Judge Kenneth R. Freeman, Case Number: 19STCV40317, Date: 2023-12-05 Tentative Ruling

Judge: Kenneth R. Freeman, Case: 19STCV40317, Date: 2023-12-05 Tentative Ruling

Case Number: 19STCV40317 Hearing Date: December 5, 2023 Dept: 14

Instant Motion

Defendant now moves this court for an order deeming the Request for Admissions (“RFAs”) served on both Plaintiff Nathan Johnson and on Plaintiff Shari Edwards, as admitted. Defendant also seeks sanctions in the amount of $1,580.00.

Decision

The motion is CONTINUED to January 9, 2024, at 8:30 am.

The court sets an Order to Show Cause re: $1,000 Sanctions against Plaintiff Shari Edwards for January 9, 2024, at 8:30 am.

Plaintiff Shari Edwards may file a supplemental brief responding simultaneously to (a) Defendant’s supplemental brief of December 1, 2023, and (b) the court’s OSC. That brief is due on or before December 20, 2023. Defendant may file a supplemental reply on or before January 2, 2023.

Governing Statute

Code of Civil Procedure § 2033.280 provides in relevant part as follows:

“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010)…

(b) The 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).

(c) The court shall make this order, 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. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”

Discussion

This motion first came on for hearing on October 19, 2023. Due to circumstances beyond the court’s control, counsel were not able to present oral argument and elected instead to file further written argument. The court considered their additional papers and made a ruling on October 31, 2023.

That ruling directed counsel as follows:

“Plaintiffs are ORDERED to serve verifications for their responses to the RFAs by 5 pm on November 10, 2023. If verifications have been served by then, counsel can call the court and the motion will be taken off-calendar. If not, Defendant may file a supplemental brief and declaration by November 17, 2023. Plaintiffs may file a supplemental brief and declaration in response by November 28, 2023. Further sanctions may be sought and awarded based on the supplemental papers.”

Counsel did not call the court. Nor did they file timely supplemental briefs. On December 1, 2023, as part of ordinary advance calendar review, court staff contacted counsel by phone. During that phone call, Defense counsel informed the court that one plaintiff (Mr. Nathan Johnson) had served a verification and the other (Ms. Shari Edwards) had not. Defense counsel indicated his intent to file paperwork and requested that the hearing remain on calendar.

Later that day, counsel supplied the court with an emailed courtesy copy of the document he filed. That document recites the same factual summary provided above, and asks the court to deem the requests submitted to Ms. Edwards as admitted by her. It also asks for an unspecified amount in additional sanctions.

Because Defendant did not follow the court’s express instructions about the briefing schedule, Plaintiff will not have adequate notice or time to respond to Defense’s brief. Nor would the court have adequate time to read and evaluate any such response. Therefore, the only appropriate option available is a further continuance of the motion.

However, because Plaintiff Shari Edwards appears to be in violation of the court’s prior order to serve verifications, and because the court does not wish to simply repeat this cycle, it is also appropriate for the court to set an OSC re: Sanctions against Plaintiff Shari Edwards. Code of Civil Procedure §§ 177.5, 2023.010(g), 2023.030(a).

Conclusion

Because neither Plaintiff Shari Edwards nor this court had proper notice of Defendant’s supplemental brief, the motion must be CONTINUED to January 9, 2024, at 8:30 am.

However, because Plaintiff Shari Edwards appears to be in violation of this court’s prior order, the court sets an Order to Show Cause re: $1,000 Sanctions against Plaintiff Shari Edwards for January 9, 2024, at 8:30 am.