Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01874, Date: 2024-03-22 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01874, Date: 2024-03-22 Tentative Ruling

Case Number: 23GDCV01874 Hearing Date: March 22, 2024 Dept: E

Hearing Date: 03/22/2024 – 8:30am
Case No. 23GDCV01874
Trial Date: UNSET
Case Name: ALI AHMAD, an individual; v. KENTON GRAY, an individual; DAMAYANTI K. LAM aka KRYSTINE D. LAM, an individual; VERACOR FINANCIAL, LLC, a Georgia limited liability company, and DOES 1-50

TENTATIVE RULING - MOTION TO DEEM ADMITTED

RELIEF REQUESTED¿
“Plaintiff, Ali Ahmad, moves the Court for an Order: (1) Deeming admitted Plaintiff’s Request for Admissions, Set One to Defendant, Veracor Financial, LLC, a Georgia limited liability company; and (2) Imposing Monetary Sanctions in the amount of $1,761.65 against Defendant and its attorney of record, Michael Plotkin, Esq., jointly and severally for Defendant’s failure to serve a timely response to the Request for Admissions, thereby necessitating the instant motion forcing the unnecessary expenditure of attorney’s fees and costs by Plaintiff.

This motion is made pursuant to California Code of Civil Procedure §§2023.010 and 2033.280, et seq. on the grounds the requests for admissions are relevant to the subject matter of this action, Defendant has failed to serve responses to the above-referenced discovery, and Defendant’s failure to respond is without substantial justification. Pursuant to California Code of Civil Procedure § 2033.280, it is mandatory the Court impose a monetary sanction on the party and/or attorney whose failure to serve timely responses to a Request for Admissions necessitated this motion.”

PROCEDURAL

Moving Party: Plaintiff, Ali Ahmad
Responding Party: No Opposition by Veracor Financial LLC, a Georgia limited liability company

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): To be addressed at hearing – The instant motion was served via electronic mail to Veracor’s counsel at mepesq@earthlink.net on 1/10/2024. This email address is the same email address listed on eCourt for Veracor’s counsel, Michael E. Plotkin. Several days later on 1/17/2024, Plotkin filed a “Withdrawal of Electronic Service” for Veracore. [Plaintiff’s counsel spells Defendant’s name as Veracor, but Defendant’s counsel spells it as Veracore.] Since the “Withdrawal of Electronic Service” was filed after Plaintiff served this motion, it would appear that service was proper if Plotkin’s email address on eCourt was correct. However, since no Opposition was submitted, the Court would like Plaintiff to address this issue at the hearing. Further, the Court notes how the Proposed Order was not served on Defendant.

Moving Papers: Motion; Proposed Order
Opposition Papers: No Opposition
Reply Papers: Notice of Non-Opposition

ANALYSIS – REQUEST TO DEEM ADMISSIONS ADMITTED
“Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (CCP §2033.250(a).)

If a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). (CCP §2033.280(b).) 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. (CCP §2033.280(c).)

Further, if a party to whom requests for admission are directed fails to serve a timely response, the party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP §2033.280(a).) However, the court on motion, may relieve that party from this waiver on its determination that: (1) the party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (CCP §2033.280(a)(1)-(2).)

TENTATIVE RULING
On 11/28/2023, Plaintiff’s counsel served via email, Request for Admissions, Set One, on Defendant, Veracor Financial, LLC, a Georgia limited liability company. (Decl. Salisbury ¶9.) Plaintiff’s counsel states that the last day to serve verified responses to the Request for Admissions, Set One, was 1/2/2024. (Decl. Salisbury ¶10.) Plaintiff’s counsel states that no responses to the Request for Admissions, Set One, have been received as of 1/10/2024. (Decl. Salisbury ¶11.)

If Plaintiff clarifies the service issue addressed above, the Court is inclined to GRANT Plaintiff’s Motion deeming admitted Plaintiff’s Request for Admissions, Set One, to Defendant Veracor Financial LLC, a Georgia limited liability company.

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.” (CCP §2033.280(c).)

Plaintiff requests sanctions in the amount of $1,761.65 against Defendant and its attorney of record, Michael Plotkin Esq., jointly and severally for Defendant’s failure to serve a timely response to the Request for Admissions.

Plaintiff’s counsel requests sanctions as follows: (1) An hourly rate of $425.00 per hour; (2) Two hours preparing this motion; (3) Two hours for reviewing Opposition, drafting a Reply, and attending the hearing on the motion; (4) filing fee of $60 and credit card processing fee of $1.65.

The Court will discuss the issue of sanctions—which appear to be mandatory—with counsel.