Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This is a personal injury case.  Plaintiff Sylvia McNitt was shopping at Defendant Ralphs Grocery Company when she slipped and fell in the produce section.  She claims Defendant was negligent in maintaining and/or operating its business, thus causing her to trip and fall.  She alleges she suffered bodily injury as a result of the incident.            

This hearing is on Plaintiff’s motion to deem admitted her requests for admissions (set one) (“RFAs”).  Plaintiff argues that she served RFAs to which Defendant did not timely respond.  According to Plaintiff, Defendant responded three weeks late, and its responses contained objections which Defendant had waived.  Plaintiff also seeks sanctions in the amount of $2,060, representing four hours of attorney work at an hourly rate of $500 plus $60 in filing fees.   

      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 

The Court first addresses Defendant’s argument that Plaintiff filed and served her motion with insufficient notice.  Code Civ. Proc. § 1005(b) requires a party filing a discovery motion to file and serve all papers in support of the motion by hand at least 16 court days prior to the hearing.  The hearing on the motion was originally set for July 8, 2024, and 16 court days before the hearing is June 12.  The same subsection adds two court days for electronic service, which is how Plaintiff served her papers, so her last day to serve the motion was June 10.  Plaintiff did not file and serve her motion until June 13.  Notwithstanding, the hearing was eventually continued to August 22, 2024, and any prejudice to Defendant from Plaintiff’s non-compliance is likely minimal given the continuance.    

The Court now proceeds to the merits of the motion.  Plaintiff served the RFAs on Defendant on April 1, 2024 by e-mail.  (Zeesman Decl. ¶6; Ex. A to Zeesman Decl.)  The RFAs consist of 35 requests pertaining to facts relevant to the case, including requests seeking admissions that Defendant owned and controlled the premises where the accident occurred, that Defendant was negligent, that Plaintiff tripped and fell, that Defendant’s negligence caused the accident, and that Plaintiff suffered injuries as a result of the accident.  (Ex. A to Zeesman Decl.)   

Defendant’s responses were due by May 3, 2024, which was 30 days after service plus an additional two court days for electronic service.  (Id.)  Plaintiff granted two extensions, which extended the due date to May 21.  (Lara Decl. ¶¶ 2-3, Exs. A, B.)  Defendant responded on May 21, 2024.  (Ex. B to Zeesman Decl.)  Thus, Defendant’s response, at least for purpose of preserving objections, is timely.  (Code Civ. Proc., § 2033.280, subd. (a).)   

While Defendant’s responses were unverified which is tantamount to no responses at all, Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-36, objections need not be verified, and objections in an unverified response are preserved.  (Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339, 341 (“After reconsideration, we conclude that by filing a timely but¿unverified¿response to a request for production of documents, Blue Ridge did not waive its asserted privilege¿objections¿as the objections do not require a verification in order to be¿preserved.”).)   

As to the unverified response, Defendant has now provided a verification.  (Ex. F to Lara Decl.)  Pursuant to Code Civ. Proc. § 2033.280, the Court shall order matters admitted for failure to serve a timely response “unless it finds that the party to whom the requests for admission have been directed as served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with section 2033.220.”  Defendant has served a verified response which complies with § 2033.280.  Accordingly, the Court denies Plaintiff’s motion to deem the RFAs admitted. 

Plaintiff also seeks attorneys’ fees in the amount of $2,060.¿ 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.”¿ The Court concludes sanctions are mandatory given Defendant failed to timely provide verified responses, necessitating this motion.  The Court is required to impose sanctions even where Defendant has served code-compliant responses prior to the hearing because the belated response still resulted in a motion. (Code Civ. Proc., § 2033.280(c) (“[i]t¿is¿mandatory¿that the court impose a monetary¿sanction”¿even¿if the party eventually serves¿compliant¿responses¿and regardless of substantial justification).)¿  

In determining the appropriate amount of sanctions, the Court starts with the lodestar which is the reasonable hourly rate multiplied by the reasonable hours spent.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096; see also¿Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)   

Plaintiff’s counsel charges an hourly rate of $500.  Counsel does not specify how long he has been in practice, and accordingly, the Court cannot assess whether his hourly rate is in line with rates for attorneys of similar experience in the prevailing legal market.  The Court, therefore, reduces the hourly rate to $250.   

Plaintiff’s counsel attests he has spent and expects to spend a total of four hours, consisting of 1.5 hours to research, prepare and draft the motion and 2.5 hours to meet and confer and prepare for and attend the hearing on this matter.  The Court concludes that four hours is reasonable.  (Jrm Constr. Mgmt. W. LLC v. Retail Display Mfg., 2019 Cal. Super. LEXIS 20687 at *2-*3 (four hours reasonable for a simple discovery motion); Dabney v. Alen's Auto Care & Sales, 2022 Cal. Super. LEXIS 47890 at *4 (five hours reasonable for a simple motion to compel).)     

Accordingly, the Court will award monetary sanctions against Defendant in the total amount of $1,060.   

Defendant also seeks sanctions for what he describes as unprofessional conduct by Plaintiff’s counsel, including that counsel (1) taped a zoom call without authorization, (2) allowed another attorney to listen in on the call without notifying counsel until the very end of the call that she was present and listening in, and (3) deliberately filed the motion knowing Defendant’s counsel would be on a family vacation, and the due date of Defendant’s opposition would fall on counsel’s first day back from vacation.  While the Court does not condone this unprofessional behavior, Defendant provides no statutory basis or caselaw that would allow the Court to issue sanctions under these circumstances.  Accordingly, the Court denies Defendant’s request for sanctions.    

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendant’s motion to deem admitted requests for admissions and for sanctions against Plaintiff in the amount of $1,060.   

 

IT IS SO ORDERED. 

 

DATED: August 22, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court