Judge Katherine Chilton, Case 21STLC07318 2023-02-16 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC07318, Date: 2023-02-16 Tentative Ruling

Case Number: 21STLC07318 Hearing Date: February 16, 2023 Dept: 25

PROCEEDINGS: MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Philip Jayakumar

RESP. PARTY: Defendant Lorine Mikhaiel

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED;

REQUEST FOR SANCTIONS

(CCP §§ 2033.280)

TENTATIVE RULING:

Plaintiff Philip Jayakumar’s Motion for Order Deeming Admitted Truth of Facts and Genuineness of Documents, Set One, Admitted, is DENIED. The Court also DENIES Plaintiff’s Request for Sanctions and Defendant Lorine Mikhaiel’s request for legal fees.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) [OK]

[X] Correct Address (CCP §§ 1013, 1013a) [OK]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) [OK]

OPPOSITION: Filed on January 3, 2023. [ ] Late [ ] None

REPLY: None filed as of February 8, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On October 7, 2021, Plaintiffs Philip Jayakumar (“Jayakumar”) and Quantum Tattoo Ink, LLC (“Quantum”), (collectively “Plaintiffs”), filed an action against Defendant Lorine Mikhaiel (“Defendant”) for breach of oral contract, promissory estoppel, and fraud.

On November 12, 2021, Defendant Mikhaiel filed a Demurrer to the Complaint. On January 14, 2022, Plaintiff Jayakumar filed Amendments to the Complaint, adding Defendant Derma Blush, Inc. (“Derma Blush”) and OPM Organic Permanent Makeup (“OPM”) as Does 1 and 2, respectively. On the same day, Plaintiff filed a First Amended Complaint (“FAC”). On March 15, 2022, the Court placed the Demurrer off calendar as moot. (3-15-22 Minute Order.)

On December 9, 2022, Plaintiff Jayakumar filed a Motion for Order Deeming Admitted Truth of Facts and Genuineness of Documents (“Motion”) as to Defendant Mikhaiel. Plaintiff also requests sanctions in the amount of $1,842.50. (Mot. p. 2.) On December 29, 2022, the Court, on its own motion, continued the hearing on the Motion to February 16, 2023. (12-29-22 Minute Order.) Defendant Mikhaiel filed an Opposition to the Motion (“Opposition”) on January 3, 2023.

No reply has been filed.

II. Legal Standard & Discussion

A. Requests for Admission

Under Code of Civil Procedure 2033.280(b), failure to respond to requests for admission in a timely manner allows the requesting party to “move for an order that…the truth of any matters specified in the requests be deemed admitted” by the party that failed to respond. The requesting party’s motion must be granted by the court, “unless [the court] 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).) Since such motion is in response to failure to respond, there is no requirement to meet and confer prior to moving to deem the requests for admission admitted. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390, 411.). 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. (Code Civ. Pro. § 2033.280(a).)

Here, Plaintiff served Requests for Admission, Set One, on Defendant Mikhaiel on March 14, 2022. (Amin Decl. ¶ 2; Ex. A.) Responses were due by April 13, 2022. (Mot. p. 3.) On July 22, 2022, the Requests for Admission were re-sent via fax, but Defendant has not provided any responses. (Amin Decl. ¶ 3.)

On January 3, 2023, Defendant Mikhaiel filed an Opposition to the Motion (“Opposition”). Defendant states that she served responses to the Request for Admissions on April 11, 2022, via first class mail. (Ferreira Decl. ¶ 3, Ex. A.) Defendant has attached the Responses and Proof of Service of the Reponses. (Ibid.) Plaintiff has not replied to Defendant’s responses and has not attempted to meet and confer regarding these responses. (Ibid. at ¶ 4.) Defendant also argues that if the responses were not sufficient, Plaintiff could have filed a motion to compel further responses pursuant to Code of Civil Procedure § 2033.290. (Oppos. pp. 2-3.) However, a motion to compel further responses should have been filed within 45 days of service of the verified responses and after meeting and conferring with Defendant. (Ibid. at pp. 2-5.) Given that the 45-day period has expired, and Plaintiff has not attempted to meet and confer regarding Defendant’s responses, Plaintiff “waives any right to compel response to the requests for admission.” (Ibid. at p. 5.)

The Court finds that Defendant has produced sufficient evidence to demonstrate that she has served responses to the Requests for Admission. Plaintiff has not replied to Defendant’s Opposition. Accordingly, Plaintiff’s Motion is DENIED.

B. Sanctions

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone because of that conduct. Misuse of discovery includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc. § 2023.010(d)).

Furthermore, courts are obligated to impose monetary sanctions in cases where a “failure to serve a timely response to requests for admission necessitated this motion.” (Ibid.) Sanctions are calculated based on “reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Ibid. § 2023.030(a)).

Plaintiff requests $1,842.50 in sanctions as follows: attorney’s fees at a rate for $575.00 per hour for 1.1 hours spent on drafting the Motion and “an additional 2 hours the day of the hearing on this and all related motions,” as well as $60 in filing fees. (Amin Decl. ¶ 4.) Given that Plaintiff’s Motion is DENIED, his request for sanctions is also denied.

In her Opposition, Defendant requests legal fees in the amount of $375 as follows: 1.5 hours to prepare the Opposition and appear at the hearing, at a rate of $225.00 per hour, and filing fees, for a total request of $375.00. (Ferreira Decl. ¶ 5.) The Court does not find any basis to award legal fees and Defendant has not cited any authority for an award of legal fees. Accordingly, Defendant’s request for legal fees is DENIED.

III. Conclusion & Order

For the foregoing reasons:

Moving party to give notice.