Judge: Lisa R. Jaskol, Case: 21STCV23933, Date: 2023-12-18 Tentative Ruling
Case Number: 21STCV23933 Hearing Date: April 8, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On June 28, 2021, Plaintiff John Tyson Smith filed this action against Defendants Jorge Hernandez (“Hernandez”), All Valley Battery Service, Inc. dba Ammari Auto Center (“Ammari”), and Does 1-50 for negligence.
On August 3, 2022, Hernandez and Ammari (collectively, “Defendants”) filed an answer.
On February 14, 2024, Plaintiff filed motions to deem admitted matters specified in requests for admission, set two, numbers 17, 18, 19, 20, 21, and 22 and for issue, evidence, and monetary sanctions. The motions were set for hearing on March 14, 2024. The Court continued the hearings to April 8, 2024. On March 1, 2024, Defendants filed an opposition. On March 7, 2024, Plaintiff filed replies.
Trial is currently scheduled for October 1, 2024.
PARTIES’ REQUESTS
Plaintiff asks the Court to deem admitted matters specified in requests for admission against Hernandez and Ammari and to order issue, evidentiary, and monetary sanctions.
Defendants ask the Court to deny the motions as moot.
LEGAL STANDARD
Code of Civil Procedure section 2033.290 provides:
“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
“(1) An answer to a particular request is evasive or incomplete.
“(2) An objection to a particular request is without merit or too general.
“(b) (1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.
“(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.
“(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.
“(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 further response, 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.
“(e) If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted. In lieu of, or in addition to, this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2033.290.)
DISCUSSION
On December 18, 2023, the Court granted Plaintiff’s motion to compel Hernandez’s and Ammari’s further responses to requests for admission, set two, numbers 17-22. The Court ordered Hernandez and Ammari to provide further verified code-compliant responses by January 17, 2024.
Hernandez and Ammari did not provide further responses to the requests for admission by January 17, 2024 as the Court ordered on December 18, 2023. Therefore, under Code of Civil Procedure section 2033.290, the Court “may order that the matters involved in the requests be deemed admitted. In lieu of, or in addition to, this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2033.290, subd. (e).)
Defendants argue that the Court should deny the motions because Defendants served further responses to the requests for admission on February 14, 2024, and served verifications on February 22, 2024. According to Defendants, Plaintiff’s motions therefore are moot.
The motions are not moot. Code of Civil Procedure section 2033.280, subdivision (c), allows a party to avoid the imposition of an order deeming admitted the truth of matters specified in requests for admission (a “deemed admitted” order) by serving responses “before the hearing on the motion” to deem the matters admitted. The governing statute here, however, is Code of Civil Procedure section 2033.290, which applies when a party fails to comply with an order to provide further responses to requests for admission. (Code Civ. Proc., § 2033.290.) Unlike Code of Civil Procedure section 2033.280, Code of Civil Procedure section 2033.290 does not include a provision exempting a party from a “deemed admitted” order if the party serves responses to requests for admission before the hearing on the motion.
Defendants also challenge the correctness of the December 18, 2023 order. The Court will not consider this argument because Defendants did not file a timely motion for reconsideration of the December 18, 2023 order.
Code of Civil Procedure section 2033.290 authorizes the Court to impose monetary sanctions instead of (or in addition to) a “deemed admitted” order. (Code Civ. Proc., § 2033.290, subd. (e).) The parties do not address these alternatives in their papers. Plaintiff requests both a “deemed admitted” order and monetary sanctions of $3,723.90 against each Defendant.
Despite Defendants’ failure to comply with the December 18, 2023 order by the January 17, 2024 deadline, the Court exercises its discretion to impose only monetary sanctions on Defendants under Code of Civil Procedure section 2033.290, subdivision (e). Defendants ultimately served belated responses to the requests for admission after Plaintiff filed these motions.
Plaintiff’s request for $3,723.90 in sanctions on each motion is based on eight hours of attorney time at a rate of $450.00 per hour, a hearing reservation fee of $61.65, and a filing fee of $62.25. Counsel spent three hours drafting the moving papers and anticipated spending an additional five hours reviewing the opposition, preparing a reply, and attending the hearing.
The Court grants $561.65 in sanctions for each motion based on two hours of attorney time at a reasonable rate of $250.00 per hour and one $61.65 fee.
CONCLUSION
The Court GRANTS in part the motion of Plaintiff John Tyson Smith filed on February 14, 2024 and orders Defendant Jorge Hernandez and his counsel to pay Plaintiff John Tyson Smith $561.65 in sanctions within 30 days of the hearing on this motion under Code of Civil Procedure section 2033.290, subdivision (e). In all other respects, the Court DENIES the motion.
The Court GRANTS in part the motion of Plaintiff John Tyson Smith filed on February 14, 2024 and orders Defendant All Valley Battery Service, Inc. dba Ammari Auto Center and its counsel to pay Plaintiff John Tyson Smith $561.65 in sanctions within 30 days of the hearing on this motion under Code of Civil Procedure section 2033.290, subdivision (e). In all other respects, the Court DENIES the motion.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.