Judge Elaine Lu, Case 20STCV09801 2023-01-26 Tentative Ruling

On March 11, 2020, plaintiff Francisca Velasquez (“Plaintiff”) filed the instant action against defendants Koko Polosajian (“Polosajian”), Cesar Galvan (“Galvan”), Standard Home Lending, Inc. (“Standard Home Lending”) (collectively “Defendants”), Mark S, Nadel, and Nadel & Associates Profit Sharing Plan & CA TD Investments. On February 22, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants, Mark S, Nadel, and Nadel & Associates Profit Sharing Plan & CA TD Investments.[1] The SAC asserts four causes of action for (1) Financial Elder Abuse, (2) Intentional Infliction of Emotional Distress, (3) Fraud, and (4) Breach of Fiduciary Duty.

On December 12, 2022, Defendant Galvan filed the instant motion to deem admitted Requests for Admissions, Set One (“RFAs”) served on Plaintiff. No opposition or reply has been filed.

Under Code of Civil Procedure section 2033.250 subdivision (a), a party must respond to requests for admission within 30 days of service. However, these time limits are extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Failure to timely respond waives all objections including privilege or on the protection of work product. (See CCP § 2033.280(a).)

On October 18, 2022, Defendant Galvan propounded the at issue RFAs on Plaintiff by electronic service. (Lisitsa Decl. ¶ 7, Exh. A.) Accordingly, Plaintiff had until November 21, 2022 to timely respond to the RFAs.[2] However, Plaintiff failed to timely respond. (Lisitsa Decl. ¶ 9.) On November 30, 2022, Defense Counsel emailed Plaintiff’s Counsel about the lack of responses to the RFAs. (Lisitsa Decl. ¶ 10, Exh. C.) Plaintiff’s Counsel responded the same day stating that he would look into the lack of responses to the RFAs. (Lisitsa Decl.¶ 11, Exh. D.) As of filing the instant motion, Plaintiff has not responded to the RFAs. (Lisitsa Decl. ¶ 12.)

Accordingly, as the responses are untimely, Plaintiff has waived all objections.

Defendant Galvan moves under Code of Civil Procedure section 2033.280 to deem the request for admissions admitted. Where there has been no timely response to a request for admissions under Code of Civil Procedure section 2033.010, 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, as well as for a monetary sanction. (CCP § 2033.280(b).) The party who has failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing (1) that the party 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. (CCP § 2033.280(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.” (CCP § 2033.280(c).)

As Plaintiff has not responded to the request for admissions, Defendant Galvan’s motion for an order deeming the Request for Admissions, Set One is granted pursuant to Code of Civil Procedure section 2033.280. Plaintiff Francisca Velasquez is deemed to have admitted the truth of all matters specified in the Requests of Admission, Set One as of this date.

“It 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. (CCP § 2033.280(c).) Moreover, the Court finds that Plaintiff’s failure to timely respond to the discovery request is an abuse of discovery. (CCP § 2023.030(a); Cal. Rules of Court, Rule 3.1348(a).)

However, the Court finds that the total amount requested – $3,561.65 – is unreasonable in view of the totality of the circumstances, especially in light of the simplicity of the instant motion and the lack of any opposition. The Court finds that $1,511.65 reasonably compensates Defendant Galvan for the reasonable attorney’s fees and costs incurred in bringing this motion.

Based on the foregoing, Defendant Cesar Galvan’s motion for an order deeming the Request for Admissions, Set One admitted is GRANTED. Plaintiff Francisca Velasquez is deemed to have admitted the truth of all matters specified in the Requests of Admission, Set One as of this date.

Plaintiff Francisca Velasquez and her counsel of record Ralph M. Rios, Esq. are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,511.65 to Defendant Cesar Galvan by and through counsel, within thirty (30) days of notice of this order.

[1] On April 6, 2022, Plaintiff dismissed Mark S, Nadel and Nadel & Associates Profit Sharing Plan & CA TD Investments from the action without prejudice.

[2] November 19, 2022 which is exactly 32 days from service of the RFAs – as it was served electronically – was a Saturday– and thus a court holiday, thereby extending the deadline to file the instant motion to November 21, 2022. (CCP §§ 12-12(c).)

County of Los Angeles

Department 26