Judge: Anne Richardson, Case: 22STCV30581, Date: 2023-04-03 Tentative Ruling

Case Number: 22STCV30581    Hearing Date: April 3, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:               Plaintiffs Barry Robertson and Elizabeth Robertson.

OPPOSITION:                      [Unopposed]

Motion to Deem Requests for Admission Admitted: GRANTED.

Plaintiffs Barry Robertson and Elizabeth Robertson sue Defendants Michael McClinton, Esmeralda Rubio, and Does 1 through 30 pursuant to claims of (1) Breach of Oral Contract, (2) Breach of Express or Implied Warranty, (3) Breach of Implied Warranty, (4) Negligent Hiring, (5) Negligence, (6) Fraud, (7) Disgorgement, and (8) Declaratory Relief. The claims are premised on allegations that, pursuant to a contract between the parties, and with all checks made out to Defendant Rubio at McClinton’s direction, Defendant McClinton and his construction crew worked on building a retaining wall on Plaintiffs’ property, performed electrical, heating, ventilation, and air conditioning (HVAC) work thereon, and promised to complete other work as well, such as installing pavers, a new driveway, sprinkler systems, driveway lights, and new plants and landscaping, only for Defendants to fail to complete all the work they were paid to do or complete such work in an unworkmanlike fashion, resulting in minimum damages to Plaintiffs in the amount of $200,000 related to the retaining wall alone, as well as additional fees and costs Plaintiffs will need to pay to complete the work not performed by Defendants and to repair the damages Defendants did to Plaintiffs’ property.

On October 26, 2022, Plaintiffs propounded discovery on Defendant McClinton, including a Requests for Admissions, Set One. (Mot., 3:3-6, Larson Decl., ¶ 4, Ex. A.)

Responses were due from McClinton as of January 23, 2023. (Mot., 3:7-9, Larson Decl., ¶ 5.)

Defendant McClinton failed to comply with the discovery request, prompting Plaintiffs’ counsel to email a Notice of Waiver of Objections to McClinton’s counsel on January 24, 2023. (Mot., 3:10-13, Larson Decl., ¶ 6, Ex. B [Notice of Waiver].)

Defense counsel later explained in a January 30, 2023 email that such a mistake was due to calendaring issues and promised to provide responses without objections, receiving an extension to respond through February 6, 2023, and then through February 15, 2023, but no responses were forthcoming, despite a threat of sanctions from Plaintiffs’ counsel. (Mot., 3:14-23, Larson Decl., ¶¶ 7-9, Ex. C [emails].)

As of February 22, 2023, Defendant McClinton had failed to respond to Plaintiffs’ Requests for Admissions, Set One. (Mot., 3:23-25, Larson Decl., ¶ 10.)

Based on these alleged facts and supporting evidence, the Court GRANTS Plaintiffs’ motion because:

(1) Plaintiffs served Requests for Admissions, Set One, on Defendant McClinton on October 26, 2022 (Mot., Larson Decl., Ex. A; see Code Civ. Proc., § 2033.070);

(2) McClinton failed to provide answers thereto within the specified time agreed by the parties, i.e., by January 23, 2023 (Mot., Larson Decl., ¶¶ 5-6; see Code Civ. Proc., § 2033.250);

(3) Plaintiffs have made a motion for an order that the truth of any matters specified Requests for Admission, Set One, be admitted (see Mot. generally; see also Code Civ. Proc., § 2033.280, subd. (b));

(4) McClinton has failed to file any opposition brief; and

(5) The requests for admission are within the proper scope of discovery because they request admissions related to, among other things, Defendant McClinton’s licensure as a contractor, McClinton’s representation of skill and expertise to Plaintiffs, payment in full to McClinton, the failing quality of the retaining wall built by McClinton, the nonconformity of the retaining wall with City Building Codes, McClinton’s failure to provide landscaping work, McClinton’s installation of a concrete driveway that has developed large cracks, McClinton’s installation of HVAC not conforming to City Building Codes, and McClinton’s physical damage to other parts of Plaintiffs’ property (see Mot., Larson Decl., Ex. A, RFA Nos. 1-14; see also Code Civ. Proc., § 2017.010).

The Court also GRANTS the requested monetary sanctions of $1,566.65, comprised of attorney’s fees of 2 hours expended on this motion by John Larson, Esq. at a rate of $415 per hour, 0.8 hours expended meeting and conferring by Michelle Moy, Esq. at a rate of $325 per hour, one hour of expected work by John Larson, Esq. in attending the hearing for this motion at a rate of $415 per hour, and filing costs of $61.65.  (Mot., 5:2-3, Larson Decl., ¶ 11.)