Judge Lee S. Arian, Case Number: 21STCV45326, Date: 2023-11-06 Tentative Ruling

Devin Gaston (“Plaintiff”) files the instant action against First Transit Inc. (“Defendant”) after she was injured while riding Defendant’s buses on December 10, 2019. (Complaint, ¶¶ 8-9.) Plaintiff filed suit on December 13, 2021 alleging a single cause of action for negligence.

Defendant filed (1) a Motion to Compel Plaintiff’s Verified Response to Request for Production of Documents (Set One) and a Request for Monetary Sanctions and (2) a Motion for an Order that the Truth of the Matters Specified in Defendant’s Requests for Admission (Set One) be Deemed Admitted and for Monetary Sanctions (“Motions”). No opposition was filed to either motion.

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4…(b) The party making the demand may move for an order compelling response to the demand. (c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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.” (CCP § 2031.300)

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (CCP § 2023.030(a).)

“Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery.” (CCP § 2023.010)

Code of Civil Procedure § 2033.250, provides, in pertinent part, that “[w]ithin 30 days after service of the request for admissions . . . the party to whom the requests are directed shall serve the original of the response to them on the requesting party.” A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (CCP §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.) Requests for admissions must be deemed admitted where no responses in substantial compliance was served before the hearing. (CCP §2033.280(c).) As to motions to deem matters admitted, no meet and confer is required. (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal. App. 4th 393, 395, overruled on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983. Also see Leach v. Superior Court (1980) 111 Cal.App.3d 902, 904–906, 169 Cal.Rptr. 42 [rejecting argument that state rule of court requiring informal meet and confer applied to motion where no response at all had been made to interrogatory requests, reasoning that because objections had been waived for failure to timely answer, there was “nothing to ‘resolve’ with the meaning” of the rule)].)

“[A] motion to have admission requests deemed admitted may not be granted where the record establishes ... that (1) proposed responses to the requests have been served prior to the hearing on the motion and (2) such responses are in substantial compliance with the provisions of section 2033, subdivision (f)(1).” (Tobin v. Oris (1992) 3 Cal. App. 4th 814, 828, overruled on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983 n.12.) Courts evaluate tardy responses to requests for admissions, in toto, to determine whether they substantially comply with the code, and do not evaluate each individual response. (St. Mary v. Sup. Ct. (2013) 223 Cal.App.4th 762, 779-80.)

Here, Defendant presents the Declaration of Sean Mintie (“Mintie Dec.”) which states that discovery requests for both Request for Production of Documents and Request for Admissions were served on June 8, 2022, while another colleague Ms. Soheila Mazdeh was with Defense counsel’s firm. (Mintie Dec., ¶¶ 4 and 7.) After several attempts to contact Plaintiff’s counsel, Ms. Mazdeh reached Plaintiff’s counsel by telephone and a deadline of August 3, 2022, was set for responses; however, no responses were ever received by Defense counsel. (Mintie Dec., ¶ 7.) Ms. Mazdeh attempted to contact Plaintiff’s counsel three more times, in April 2023, June 2023, and in August 2023, but to no avail. (Mintie Dec., ¶ 8.) After current Defense counsel Sean Mintie attempted to meet and confer with Plaintiff’s counsel on September 28, 2023, no responses were received. (Mintie Dec., ¶ 10.)Therefore, the Motions will both be granted, and sanctions imposed on Plaintiff, pursuant to Defense counsel’s calculations as follows:

· Counsel anticipated another 2 hours to review opposition briefs and prepare a reply.

Considering the similarities between the Motions, and the fact that no opposition was filed nor reply submitted, the Court will impose sanctions on Plaintiff, and award monetary sanctions to Defendant, in the amount of $1,500.00, in total for both Motions together.

Accordingly, Defendant’s Motion to Compel Plaintiff’s Verified Response to Request for Production of Documents (Set One) and the Motion for an Order that the Truth of the Matters Specified in Defendant’s Requests for Admission (Set One) be Deemed Admitted are both GRANTED. The Court orders sanctions against Plaintiff to Defendant in the amount of $1,500.00. Responses are to be made and sanctions paid within 30 days of this Order.

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’s 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. Lee Arian

Judge of the Superior Court