Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV04840, Date: 2024-05-08 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV04840, Date: 2024-05-08 Tentative Ruling

Plaintiff Ocean Sunrise LLC’s Motion for Matters Being Deemed Admitted [Against Defendant Enedelia Leal Powers] Pursuant to CCP § 2033.280 is is GRANTED in part. Defendant Enedelia Leal Powers shall provide verifications to her responses within ten (10) days of entry of this order. In all other respects, the motion is DENIED.

Plaintiff Ocean Sunrise LLC’s Request for Monetary Sanctions is GRANTED in the reduced amount of $600.00, payable by Defendant Enedelia Leal Powers and defense counsel to Plaintiff Ocean Sunrise LLC and Plaintiff’s counsel within thirty (30) days of entry of this order.

Defendants Bonnie B. Flores and Christopher J. Flores’ Request for Monetary Sanctions is GRANTED in the reduced amount of $600.00, payable by Plaintiff Ocean Sunrise LLC and Plaintiff’s counsel to Defendants Bonnie B. Flores and Christopher J. Flores and defense counsel within thirty (30) days of entry of this order.

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “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.” The court “shall” grant the motion to deem requests for admission admitted “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).)

Plaintiff Ocean Sunrise LLC (“Plaintiff”) served Defendant Enedelia Leal Powers (“Powers”) with Plaintiff’s Request for Admissions, Set One, on February 14, 2024. (Mot., Kim Decl. ¶ 18.) Plaintiff represents that Powers responded by objecting to every request and failing to verify the responses, and she failed to respond to the requests when they were first sent, despite Plaintiff’s serving the requests on three later occasions. (Mot., Kim Decl. ¶¶ 18-25) Powers opposes the motion on the ground that Plaintiff’s motion is one to compel further responses. This is true as to Plaintiff taking issue with the substance of the responses and Powers’ objections in the responses. However, Powers’ responses were not verified, and “[u]nsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) On the other hand, it is not clear from the motion that Plaintiff’s discovery requests were properly served upon all defendants, not just the defendant from whom Plaintiff sought responses. (Mot., Kim Decl. ¶ 25, Ex. A-2.) Nonetheless, Powers’ opposition states that all defendants were served on February 26.

Put simply, Powers’ responses should have been verified to constitute responses, and Plaintiff should have properly served all defendants with all discovery requests in each instance. As to Powers’ contention that the number of requests is excessive, Powers is reminded that this contention is best considered in a motion pursuant to Code of Civil Procedure section 2033.040. Insofar as Plaintiff takes issue with the nature of the objections, Plaintiff is reminded that these contentions are best considered in a required Informal Discovery Conference before the filing of a motion to compel further responses pursuant to Code of Civil Procedure section 2033.290.

Accordingly, Plaintiff Ocean Sunrise LLC’s Motion for Matters Being Deemed Admitted [Against Defendant Enedelia Leal Powers] Pursuant to CCP § 2033.280 is GRANTED in part. Defendant Enedelia Leal Powers shall provide verifications to her responses within ten (10) days of entry of this order. In all other respects, the motion is DENIED.

If a motion to have requests for admission deemed admitted is filed, “[i]t is mandatory that the court impose a monetary sanction . . . 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, subd. (c).) Further, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).) An order granting a request for monetary sanctions is proper where unsworn responses are provided. (See Appleton, supra, 206 Cal.App.3d at p. 636.)

Plaintiff requests $4,500.00 in monetary sanctions for the motion. Monetary sanctions are mandatory here, but the Court reduces the amount to $600.00, representing one hour spent preparing the motion, as the motion should have only sought verifications, and one hour appearing at the hearing on the motion, at the reduced rate of $300 per hour, as this matter was not particularly complex. Such sanctions are payable by Defendant Enedelia Leal Powers and defense counsel to Plaintiff Ocean Sunrise LLC and Plaintiff’s counsel within thirty (30) days of entry of this order.

Plaintiff served Defendants Bonnie B. Flores and Christopher J. Flores with Plaintiff’s Request for Admissions, Set One, on February 20, 2024. (Mot., Kim Decl. ¶ 15.) Plaintiff represents that Bonnie B. Flores and Christopher J. Flores failed to timely verify the responses, as the verifications were not received prior to the due date provided by defense counsel. (Mot., Kim Decl. ¶ 25, Exs. I-1, I-2.) In opposition, Bonnie B. Flores and Christopher J. Flores note that their verifications were provided before the filing of the instant motion. (Opp’n, Heller Decl. ¶ 5, Ex. A.)

The Court finds that Bonnie B. Flores and Christopher J. Flores properly provided the required verifications before the motion was filed, and Plaintiff’s motion was unnecessary. There is no basis for filing this motion simply because the verifications were received late but before the motion was filed. Accordingly, Plaintiff Ocean Sunrise LLC’s Motion for Matters Being Deemed Admitted [Against Defendants Bonnie B. Flores and Christopher J. Flores] Pursuant to CCP § 2033.280 is DENIED as MOOT.

Again, if a motion to have requests for admission deemed admitted is filed, “[i]t is mandatory that the court impose a monetary sanction . . . 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, subd. (c).) Here, the Court cannot conclude that the failure to provide verifications necessitated this motion because the verifications were provided before the motion was filed. Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Code of Civil Procedure section 2023.030, subdivision (a), provides that “[t]he 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.” The Court is concerned that Plaintiff filed the present motion despite the receipt of verifications, thus knowing that its motion was moot. Plaintiff’s contentions that there is no attorney execution and that the proof of service is not dated did not warrant filing this moot motion, and the Court is not concerned with the nature of the responses, as argued in the reply, in a motion to compel initial responses. Accordingly, the Court finds it proper to grant Bonnie B. Flores and Christopher J. Flores’ request for monetary sanctions. However, the Court reduces the amount to $600.00, representing one hour spent preparing the opposition and one hour appearing at the hearing on the motion, at the reduced rate of $300 per hour, as this matter was not particularly complex. Such sanctions are payable by Plaintiff Ocean Sunrise LLC and Plaintiff’s counsel to Defendants Bonnie B. Flores and Christopher J. Flores and defense counsel within thirty (30) days of entry of this order.

The Court takes care to note that this appears to be the beginning of an excessive number of planned discovery motions, as seven discovery motions are set for hearing after these two motions, which is concerning for a relatively new case. The present motions do not demonstrate meaningful attempts to resolve these issues without court intervention, and the Court presently lacks confidence that the parties and their attorneys will attempt to resolve any issues informally without resorting to motion practice. The parties are advised that the Court may deem it proper to appoint a discovery referee in this action to resolve discovery disputes if the parties cannot do so without court intervention, as the Court lacks the resources to hear an excessive number of discovery motions. The Court encourages the parties to resolve their disputes, discovery or otherwise, informally to avoid the costs of a discovery referee.