Judge: Gary I. Micon, Case: 21STCV09053, Date: 2025-04-08 Tentative Ruling

Case Number: 21STCV09053    Hearing Date: April 8, 2025    Dept: F43

Dept. F43

Date: 04-8-25

Case # 21STCV09053, Sentry Casualty Co. v. Alto-Shaam, Inc., et al.

Trial Date: 07-07-25

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED

MOVING PARTY: Defendant Alto-Shaam, Inc.

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Order deeming the truth of the matters in Defendant’s first set of requests for admissions admitted and imposing $2,480.00 in sanctions against Plaintiff.

RULING: Motion is granted and $1,160.00 in monetary sanctions is awarded.

SUMMARY OF ACTION

Plaintiff Sentry Casualty Company filed this products liability case against defendant Alto-Shaam, Inc. (Defendant) on behalf of its insured for injuries plaintiff Dimitra Semponis sustained during the course of Dimitra’s employment with Plaintiff’s insured.  On March 11, 2021, Dimitra Semponis (Plaintiff) filed a separate case (21STCV09570 - Semponis v. Aire-Rite Air Conditioning, et al.).  Plaintiff filed her first amended complaint on February 15, 2023, alleging negligence and strict product liability alleging that she sustained injuries as a result of defendant Aire-Rite Air Conditioning’s negligent repair of an Alto-Shaam Model 1200-SK/III oven. 

On May 26, 2023, the court consolidated these cases.

On September 28, 2023, Defendant electronically served its first set of requests for admissions (RFAs) on Plaintiff.  (Declaration of Nicholas T. Zwarg, ¶ 4, Exh. A, p. 5.)  Responses were due October 30, 2023, but Plaintiff did not serve responses.  On November 4, 2024, defense counsel emailed Plaintiff’s counsel a meet and confer letter.  (Zwarg Dec., ¶ 5, Exh. B.)  Plaintiff’s counsel responded on November 13, 2024 claiming they never received the discovery request even though the proof of service shows the correct e-mail address.  (Zwarg Dec., ¶ 6, Exh. C.)  The parties met and conferred telephonically and agreed to two deadline extensions, the final extension being January 9, 2025.  (Zwarg Dec., ¶¶ 7-8, Exh. E, p. 1.)  Plaintiff has yet to provide responses.

Defendant filed this motion to deem the matters in its RFAs as true and admitted and for $2,480.00 in monetary sanctions.  Defendant contends that the court should grant this motion and impose sanctions because Plaintiff’s responses are overdue by a year.  No opposition has been filed.

On March 24, 2025,  Plaintiff’s counsel filed a declaration stating he served untimely RFA responses on February 7, 2025.  (Declaration of Marvin S. Shebby, ¶ 10.)  Counsel states the responses were late because counsel was busy with extensive work in a separate case.  (Shebby Dec., ¶ 5-6, 10-11.)

ANALYSIS

When a responding party fails to serve a timely response to requests for admission, the demanding party may move for an order that “the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction.”  (Code Civ. Proc., § 2033.280, subd. (b).)  Responses to requests for admissions are due 30 days from the date the requests were served on the responding party.  (Code Civ. Proc., § 2033.250, subd. (a).)  Failure to respond within 30 days or a deadline set by the parties waives any objection, including those based on privilege or work product protection.  (Code Civ. Proc § 2033.280, subd. (a).)

Defendant served its RFAs on Plaintiff via e-mail on September 28, 2023.  The proof of service indicates that Defendant served “shebbylaw@att.net,” the email listed on Plaintiff’s first amended complaint.  Plaintiff’s counsel also responded to defense counsel from this e-mail address on several occasions between November 2023 and January 2025.  In light of these subsequent emails between counsel discussing deadline extensions and mediation, Plaintiff had sufficient notice of Defendant’s discovery requests.  

Plaintiff did not serve responses by the original deadline or any of the subsequent extensions but allegedly served responses on February 7, 2025.  (Shebby Dec., ¶ 10.)  The court must grant Defendant’s motion “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 . . . in substantial compliance with Section 2033.220.”  (Code Civ. Proc., § 2033.280, subd. (c).)  The court cannot confirm whether Plaintiff’s alleged responses are substantially compliant because Plaintiff has not filed proofs of service or copies of their RFA responses.

Accordingly, the court grants Defendant’s motion to deem admitted the truth of the matters in its first set of requests for admissions.

            Sanctions

Defendant requests $2,480.00 in sanctions under Civil Procedure Code section 2033.280.

The court must impose sanctions against the party or attorney, or both, whose failure to serve timely responses led to this motion, unless the court finds that the responding party served a proposed response to the requests for admissions before the motion hearing.  (Code Civ. Proc., § 2033.280, subd. (c).)

Defendant’s counsel, Nicholas T. Zwarg, charges an hourly rate of $275.00.  (Zwarg Dec., ¶ 10.)  The request includes the following: (1) 1.0 hour researching motion requirements (0.5 hours) and reviewing the case file (0.5 hours)—$275.00; (2) 4.5 hours drafting the entire motion—$1,237.50; (3) 2.8 hours anticipated to review and reply to opposing papers—$770.00; (4) 0.5 hours anticipated to prepare for and to attend the motion hearing—$137.50; and (5) a $60.00 filing fee.  (Zwarg Dec., ¶¶ 10-12.)

The court finds that Attorney Zwarg’s hourly rate is reasonable, but the requested hours are unreasonable because this motion did not involve complex issues and Defendant did not file a reply in response to Attorney Shebby’s declaration.  Therefore, the court reduces the time for drafting the motion to 1.5 hours and the time for reviewing an opposition to 1.0 hour.

Accordingly, the court grants Defendant’s sanctions request in the reduced amount of $1,160.00: (1) 1.0 hour researching motion requirements and reviewing the case file—$275.00; (2) 1.5 hours drafting the entire motion—$412.50; (3) 1.0 hour reviewing the Shebby declaration—$275.00; (4) 0.5 hours anticipated to prepare for and attend the motion hearing—$137.50; and (5) a $60.00 filing fee.

CONCLUSION AND ORDER

Defendant Alto-Shaam, Inc.’s motion to deem the truth of the matters in its first set of requests for admissions admitted is granted.

1.  Plaintiff Dimitra Semponis and Plaintiff’s counsel of record are ordered to pay sanctions in the total amount of $1,160.00.

2.  Plaintiff’s counsel is ordered to pay these sanctions to Defendant’s counsel within twenty (20) days of the date of this order.

Defendant Alto-Shaam, Inc. to give notice.