Judge: Elaine Lu, Case: 21STCV43201, Date: 2023-05-17 Tentative Ruling

Case Number: 21STCV43201    Hearing Date: May 17, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On November 22, 2021, Plaintiff Jill Greenberg 2019 Trust (“Plaintiff”) filed the instant unlawful detainer action against David Bogner (“Bogner”) and Ernest Financial, LLC (jointly “Defendants”).[1]  The Complaint seeks possession of the premises, past due rent, attorney fees, and 10% of gross receipts from Defendants’ sublease of the property.  Defendant Bogner filed his answer on May 20, 2022.

            On April 4, 2023, Plaintiff filed the instant motion to deem Requests for Admissions, Set Two, served on Defendant Bogner Admitted. On April 5, 2023, the Court granted Plaintiff’s Ex Parte application to advance the hearing on Plaintiff’s Motion to Deem Requests for Admissions, Set Two, served on Defendant Bogner Admitted to May 1, 2023.  (Minute Order 4/5/23.)

Defendant Bogner did not file a written opposition to Plaintiff’s Motion to Deem Requests for Admissions, Set Two, Admitted.  However, at the May 1, 2023 hearing, Defendant Bogner’s Counsel asserted that Defendant Bogner did not respond to Plaintiff’s Requests for Admissions, Set Two because most, if not all, of Plaintiff’s Requests for Admissions, Set Two, were identical to Plaintiff's Requests for Admissions, Set One, and the Court already denied Plaintiff’s previous motion to compel further responses to Plaintiff's Requests for Admissions, Set One on November 21, 2022.  (Order 11/21/22.)  In addition, Plaintiff conceded at the hearing that some of the Requests for Admissions in Set One may have been substantially similar to some of the Plaintiff's Requests for Admissions, Set Two. 

            Accordingly, the Court continued the instant motion to May 17, 2023 and ordered the parties to file a joint statement of the claimed identical Requests for Admissions and a short brief addressing the propriety of serving an identical or similar set of Requests for Admissions after the Court has already denied a motion to compel further response to that set of Requests for Admissions.  (Minute Order 5/1/23; Order 5/16/23.)

            On May 8, 2023, Defendant Bogner filed a separate statement and short brief as requested.  Plaintiff did not file any separate statement or brief.

Allegations of the Operative Complaint

The Complaint alleges that:

On August 8, 2019, Plaintiff and Defendant Ernest Financial, LLC entered into a written commercial lease agreement to rent 9400 Flicker Way, Los Angeles, CA 90069 (“Subject Property”) a single family home.  (UD-100 ¶¶ 6-7, Exh. 1 [Lease Agreement]; UD-101 ¶ 2.)  Defendant Bogner personally guaranteed the lease agreement on behalf of Ernest Financial, LLC.  (UD-100 ¶ 6, Exh. 1 [Lease Agreement].)  The lease was from September 1, 2019 to September 1, 2021 with monthly rent of $24,000.00.  (UD-100 ¶ 6, Exh. 1 at ¶ 2.)  Pursuant to an addendum to the lease agreement, the lease permitted short term sublease for under 30 days with Plaintiff to receive 10% of profits from subletting.  (UD-100, Exh. 1 at Addendum No. 3 to LR.)  The lease agreement further provided that after the tenancy expired, rent would increase 200% for each month Defendants held over the tenancy.  (UD-100, Exh. 1 at Addendum ¶ 6 [Holding Over].)  Defendants have never personally occupied the Subject Property and have only sublet the property.  (UD-101 ¶ 13.)

            On November 9, 2021, Plaintiff served a three-day notice to quit electronically and by mail on Defendants indicating that Defendants had not paid rent for September 2021, October 2021, and November 2021 and that $116,000 in unpaid rent was due.  (UD-100 ¶ 9, Exh. 2 [Notice to Quit], Exh. 3 [Proof of Service of Notice to Quit].)

Discussion

            As Defendant Bogner’s separate statement and Defendant Bogner’s declaration note, the Requests for Admissions, Set One and the Requests for Admission, Set Two that Plaintiff served are identical.  (Bogner 5/8/23 Decl. ¶¶ 2-3, Exhs. 1-2.)   Defendant Bogner already responded to these Requests for Admission and provided supplemental responses to these identical requests.  (See e.g., Paya 10/18/22 Decl. ¶ 5, Exh. C; Daggenhurst 11/1/22 Decl. ¶ 4, Exh. 3.)  As such there is no basis for the Court to deem Requests for Admission, Set Two admitted.

            Pursuant to Code of Civil Procedure section 2033.280, “[i]f a party to whom requests for admission are directed fails to serve a timely response, … [t]he 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…”  (CCP § 2033.280(b).)  Further, “[t]he 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).)  The statute does not provide that service of a relabeled, identical set of Requests for Admissions necessitates a new response.  Moreover, a plain reading of the statute requires a denial of the instant motion.

            Code of Civil Procedure section 2033.250(a) allowed Defendant Bogner 30 days from service of the Requests for Admission to provide a response.  Defendant Bogner timely responded to the original Requests for Admission.  (See e.g., Paya 10/18/22 Decl. ¶ 5, Exh. C; Daggenhurst 11/1/22 Decl. ¶ 4, Exh. 3.)  As the Requests for Admission, Set Two are identical to the Requests for Admission, Set One, Defendant Bogner has clearly responded – by virtue of his original response to the Requests for Admission, Set One – well before 30 days following service of the Requests for Admission, Set Two.  There is no proper basis for Plaintiff to move to deem Requests for Admission, Set Two admitted because Defendant Bogner timely responded – even before Plaintiff re-served the repackaged Requests for Admission, Set Two.

            If Plaintiff was not satisfied with Defendant Bogner’s original (timely) responses, Plaintiff was required to file a timely motion to compel a further response under Code of Civil Procedure section 2033.290.  At this juncture, Plaintiff has clearly waived any such motion would because time period for filing such a motion -- 45 days from when Defendant Bogner served his supplemental responses to the Request for Admission –is jurisdictional and has lapsed.  (CCP § 2033.290(c); Daggenhurst 11/1/22 Decl. ¶ 4, Exh. 3.) 

            Accordingly, the instant motion must be denied.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Jill Greenberg as Trustee of Jill Greenberg 2019 Trust’s motion for an order deeming the Requests for Admissions, Set Two, is DENIED.

Moving Party is to give notice and file proof of service of such.

DATED: May 17, 2023                                                          ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court