Judge: Audra Mori, Case: 19STCV10771, Date: 2023-04-26 Tentative Ruling

Case Number: 19STCV10771    Hearing Date: April 26, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Alexander Olshansky (“Plaintiff”) propounded request for admissions (“RFAs”), set one, on Mikhail Cheban (“Defendant”) on August 19, 2022.  Plaintiff provides that Defendant served unverified responses on October 4, 2022, and indicated verifications were to follow.[1]  Plaintiff asserts that as of the filing of the motion, Defendant has not served verifications.  Plaintiff therefore seeks an order compelling Defendant to serve verified responses to the RFAs and to pay sanctions.

In opposition, Defendant asserts that he was been unable to verify the responses for several months because Defendant was residing outside of the U.S. in Ukraine since 2018, which is currently at war.  Defendant further asserts that communication with his counsel client has been limited and unreliable due to electricity and telecommunication interference in Ukraine.  Defendant, however, asserts that he verified his responses to the RFAs on January 26, 2023, and that after Plaintiff’s counsel was dissatisfied with this verification, Plaintiff signed and served a second verification on March 2, 2023.  (Opp. Exhs. A-B.)  Defendant contends that sanctions are not warranted against him. 

In reply, Plaintiff contends that the truthfulness of Defendant’s claims is questionable because Defendant has submitted declarations in other actions stating that he has left Ukraine.  For example, Plaintiff asserts that recently, “on December 16, 2022, in U.S. Bank National Association v. SSRE Holdings LLC, et al. (Case No. 22PSCV01642 out of Los Angeles County), Defendant Cheban filed another signed declaration in support of a Motion to Quash Service of Summons” that does not identify where Defendant resides.  (Reply at 3:13-16.)  Plaintiff contends that the Court should require a Certificate of Completion or Envelope Details before accepting Defendant’s representation that he signed the verifications.  Plaintiff contends that there is no substantial justification for Defendant’s failure to participate in discovery, so sanctions are appropriate.[2]   

As to Plaintiff’s contention that Defendant should be required to produce a Certificate of Completion or Envelope Details before accepting Defendant’s representation that he signed the verifications, Plaintiff cites no authority showing that the Court is authorized to issue such an order.  Accordingly, because Defendant has signed and served verifications for the RFAs prior to the hearing, to the extent that Plaintiff is seeking to compel a verification the motion is moot.  (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.)

Furthermore, in moving to compel Defendant to serve verified responses to the RFAs, Plaintiff cites to CCP § 2033.290(a).  This provision concerns a motion to compel further responses to a request for admissions, which is not at issue here.  Rather, CCP § 2033.280 concerns untimely responses to RFAs.  CCP § 2033.280, however, does not authorize a motion to compel responses to RFAs.  The correct procedure is a motion to deem matters admitted.  (CCP § 2033.280(b).)  Nowhere in the notice of motion or memorandum of points and authorities do Defendants request the RFAs be deemed admitted.

Based on the foregoing, the motion is denied.  Given that the motion is being denied, Plaintiff’s request for sanctions is also denied.  Defendant does not request any sanctions, and none are awarded.

Plaintiff is ordered to give notice.   

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 26^th day of April 2023