Judge: Frank M. Tavelman, Case: 23BBCV03035, Date: 2024-07-12 Tentative Ruling

Case Number: 23BBCV03035    Hearing Date: July 12, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS TO DEEM RFA MATTERS ADMITTED

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Mariam Pananyan (Plaintiff) brings this action against Vernal Equinox, LTD, Morteza Bharloo, Lori Cresswell, Elvis Keshishyan (Keshishyan), Apex Home Loans, LLC (Apex), & ESA Investment Group, LLC (ESA) (collectively Defendants). Plaintiff alleges that Defendants secured a fraudulent home loan against the property located at 6239 Riverton Ave., North Hollywood, CA 91606. Plaintiff further alleges that she has resided at the Riverton address since 2004 and that she only became aware of the fraudulent loan after an “NOD and Election to Sell Under Deed of Trust” was recorded against the property. 

Plaintiff now moves to deem admitted matters in her Request for Admissions (RFA), issued to Apex, Keshishyan, and ESA (hereinafter Apex Defendants). Plaintiff argues that she has received no response to the RFA after several months have passed since they were served. Apex Defendants oppose the motion, arguing that the RFA for Apex Defendants were served on Keshishyan who did not have counsel at the time and did not understand the RFA. Apex Defendants also state that they have since served responses to the RFA in substantial compliance such that this motion is moot. Plaintiff replies, arguing that the responses of Apex Defendants are not in substantial compliance because they consist entirely of objections.  

ANALYSIS: 

I.                    LEGAL STANDARD 

If a party fails to respond to requests for admission in a timely manner, the requesting party may move for an order that the matters be deemed admitted. (C.C.P. § 2033.280(b).) The requesting party’s motion must be granted by the court unless the party to whom the requests for admission have been directed has served a proposed response to the requests for admission that is in substantial compliance with C.C.P. § 2033.220 prior to the hearing.  (C.C.P. § 2033.280(c).)  By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product.  (C.C.P. § 2033.280(a).) 

II.                 MERITS

Request to Deem RFA Matters Admitted  

On February 14, 2024, Plaintiff caused her RFA to be served on Apex Defendants. (Nigoghosian Decl. ¶ 2.) The proof of service for the RFA for Apex, Keshishyan, and ESA all reflect that the requests were served on Keshishyan. (Nigoghosian Decl. Exh. A.) Keshishyan is listed as Defendant in pro per and is also listed as the agent for service of process for both Apex and ESA. (Id.) It appears that the RFA were served on Keshishyan via personal service and via mail. (Id.) Apex Defendants’ responses were due on March 15, 2024. (Nigoghosian Decl. ¶ 2.) Plaintiff’s motions state that Plaintiff received no response to the RFA. (Nigoghosian Decl.¶ 3.)

Apex Defendants argue in opposition that the RFA were improperly served. (Opp. p. 3 at 10.) Apex Defendants do not expand on this argument or cite to any authority in support of it. It appears to the Court that service of the RFA was proper. Keshishyan does not dispute that he was representing himself at the time the requests were personally served on him. As Keshishyan was agent for service of process for both ESA and Apex, service on those entities appears proper as well.

Apex Defendants also argue that Keshishyan did not understand the nature of the RFA and should thus be excused from his nonresponse. The Court notes that the statute governing this motion, C.C.P. § 2033.280, provides no such form of relief. The statute is clear that a motion to deem RFA matters admitted based on nonresponse must be granted unless the responding party serves responses that are substantially code compliant before the hearing of the motion. Apex Defendants arguments speak to a motion for relief from waiver which is not before the Court.

As concerns Apex Defendants’ late responses, the Court finds them to not be substantially compliant. Apex Defendants state they retained counsel in this matter on May 24, 2024. (Samson Decl. ¶ 3.) On May 28, 2024, Apex Defendants served their verified responses to the RFA. (Samson Decl. ¶ 6, Exh. A.) Plaintiff argues that these responses are not in substantial compliance as every response is either (1) an insufficient statement that Apex Defendants lack the knowledge to respond, or (2) an improper objection based on Keshishyan’s Fifth Amendment rights under the U.S. Constitution.  

