held effective to start statutory time running on court’s power to grant new trial].)

The Court ORDERS Tom R. Normandin, Esq. to file proof of service of the March 24, 2023, order on Defendant Paine within 15 days of notice of this order. (Code Civ. Proc., § 128, subd. (a)(4).)

2. Defendant Derrick Paine

To the extent that he has not already done so, the Court ORDERS Defendant Derrick Paine to comply with this Court’s August 21, 2023, order within 30 calendar days of notice of this order. (Code Civ. Proc., § 128, subd. (a)(4).)