Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

_______________________________________ 

 

MOVING PARTY: Plaintiff Eco Energy Solutions Inc. dba High Volt Electric 

 

RESPONDING PARTY: Defendants Fast Track Construction Corporation and Great American Insurance Company 

 

BACKGROUND 

 

This case arises from a dispute between a general contractor, its surety and a subcontractor over payment for work performed by the subcontractor.  Plaintiff  High Volt Electric (“HVE”) entered into a written subcontract with Defendant Fast Track Construction Corporation (“FTC”) to furnish labor and materials as part of improvements to the Channel Islands High School (the “Project”).  A dispute arose between FTC and the owner of the Project, Oxnard Union High School District, which resulted in the termination of the Project.  At the time of termination, HVE claims it was owed $325,967.60.  HVE now seeks these costs against FTC and its surety, defendant Great American Insurance Company (“GAIC”).   

This hearing is on Plaintiff’s motions to deem the truth of matters admitted in its Requests for Admissions – Set One (“RFAs”) to FTC and GAIC and for monetary sanctions in the amount of $3,353.30.  Plaintiff claims that FTC and GAIC both failed to provide any responses to its RFAs.    

LEGAL STANDARD 

 

Where a party fails to timely respond to a request for admission, the propounding 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.  (Code Civ. Proc., § 2033.280, subd. (b).)  The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect.  (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) 

The court shall grant a motion to deem admitted requests for admissions, “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.”  (Code Civ. Proc., § 2033.280, subd. (c).) 

Where a party fails to provide a timely response to requests for admission, “[i]t 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.”  (Code Civ. Proc., § 2033.280, subd. (c).)  While delayed responses may avoid a motion to deem admitted, they will not avoid monetary sanctions.  (Code Civ. Proc. § 2033.280 subd. (c); Gonzales v. Harris, 2021 Cal. Super. LEXIS 29267 at *6 (even if delayed responses are served, sanctions are mandatory because the motion had to be brought, regardless of whether it is ultimately denied because responses are served before the hearing).) 

ANALYSIS 

 

Plaintiff served its RFAs on January 18, 2023 via email.  (Woo Decl. ¶ 3, Ex. A to Woo Decl.)  Responses were due on February 21, 2023.  (Woo Decl. ¶ 3.)  After the filing of Plaintiff’s motion, FTC and GAIC served substantially compliant responses to the RFAs.  (Exs. 4-5 to Berens Decl.)  Accordingly, the Court denies as moot the motions to deem admitted matters in the RFAs.  

Plaintiff also seeks attorneys’ fees and costs in the amount of $3,353.30.¿ Pursuant to Code Civ. Proc. §2033.280(c), “[i]t is mandatory that the court impose a monetary sanction … on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”¿ FTC and GAIC argue sanctions should not be imposed since the RFAs were not properly served because one defense counsel was not copied on the email service; the proof of service claims mail service was effected even though it was not, and the proof of service is unsigned.  Proofs of service must be signed under penalty of perjury.  As the¿proof of service for the RFAs was¿unsigned, there is no evidence the RFAs were properly served.  (Adams v. Danli Lai, 2022 Cal. Super. LEXIS 78057 at *3-*4 (“Without a valid proof of service that the discovery requests at issue were served or how they were served, the Court cannot grant a motion to compel, or a motion to deem facts admitted, or a motion to deem genuineness of documents.”).)  Given this defect, the Court declines to award sanctions.   

 

CONCLUSION 

Based on the foregoing, the Court denies Plaintiff’s motion to deem admitted requests for admissions and request for sanctions.     

DATED:  April 28, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court