Judge Kerry Bensinger, Case 22STCV16659 2023-04-19 Tentative Ruling

On May 19, 2022, plaintiff Eduardo
Antonio Fuentes Medina (“Plaintiff”) filed this action against defendants Amazon.com
Services LLC (“Amazon”), Rapid Pasadena Services, LLC (“RPS”), and Mark Ronnie
Ramos (“Ramos”) asserting causes of action for (1) general negligence, (2) vicarious
liability, (3) negligent hiring, training, retention and supervision, (4)
negligent entrustment, and (5) joint enterprise. In his complaint, Plaintiff alleges Ramos was driving a motor
vehicle in the course and scope of his employment with Amazon and RPS when he
collided with Plaintiff’s vehicle on September 24, 2020.

On January 17, 2023, Plaintiff filed the
instant motion for an order deeming admitted Plaintiff’s Requests for Admission,
Set One, against RPS. RPS filed an opposition
and Plaintiff filed a reply.

On March 2, 2023, this motion was heard
and argued. The Court continued the
motion to assess whether RPS’s responses to Plaintiff’s requests for admissions
were in substantial compliance.

On March 16, 2023, the Court issued a
tentative ruling finding RPS’s responses to be substantially compliant. Following argument, the Court continued the
matter to allow the parties to submit supplemental briefing on the issue of
whether a verified response submitted untimely yet containing objections could
be considered in substantial compliance.
The Court also directed the parties to address California Rules of
Court, rule 8.1115, subdivision (b) because, at the hearing, Plaintiff’s
counsel cited unpublished opinion as binding authority pursuant to the law of
the case exception under Rule 8.1115.

The Court has reviewed the supplemental
briefing, and for the reasons stated below, adopts the March 16, 2023 tentative
ruling, incorporated herein, as the order of the Court.

Rule
8.1115 concerns the citation of opinions.
It states, in relevant part, “[a]n unpublished opinion may be cited or
relied on when the opinion is relevant under the doctrines of law of the case,
res judicata, or collateral estoppel.” (Cal.
Rules of Court, rule 8.115, subd. (b)(1).)
If an exception under subdivision (b) does not apply, “an opinion of a
California Court of Appeal or superior court appellate division that is not
certified for publication or ordered published must not be cited or relied on
by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115, subd. (a).)

If a party
to whom requests for admission are directed fails to serve a timely response,
the propounding party may move for an order that the truth of the matters
specified in the requests be deemed admitted.
(Code Civ. Proc., § 2030.280, subd. (b).) Moreover, failure to timely serve responses
waives objections to the requests. (Code
Civ. Proc., §§ 2030.280, subd. (a).)

If the
court finds a party has unsuccessfully made or opposed a motion to compel
responses to interrogatories or inspection demands, the court “shall impose a monetary
sanction . . . unless it 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, subd. (c), 2031.300, subd. (c).)¿ In the context of a motion to deem requests for
admission admitted, it is mandatory the court impose monetary sanctions on the
party or attorney, or both, whose failure to serve a timely response to the
request necessitated the motion. (Code
Civ. Proc., § 2033.280, subd. (c).)

Sanctions against counsel: The
court in Kwan Software Engineering, Inc. v. Hennings (2020) 58
Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an
attorney are governed by a different standard than sanctions against a party:

By
the terms of the statute, a trial court under section 2023.030(a) may not
impose monetary sanctions against a party's attorney unless the court finds
that the attorney “advised” the party to engage in the conduct resulting in
sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20
Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)
“Unlike monetary sanctions against a party, which are based on the
party's misuse of the discovery process, monetary sanctions against the party's
attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It
is not enough that the attorney's actions were in some way improper.” (Corns
v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).)
Because an attorney's advice to a client is “peculiarly within [his or her]
knowledge,” the attorney has the burden of showing that he or she did not
counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions
against an attorney offers sufficient evidence of a misuse of the discovery process,
the burden shifts to the attorney to demonstrate that he or she did not
recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni,
at p. 262, 24 Cal.Rptr.2d 501.)

At the March
16 hearing, counsel for Plaintiff cited an unpublished opinion as authority in
support of his position. Counsel argues
the Court could consider the unpublished opinion pursuant to the law-of-the-case
doctrine exception under Cal. Rules of Court, rule 8.1115, subdivision
(b). That rule provides, “[a]n
unpublished opinion may be cited or relied on when the opinion is relevant
under the doctrines of law of the case, res judicata, or collateral estoppel.”

That
exception, however, does not apply here. “The doctrine of ‘law of the case’ deals with
the effect of the first appellate decision on the subsequent retrial or appeal:
The decision of an appellate court, stating a rule of law necessary to the
decision of the case, conclusively establishes that rule and makes it
determinative of the rights of the same parties in any subsequent retrial or
appeal in the same case. [Citation.]” (People
v. Nash (2023) 87 Cal.App.5th 483, 489 (cleaned up).)

