Judge David A. Rosen, Case Number: 22GDCV00296, Date: 2023-05-19 Tentative Ruling

Judge: David A. Rosen, Case: 22GDCV00296, Date: 2023-05-19 Tentative Ruling

Case Number: 22GDCV00296 Hearing Date: May 19, 2023 Dept: E

Hearing Date: 05/19/2023 – 8:30am
Case No. 22GDCV00296
Trial Date: 08/07/2023
Case Name: AMERICAN CONTRACTORS INDEMNITY COMPANY, a California corporation v. ARTHUR SARKISSIAN, an individual; ZHORA SARGISYAN, an individual; and DOES 1 through 50, inclusive

TENTATIVE RULING - MOTION TO DEEM RFA ADMITTED

Moving Party: Plaintiff, American Contractors Indemnity Company (Plaintiff or ACIC)
Responding Party: No Opposition submitted by Defendant.

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, §1013b): Unsure . This motion was served by email. There is no Opposition. If email service is allowed here, the instant motion was served at the email address that is listed on eCourt for Defendant’s counsel.

Moving Papers: Notice of Motion/Motion; Proposed Order; Padian Declaration

RELIEF REQUESTED¿
Plaintiff, American Contractors Indemnity Company, moves the Court for an order that matters in Plaintiff’s Requests for Admission be deemed admitted for Defendant Zhora Sargisyan’s failure to respond to Plaintiff’s Requests for Admission, Set One and for monetary sanctions.

This motion is brought under California Code of Civil Procedure sections 2033.250, 2033.280 and 2025.030 on the grounds that ACIC’s Requests for Admission, Set One were properly served on Defendant, that Defendant has failed to timely respond to any of the Requests for Admission, Set One, and Defendant’s failure to respond is without substantial justification.

BACKGROUND

The Complaint in this action was filed on 06/07/2022. It listed two causes of action – (1) Breach of Contract and (2) Declaratory Relief – against Defendants Arthur Sarkissian and Zhora Sargisyan.

On 8/24/2022, Defendant’s counsel filed Defendant’s Answer.

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).)

Here, Plaintiff served Defendant, Zhora Sargisyan, with Requests for Admission, set One, via email on September 20, 2022. (Decl. Padian ¶2, Ex. 1.) According to Plaintiff, the deadline for Defendant to serve its verified written responses to the requests was October 24, 2022, but no responses were served. (Padian Decl. ¶3.) Through a series of emails and a meet and confer letter, Plaintiff extended the deadline for Defendant to respond on several occasions; however, as of March 7, 2023 [the date the instant motion was signed], Plaintiff has still not received verified written responses from Defendant. (Padian Decl. ¶4-9.) Therefore, the initial 30-day deadline was not met, and the Defendant also didn’t provide timely responses to the several extensions granted by Plaintiff.

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).)

Here, Defendant has waived any potential objections for failing to timely respond to the Requests for Admission, Set One. Further, Defendant has not indicated that before the hearing it served a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.

TENTATIVE RULING
Plaintiff’s motion for an order that matters in Plaintiff’s Requests for Admission, Set One, be deemed admitted for Defendant Zhora Sargisyan is GRANTED. The Court orders that the genuineness of any documents and the truth of any matters specified in the requests are deemed admitted.

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), [emph. added].)

Here, Plaintiff’s counsel requests sanctions in the amount of $1,236.00.

Padian stated he bills at an hourly rate of $240 per hour. (Padian Decl. ¶12.) Mr. Padian explained the math behind his request as follows: 2.4 hours spent preparing the notice of motion/motion/memo/declaration/proposed order; anticipating 1.5 hours preparing the Reply to any Opposition; 1 hour of time appearing at the hearing, and $60 for the filing fee.

Here, the 2.4 hours should be granted for preparing this motion; a ½ hour should be granted for appearing at the hearing if Padian attends the hearing, and the $60 should be granted for the filing fee. As of the morning of 5/15/2022, no Opposition has been submitted, and no Reply has been submitted, so the 1.5 hours preparing the Reply should not be granted. Reasonable discovery sanctions are thus GRANTED to moving party and against Defendant Zhora Sargisyan in the amount of $756.00, to be paid on or before June 23, 2023.