Judge: Curtis A. Kin, Case: 21STCV24789, Date: 2022-08-25 Tentative Ruling

Case Number: 21STCV24789    Hearing Date: August 25, 2022    Dept: 72

MOTIONS TO DEEM MATTERS ADMITTED (2)

Date:               8/25/22 (8:30 AM)

Case:               Physician Assistant, Inc et al. v. United Lab Serv, Inc. et al. (21STCV24789)

TENTATIVE RULING:

Plaintiff Physician Assistant, RTAL Inc and John Nicholas Bartolozzi’s Motion to Have the Court Deem Admitted the Truth of the Matters Specified in Requests for Admission, Set One as to Defendant United Lab Services Inc. is GRANTED.

Plaintiff Physician Assistant, RTAL Inc and John Nicholas Bartolozzi’s Motion to Have the Court Deem Admitted the Truth of the Matters Specified in Requests for Admission, Set One as to Defendant Anabelle Myers is GRANTED.

On February 16, 2022, plaintiffs Physician Assistant, RTAL Inc and John Nicholas Bartolozzi served separate Requests for Admission, Set One on defendants United Lab Services Inc. and Anabelle Myers by email. (Cohen Decls. ¶ 8 & Exs. 1, 2.) The deadline to serve responses to the discovery was March 22, 2022. (CCP § 2030.250(a) [responses to be served 30 days after service); 1010.6(a)(4)(B) [two court days added for email].)

The discovery was served on defendants at cwharts9@yahoo.com, not the cwharts9@aol.com address reflected in the Court file for defense counsel. (Cohen Decls. ¶ 8 & Exs. 1, 2.) Nevertheless, defendants served a consolidated response denying all requests set forth in both sets of Requests for Admission on June 30, 2022. (Cohen Decls. ¶ 9 & Ex. 3.) It appears that despite service at an incorrect email address, defendants received the requests. Accordingly, based on a June 30, 2022 service date, defendants’ response is untimely.

Under CCP § 2033.280(b), based on the untimely response, plaintiffs are entitled to move for orders that the truth of matters set forth in the Requests for Admission are deemed admitted. The Court is required to grant the motions “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 [CCP] Section 2033.220.” While defendants served a response, it was verified by defense counsel. The party to whom requests for admission are directed is required to sign the responses under oath unless the responses contain only objections. (CCP § 2033.240(a); see also CCP § 2033.210(a).) Attorneys are not able to verify requests for admission on behalf of parties. (Steele v. Totah (1986) 180 Cal.App.3d 545, 550.)

Because the attorney verification is invalid, the denial of all Requests for Admission at issue is unsworn. “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Accordingly, defendants failed to serve any response which could justify denial of the motions under CCP § 2033.280(c).

The motions are GRANTED. The Court deems as admitted against defendants United Lab Services Inc. and Anabelle Myers the matters set forth in the respective Requests for Admissions, Set One served on February 16, 2022. 

For failing to comply with discovery obligations and thereby forcing plaintiffs to file these motions, the Court imposes a total of $635 in sanctions against defendant United Lab Services Inc. and counsel of record, jointly and severally, and $635 in sanctions against defendant Anabelle Myers and counsel of record, jointly and severally. The monetary sanctions are based on one hour for preparing each motion at an hourly rate of $575 (instead of the total 2 hours counsel claims for each motion), plus a $60 filing fee for each motion. Monetary sanctions shall be paid to counsel for plaintiffs within thirty (30) days hereof.