Under the doctrine
of law of the case, Plaintiff would be permitted to cite an unpublished opinion
if that opinion determined the rights of the same parties in a subsequent
retrial or appeal in this case. That is
not our case, and the exception does not apply. The general rule limiting citation of unpublished
opinions applies: “[A]n opinion of a California Court of Appeal or superior court
appellate division that is not certified for publication or ordered published
must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115, subd.
(a).) Accordingly, Plaintiff is
precluded, as is this Court, from citing to or relying on an unpublished
opinion.

Plaintiff’s
supplemental briefing relies on U.S. Bank, N.A., Trustee for Banc of America
Funding Corp. Mortg. Pass-Through Certificates, Series 2005-F v. White Horse
Estates Homeowners Ass’n (9th Cir. 2021) 987 F.3d 858, 863 (White Horse)
for the proposition that because unpublished authority informs the determination
of how the California Supreme Court would decide a question of California law,
Plaintiff and the Court may consider an unpublished opinion in deciding whether
untimely, objection-filled responses to requests for admission amount to
substantial compliance. This argument runs
afoul of Cal. Rules of Court, rule 8.1115, subd. (a). Perhaps when a federal court is confronted
with a question of state law that has not been addressed by a published state
court opinion, White Horse offers that a federal court may
consider unpublished state opinions. Plaintiff’s
citation to a string of federal cases only underscores that point. (Plaintiff’s Supp. Brief, at p. 1:18-2:6.) We, however, are not in federal court and are
bound by Cal. Rules of Court, rule 8.1115, subd. (a).

Undeterred
Plaintiff cites Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th
148, 161, for the proposition that an unpublished opinion can be cited not for
its binding authority but rather for its reasoning. (See also K.G. v. Meredith (2012) 204
Cal.App.4th 164, 172, fn.9 (suggesting that citing an unpublished opinion to
explain the factual background of the case and not as legal authority is an
appropriate use of an unpublished opinion that does not violate rule 8.1115); The
Utility Reform Network v. Public Utilities Com. (2014) 223 Cal.App.4th 945,
951, fn.3 (same).) While the reasoning
may be presented, the citation may not.

The reasoning presented, stripped of any reference to the unpublished
case citations, do not aid Plaintiff’s arguments. Assuming the reasoning had been presented (without
the citations), a trial court is vested with the discretion to determine
whether responses are substantially compliant. Agreed, and here, the Court has found the
answers to be substantially compliant. Cases
are to be on determined on the merits, and a trial court should avoid handing a
party a ”windfall” on an RFA that would foreclose the opposing party from pursuing
its case on the merits. Also
agreed. “Parties often
propound requests for admission covering the ultimate facts of the case that,
if admitted, are outcome determinative. The
propounding party who gets ‘lucky’ and receives no response then notices a
motion for a deemed admitted order . . . If the propounding party does not
receive a response by the hearing, then, . . . he ‘hits the jackpot’ and ‘wins’
an irrevocable deemed admitted order disposing of the lawsuit. By permitting
relief under [section 2033.280, subd. (a)(2)], we eliminate such undeserved
windfalls and the resulting subversion of the policy favoring the resolution of
lawsuits on the merits.” (Wilcox v.
Birthwhistle (1999) 21 Cal.4th 973, 982-983.)

RPS, here, served untimely responses before the hearing,
which, when stripped of the improper objections, are substantially compliant. (See discussion below.)

Here, Plaintiff’s
counsel served the discovery requests on RPS on November 22, 2022. (Simoudis Decl., ¶ 2.) In his motion, Plaintiff asserts RPS served responses
with boilerplate objections. (Mot., p. 3.) For this reason, Plaintiff requests an order
deeming admitted Plaintiff’s Request for Admissions against RPS.

RPS argues
Plaintiff’s motion is improper because (1) RPS served substantially compliant responses
to Plaintiff’s Requests for Admission on February 16, 2023, (2) RPS’s failure
to timely serve verified responses was related to Plaintiff’s confusing service
and RPS’s counsel’s mistake, inadvertence, and/or excusable neglect; and (3)
Plaintiff’s motion is unnecessary as RPS’s counsel provided verifications for
RPS’s responses before the hearing.

