-Motion to Deem Defendant National Real Estate Advisors, LLC’s Request for Admission (Set One) Deemed Admitted by Plaintiff and Request for Monetary Sanctions

All three motions are granted.

Plaintiff is ordered to serve verified responses without objections with respect to the interrogatories and request for production within 15 days after the date of this order. Plaintiff is ordered to serve any responsive documents at that same time.

  

The request for sanctions is granted with respect to the RFA motion and is denied with respect to the other two motions.

Sanctions in the amount of $265 against Plaintiff. Sanctions are due within 15 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is an action for premises liability arising from a trip and fall incident which took place in December 2018. Plaintiff Jorge Bolanos filed his Complaint against Defendants National Real Estate Advisors, LLC, NREA-TRC 700, LLC, and The Ratkovich Company on December 18, 2020.

On October 21, 2022, Defendant National Real Estate Advisors, LLC (“NREA”) filed the instant motions to compel responses to Form Interrogatories (“FROGs”), and Requests for Production (“RPDs”), and to deem Requests for Admissions (“RFAs”) admitted.

Moving Arguments

NREA propounded written requests for discovery on Plaintiff on July 20, 2022. Plaintiff has not responded to the requests to date.

Opposing Arguments

None. 

Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (Code Civ. Proc. section 2030.260, subd. (a).)

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc section 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that needs be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc. 2030.290(a)) Even if objections do not need to be verified, objections will be waived if the responding party “fails to file any response within the statutory time period.” Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.

 

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300, subd. (a).) Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. 

Where there has been no timely response to requests for admissions, a “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, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).”  The court “shall” grant the motion to deem requests for admission admitted “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(c).)

Unverified discovery responses are tantamount to no response at all, and are subject to a motion to compel responses (rather than a motion to compel further responses).  (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.) However, objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.)

A party waives its objections to a discovery request when it does not serve a timely response to the request. (CCP § 2030.290(a)) Even if objections do not need to be verified, objections will be waived if the responding party “fails to file any response within the statutory time period.” Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.

A court may not award monetary sanctions under Code Civ. Proc. §§2023.010 and 2023.030 standing alone or read together. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 500.) Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.290(c), 2031.300(c)).)  

NREA’s counsel testifies that she propounded requests for written discovery on Plaintiff on July 20, 2022. (Almodovar Decl., ¶4.) On September 9, 2022, after receiving no responses, NREA’s counsel sent an email to Plaintiff’s counsel demanding verified responses without objections by September 26, 2022. (Id.) To date, Plaintiff has not served responses to NREA’s discovery requests or responded to NREA’s counsel’s communications. (Id.) Because Plaintiff has not served any responses, NREA’s motions are granted. 

The same analysis applies to NREA’s request to deem their requests for admissions admitted. The genuineness of any documents and the truth of any matters specified in Plaintiff’s motions are admitted.  

Here, NREA’s request for sanctions are denied with respect to the interrogatories and requests for production because these motions were not opposed. Sanctions with respect to the RFAs are granted because Plaintiff failed to file a timely response to the requests. NREA requests $265 in sanctions for one hour of attorney time at a rate of $180 per hour, filing fees, and service fees. The request is granted.