Judge: Lisa R. Jaskol, Case: 21STCV26544, Date: 2023-12-29 Tentative Ruling
Case Number: 21STCV26544 Hearing Date: December 29, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 19, 2021, Plaintiff Marissa Cianciulli filed this action against Defendants Warner Bros. Entertainment, Inc. dba Warner Bros. Television (“Defendant”) and Does 1-100 for negligence, negligent infliction of emotional distress, and negligent hiring, retention, and training. On December 27, 2023, Defendant filed an answer.
On August 17, 2023, Plaintiff filed a substitution of attorney form stating that she would represent herself in place of her former attorney.
On November 8, 2023, Defendant filed a motion to deem admitted matters specified in requests for admission and for sanctions, set for hearing on December 29, 2023. The proof of service states that Defendant electronically served the motion on Plaintiff. Plaintiff has not filed an opposition.
Trial is currently scheduled for October 21, 2024.
PARTY’S REQUESTS
Defendant asks the Court to deem admitted the matters specified in requests for admission served on Plaintiff and impose sanctions on Plaintiff.
LEGAL STANDARD
Code of Civil Procedure section 2033.280 provides:
“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:
“(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:
“(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.
“(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.
“(b) The requesting 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 under Chapter 7 (commencing with Section 2023.010).
“(c) The court shall make this order, 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. 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.)
DISCUSSION
Self-represented parties “are to be served by non-electronic methods unless they affirmatively consent to electronic service.” (Cal. Rules of Court, rule 2.251(c)(3)(B).)
“Express consent to electronic service may be given by either of the following:
“(i) Serving a notice on all parties and filing the notice with the court.
“(ii) Manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.”
(Code Civ. Proc., § 1010.6, subd. (c)(3).)
“Consent, or the withdrawal of consent, to receive electronic service may only be completed by a person entitled to service.” (Code Civ. Proc., § 1010.6, subd. (c)(5).)
On August 17, 2023, Plaintiff filed a substitution of attorney form stating that she would represent herself in place of her former attorney. On November 8, 2023, Defendant filed the motion to deem admitted matters specified in requests for admission and for sanctions. Although the proof of service states that Defendant electronically served the motion on Plaintiff, Defendant has presented no evidence showing that Plaintiff expressly or affirmatively consented to electronic service. Therefore, Defendant’s service of the motion on Plaintiff is defective. The Court denies the motion.
CONCLUSION
Moving party is ordered to give notice of the Court’s ruling.
Moving party is to file proof of service of the Court’s ruling within five days.