If a party to whom requests for admission are directed
fails to serve a timely response, the party to whom the requests for admission
are directed waives any objection to the requests, including one based on
privilege. The court, on motion, may
relieve that party from this waiver on its determination that (1) The party has
subsequently served a response that is in substantial compliance with Sections
2033.210, 2033.220, and 2033.230, and (2) the party’s failure to serve a timely
response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subd. (a)(1), (2).) Unless the court determines the responding
party to a motion “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 must order the RFAs deemed admitted. (St. Mary v. Superior Court (2014) 223
Cal.App.4th 762, 776, citing Code Civ. Proc., § 2033.280, subd. (c).)

Here, it is undisputed that RPS submitted untimely
responses. Having done so, RPS waived any
objections to Plaintiff’s discovery requests. (Code Civ. Proc., § 2033.280, subd. (a).) The issue, then, is whether RPS is entitled to
relief from this waiver. RPS is entitled
to such relief.

RPS submits
a copy of its discovery responses to Plaintiff’s Requests for Admission, Set
One. (Serpik Decl., Ex. 3.) RPS also submits verifications for its
discovery responses, which were provided to Plaintiff before the March 2, 2023 hearing
for this motion. (Stecker Decl., ¶ 2,
Ex. 3.) Counsel for RPS failed to calendar the deadline to respond to
Plaintiff’s discovery inadvertently because it was confused by service of
Plaintiff’s discovery requests as a single PDF.
(Serpik Decl., ¶ 4.) Plaintiff’s
Request for Admission consists of seventeen requests. A review of RPS’s responses reveal a mixture
of substantive responses and objections.
Specifically, RPS provided fifteen substantive responses and seventeen
objections to the at-issue discovery, which comply with Code of Civil
Procedure, sections 2033.210, 2033.220, and 2033.230. (See Stecker Decl., Ex. 3.) Accordingly, the Court finds that RPS served
verified, substantially compliant responses prior to the hearing of this motion.
Plaintiff is not entitled to an order
deeming the Requests for Admission admitted against RPS.

Notwithstanding
the Court’s disposition of this motion, the Court recognizes that RPS responded
to Requests for Admission Nos. 14 and 16 with objections only. Failure to timely serve responses waives
objections to the requests. (Code Civ.
Proc., §§ 2030.280, subd. (a).) The
Court orders RPS to provide substantive responses, without objections, to
Request for Admission Nos. 14 and 16.

Plaintiff
requests imposition of monetary sanctions against RPS and its counsel of record
for preparing and filing the instant motion and reply to RPS’s opposition in
the amount of $1,237.00. In the context of a motion to deem requests
for admission admitted, the court must impose monetary sanctions on the party
or attorney, or both, for failure to serve a timely response to the request
necessitated the motion. (Code Civ. Proc., §§ 2030.290, subd. (c), 2033.280,
subd. (c).) Here, it is
undisputed that RPS did not serve timely responses to Plaintiff’s Requests for
Admission. Plaintiff substantiates its
request for monetary sanctions. (See Reply,
Simoudis Decl., ¶ 17.) Accordingly, the Court grants Plaintiff’s
request and imposes sanctions against RPS in the amount of $1,237.00.[1]

In
opposition, RPS requests imposition of monetary sanctions against Plaintiff in
the amount of $1,750. Although RPS
provided Plaintiff with verifications prior to the March 2, 2023 hearing, it
was not sufficiently clear whether RPS had provided substantially compliant
responses. Accordingly, the Court declines
to impose monetary sanctions against Plaintiff.

The Court orders Defendant Rapid
Pasadena Services, LLC to provide verified, objection-free responses to Request
for Admission Nos. 14 and 16 within 20 days of this order.

Plaintiff’s request for monetary
sanctions is granted. Defendant Rapid Pasadena Services, LLC is ordered
to pay monetary sanctions to Plaintiff, by and through Plaintiff's counsel, in
the amount of $1,237 within 20 days of this order.

Defendant Rapid Pasadena Services,
LLC’s request for monetary sanctions is denied.

Parties who intend to submit on this
tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating
intention to submit on the tentative as directed by the instructions provided
on the court website at www.lacourt.org.
Please be advised that if you submit on the tentative and elect not to
appear at the hearing, the opposing party may nevertheless appear at the
hearing and argue the matter. Unless you
receive a submission from all other parties in the matter, you should assume
that others might appear at the hearing to argue. If the Court does not receive emails from the
parties indicating submission on this tentative ruling and there are no
appearances at the hearing, the Court may, at its discretion, adopt the
tentative as the final order or place the motion off calendar.

Hon.
Kerry Bensinger

Judge of the Superior Court

[1] At the March 2, 2023 hearing, RPS’s
counsel sufficiently explained the basis for the late response. Pursuant to Hennings, supra,
the Court finds RPS’s counsel has submitted evidence to show that RPS’s counsel
did not advise RPS’s conduct, which necessitated the filing of this
motion. Accordingly, the Court does not
impose monetary sanctions against counsel for RPS.