C.C.P. § 2033.220 (c) requires that a party who claims lack of information must also state that a reasonable inquiry concerning the matter in the particular request has been made and that the information known or readily available is insufficient to enable the party to admit the matter. None of Apex Defendants’ responses claiming a lack of knowledge contain any statement about a reasonable inquiry. Despite this error, the Court finds that these responses are substantially code compliant. Substantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the statute, and where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779.) While Apex Defendants should have included the statement that a reasonable inquiry was made, their current responses are compliant with the substance of C.C.P. § 2033.220(b)(3).

As concerns the Fifth Amendment objections, these are not substantially code compliant. Initially we must address any claim of a Fifth Amendment privilege Apex or ESA. The legal entities do not have a privilege against self-incrimination.  (Bellis v United States (1974) 417 US 85,90 [The Supreme Court has consistently held that the privilege against compulsory self-incrimination is limited to protective only the natural individual; Clancy v. Superior Court (1985) 39 Cal. 3d 740; Avant! Corporation v. Superior Court (2000) 79 Cal.App.4th 876, 883 ["[U]nlike private individuals, corporations have no privilege against self-incrimination"]).  As such, and objections on these grounds as to Apex and ESA are not legally sound.

In arguing that the responses are not substantially compliant, Plaintiff correctly points out that C.C.P. § 2033.280(a) provides that a party who has failed to timely respond to RFA is deemed to have waived all objections. The only relief from this waiver is found in C.C.P. § 2033.280(a)(1) which provides that the Court may grant relief upon noticed motion demonstrating substantial compliance and that the failure to respond was the result of mistake, inadvertence, or excusable neglect. Apex Defendants have not sought relief from their waiver by virtue of noticed motion pursuant to C.C.P. § 2033.280(a). As the Court has not granted Apex Defendants relief from their waiver, the service of responses consisting largely of objections is not substantially code compliant.

On balance the Court finds that Apex Defendants’ responses to the RFA were not substantially code compliant. Even though some of the responses claiming lack of knowledge are compliant, the vast majority of the responses consist of procedurally improper objections. (See St. Mary supra, 223 Cal.App.4^th at 780 [“We find no authority for this piecemeal approach to adjudicating a tardy, proposed RFA response filed by a responding party prior to the hearing on a deemed admitted motion… [T]he court [must] evaluate qualitatively the proposed response to RFAs in toto to determine whether it substantially complies with the code.”].)

Accordingly, with the exception of questions to which responding party invoked a Fifth Amendment privilege for Keshishian as an individual, answers to which Plaintiff’s motions to deem RFA matters admitted are GRANTED.

Sanctions

The Court shall impose monetary sanctions for failure to timely respond to requests for admission unless the party acted with substantial justification, or the circumstances render imposition of sanctions unjust. (C.C.P. § 2033.280(c).) The Court must impose a monetary sanction on the party or attorney whose failure to serve timely Requests for Admission responses necessitated the motion. (Id.)

Here, Plaintiff requests total sanctions in the amount of $3,734.52. This amount is based on a total of six hours of attorney work at a stated rate of $600 per hour, plus the associated filing fees. (Nigoghosian Decl. ¶ 4.) The Court agrees with the defense that the primary basis for filing to timely comply was defendant’s pro per status.  He also has a concurrent police investigation which may implicate him and as such despite waiting two months to hire counsel for this case, the Court finds that sanctions would be unwarranted.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Mariam Pananyan’s Motion to Deem Request for Admissions Matters Admitted came on regularly for hearing on July 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO DEEM RFA MATTERS ADMITTED IS GRANTED, WITH THE EXCEPTION TO RESPONSES IN WHICH RESPONDING PARTY INVOKED FIFTH AMENDMENT PRIVILEGE FOR KESHISHIAN.

SANCTIONS ARE DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  June 12, 2024                            _______________________________ 

                                                                        F.M. Tavelman, Judge 

Superior Court of California 

County of Los Angeles