Judge Katherine Chilton, Case 21STLC08646 2022-09-19 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC08646, Date: 2022-09-19 Tentative Ruling

Case Number: 21STLC08646 Hearing Date: September 19, 2022 Dept: 25

PROCEEDINGS: MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

MOVING PARTY: Plaintiff Eitan Homa, M.D. & Jennifer Krasnoff, M.D

RESP. PARTY: None

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

(CCP §§ 2033.280)

TENTATIVE RULING:

Plaintiff Eitan Homa, M.D. & Jennifer Krasnoff, M.D., Inc.’s to Deem Requests for Admission, Set One, Admitted as to Defendant Braun is GRANTED. Plaintiff’s Request for Sanctions is also GRANTED in the amount of $1,247.50 as to Defendant Braun, to be paid to Plaintiff’s counsel within 20 days notice of this order.

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: None filed as of September 14, 2022. [ ] Late [X] None

REPLY: None filed as of September 14, 2022. [ ] Late [X] None

ANALYSIS:

I. Background

On December 7, 2021, Plaintiff Eitan Homa, M.D. & Jennifer Krasnoff, M.D., Inc., dba Dr. Jen’s UVRx (“Plaintiff”) filed an action against Defendant Factory Artwear, Inc. (“Factory Artwear”) and Lynn Bruan (“Braun”), (collectively “Defendants”), for breach of contract, conversion, money had and received, and pierce the corporate veil.

On January 11, 2022, Defendants Braun and Factory Artwear filed a joint Answer. On June 1, 2022, the Court granted Plaintiff’s Motion to Strike Answer, filed on January 13, 2022, on the basis that the Answer was “improperly filed by self-represented Defendant Braun on behalf of herself and Defendant Factory, a corporation.” (6-1-22 Minute Order.)

On June 7, 2022, Plaintiff’s Request for Entry of Default was rejected by the Court due to an error on the form. (6-7-22 Request; 6-8-22 Notice of Rejection.)

On June 20, 2022, Plaintiff filed the instant Motion to Deem Requests for Admission, Set One, Admitted (“Motion – RFAs”) as to Defendant Bruan and a request for sanctions in the amount of $2,910.00.

On August 19, 2022, the Court, on its own motion, continued the hearing on the Motion to September 19, 2022.

No opposition has been filed.

II. Legal Standard and 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 Braun, on May 4, 2022. (Loeb Decl. ¶ 2; Ex. A.) According to Plaintiff’s counsel, Defendant returned the envelope with the Requests marked “RTS,” in other words “Return to Sender,” “[a]s has been his modus operandi in this matter.” (Ibid. at ¶ 3; Ex. B.). As of the date of the instant Motion, Defendant has not provided any responses to Plaintiff’s Requests and has not asked for an extension. (Ibid.; Mot. p. 3.)

Since Plaintiff has demonstrated that Defendant Braun has failed to respond to the Requests for Admission and Defendant Braun has not opposed the Motion and shown otherwise, the Court deems the truth of the statements in the Request for Admissions admitted.

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)).

Here, the Court finds that Defendant Braun failed to respond to the Plaintiff’s Requests for Admission. Thus, the Court is obligated to impose monetary sanctions.

For the Motion to Deem Requests for Admission Admitted, Plaintiff requests $2,850.00 based on the following calculation: attorney’s fees for five (5) hours of preparing the instant Motion and one (1) hour for the hearing on the Motion, at a rate of $475.00 per hour, and $60 in filing fees. (Loeb Decl. ¶ 4.) The Court finds Plaintiff’s request excessive as to the motion that was filed and no opposition was filed. The Court grants sanctions in the amount of $1,247.50 for two hours to prepare the instant Motion, a half hour to attend the hearing, and $60 in filing fees.

III. Conclusion & Order

For the foregoing reasons:

Moving party to give notice.

The Court sets Order to Show Cause Re: Entry of Default as to Defendant Factory Artwear, Inc. on DECEMBER 5, 2022, AT 9:30 A.M. in Department 25, SPRING STREET COURTHOUSE.