Judge Kevin C. Brazile, Case 21STCV36925 2023-03-15 Tentative Ruling

TENTATIVE RULINGS

SUBMISSION INSTRUCTIONS

STANLEY MOSK COURTHOUSE, DEPARTMENT 20 - JUDGE KEVIN C. BRAZILE

Counsel may submit on the tentative ruling without appearing at the hearing by emailing Dept. 20 as soon as possible after reviewing a posted tentative. Though the Court makes every effort to post tentatives at least a day ahead of the hearing, this cannot be guaranteed due to the volume of motions. The email address is smcdept20@lacourt.org. In the subject line include:

1) The name and number of the case;
2) The word "SUBMITTING" or “NOT SUBMITTING” in all caps; and
3) The date of hearing.

In the body of the email include your name, contact information, and the party you represent (i.e. Defendant/moving party; Plaintiff/opposing party). Include all other parties on the email by "cc". Do not include any comments, questions or other information on your email.

PLEASE DO NOT call the court to submit on the tentative or to confirm receipt of your email. If you follow the instructions above, you will receive an automatic reply to your email confirming receipt of your email. If all parties submit, the tentative ruling will become the final ruling after the hearing date, the court will sign applicable orders/judgments, if any, and the final ruling will be posted online with the minute order. The moving party shall give notice of the final ruling.

If you submit on the tentative, you must immediately notify the other side by email that you will not appear at the hearing. 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 motion.

Tentative rulings are not invitations nor opportunities, to file further documents relative to the hearing in question. No such document will be considered by the Court.

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RULES ON USING EMAIL THE COURT

No ex-parte communications via email. Always copy all parties in all emails to Court.

Do not use email to file documents in Court. All documents must be filed in the Clerk’s office. Emails are not part of the official Court record. Do not use the email for any other purpose other than submitting/not submitting on tentative rulings or as ordered by the Court. Do not "cc" the Court on emails among the attorneys, parties or others. Do not use the email to ask questions regarding a case. For frequently asked questions go to the Court Information for Department 20 at www.lacourt.org.
The Court will not respond to inappropriate emails.

WARNING: Inappropriate use or misuse of the Court’s email or violation of these or other rules may result in sanctions, including blocking receipt of emails by that sender, after the first misuse/violation.

Defendant’s request for monetary sanctions is GRANTED in the amount of $1,000.00 against Plaintiff and Plaintiff’s counsel of record payable within thirty (30) days of this order.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

On October 6, 2021, Plaintiff Sean Jeffrey Wolfe (“Plaintiff”) filed this action against Defendants Brandon Jerold Wolfe, Michael Wolfe, Wolfe Family Enterprises, LLC, iPayment Inc., Robert Neal Purcell, and Robert Brady. This action was brought to resolve Plaintiff’s legal disputes regarding Brandon and Michael’s unlawful dissipation of millions of dollars of his assets stemming from multiple forced transfers of his ownership interests in Leaders Merchant Services, LLC to them; the sale of LMS to iPayment, and Sean’s status as a conservatee. (SAC ¶13.)

On February 8, 2023, Defendant Brandon Wolfe (“Defendant”) brought this motion to deem RFAs admitted. On March 2, 2023, Plaintiff filed an opposition, and on March 8, 2023, Defendant filed a reply.

Where a party fails to timely respond to a request for admission, the propounding 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. (Code Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) The court shall grant a motion to deem admitted requests for admissions, “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, subd. (c).) “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.” (Code Civ. Proc. § 2033.280(d).)

Defendant puts forth a declaration that on November 29, 2022, Defendant served discovery requests, including Requests for Admission upon Plaintiff. (de Castro Decl. ¶ 2, Exhibit A.) On December 29, 2022, Plaintiff served an unverified response to the RFAs. (de Castro Decl. ¶ 3., Exhibit B.) Defendant states that Plaintiff has not provided code-compliant responses to this discovery request at the time of filing this motion. (de Castro Decl. ¶ 6.)

In opposition, Plaintiff argues that the motion is now moot because Plaintiff has provided verification since the motion was filed. (Saffari Decl. ¶ 9.) Plaintiff’s counsel was unable to obtain Plaintiff’s signature for verification because Plaintiff was incarcerated and counsel was having difficulty getting into contact with Plaintiff and obtaining his signature. (Saffari Decl. ¶ 8.) Plaintiff’s counsel also states that counsel inadvertently emailed a version of the RFAs which did not include counsel’s signature as verification. (Saffari Decl. ¶ 9.) However, the responses were complete when served on June 2, 2022, and were not changed or amended when the verification was provided. (Saffari Decl. ¶¶ 9-10.)

In the reply, Defendant attaches the verification signed by Plaintiff. (de Castro Ex. F.) The initial RFA responses served on June 2022 indicate that the responses were complete, but only missing a signature on the verification page. (See de Castro Ex. B.) Thus, the Court finds that the responses are in substantial compliance prior to the hearing.

As Plaintiff has provided verification since the filing of this motion, the Court must deny the request to deem the admissions admitted. “A responding party’s service, prior to the hearing on the “deemed admitted” motion, of substantially compliant responses, will defeat a propounding party’s attempt under section 2033.280 to have the RFAs deemed admitted.” (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827.) If the party serves its responses before the hearing, the court has no discretion but to deny the motion. (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395-396.)

Defendant requests $1,600.00 in sanctions. Although delayed responses may defeat a motion to compel, they will not avoid monetary sanctions. Regardless of the reason for the delay in responding, it is mandatory that a monetary sanction be imposed on the party or attorney, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion. (Code Civ. Proc. § 2033.280(c).)

Thus, Defendant’s request for sanctions is GRANTED in a reduced amount of $1,000.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.