Judge: Lisa R. Jaskol, Case: 21STCV42979, Date: 2024-08-15 Tentative Ruling

Case Number: 21STCV42979    Hearing Date: August 15, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On November 22, 2021, Plaintiff Makenna S. Pound (“Plaintiff”) filed this action against Defendants Gonzalo Munoz (“Munoz”), Miguel A. De Leon (“De Leon”), and Does 1-50 for motor vehicle tort and general negligence. 

On November 29, 2022, Munoz and De Leon filed an answer. 

On June 24, 2024, Plaintiff filed a motion to deem admitted matters specified in requests for admission, set one, served on Munoz, and for sanctions.  The motion was set for hearing on July 18, 2024.  On August 7, 2024, Munoz filed an opposition.  On August 9, 2024, Plaintiff filed a reply. 

On July 18, 2024, the Court posted a tentative ruling and continued the hearing to August 15, 2024. 

PARTIES’ REQUESTS 

Plaintiff asks the Court (1) to deem admitted matters specified in requests for admission, set one, served on Munoz and (2) to impose sanctions. 

Munoz asks the Court to deny the motion. 

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 

On March 6, 2024, Plaintiff served requests for admission, set one, on Munoz.  Munoz did not serve timely responses and had not served responses by the time Plaintiff filed this motion on June 24, 2024. 

Munoz opposes the motion, arguing that on June 25, 2024, Munoz’s counsel learned that Munoz was receiving hospice care and had dementia.  According to Munoz, on June 26, 2024, Plaintiff’s counsel agreed to accept unverified responses from Munoz and to take the motion off calendar in light of Munoz's condition.  Munoz asserts that he served the unverified responses on July 2, 2024 but Plaintiff has refused to take the motion off calendar.  Munoz argues that, based on these facts, the Court should deny the motion, including the request for sanctions. 

To support his arguments, Munoz has presented a doctor’s letter dated June 30, 2024 stating that Munoz “is currently admitted as a Hospice patient with SK Hospice Services Inc. since: 04/03/2024, under the care and supervision of: Dr. Maria Lourdes De Leon.”  (Exh. C.)  The letter states that Munoz has Alzheimer’s disease and “Unspecified Dementia, Moderate, with Mood Disturbance.”  (Exh. C.) 

In addition, Munoz has provided an email from his counsel to Plaintiff’s counsel dated June 26, 2024 confirming Munoz’s counsel’s understanding that Plaintiff’s counsel had agreed to withdraw the discovery motion on the condition that Munoz’s counsel provide Munoz's unverified responses to the requests for admission by July 2, 2024.  (Exh. A.) 

In reply, Plaintiff acknowledges that Munoz served unverified responses to the requests for admission on July 2, 2024.  Plaintiff contends that the Court should nonetheless grant the motion because unverified responses are the equivalent of no response at all.  In addition, Plaintiff asserts that the doctor’s letter does not prove that Munoz cannot participate in the litigation, the doctor did not sign the letter under penalty of perjury, and Munoz has not authenticated the letter. 

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”  (Evid. Code, § 1400.)  Here, Munoz’s counsel has provided a declaration stating that counsel received the letter from the doctor.  (Rabbani dec. ¶ 4.)  Counsel has sufficiently authenticated the letter for purposes of this motion.  

Most notably, Plaintiff does not contest Munoz’s contention that Plaintiff’s counsel agreed to withdraw the motion in return for service of Munoz’s unverified responses to the requests for admission.  Plaintiff does not, for example, show that Plaintiff's counsel responded to Munoz's counsel's June 26, 2024 email (which memorialized the parties' agreement) by denying that Plaintiff's counsel had agreed to withdraw the motion.   Despite Plaintiff’s agreement to withdraw the motion, Plaintiff now insists that the Court grant the motion and impose sanctions on Munoz. 

The Court denies the motion.  Plaintiff’s counsel promised to withdraw the motion in return for Munoz’s unverified responses.  Munoz’s counsel provided the unverified responses, but Plaintiff’s counsel reneged on his promise to withdraw the motion.  The Court will not reward this litigation conduct. 

CONCLUSION 

The Court DENIES Plaintiff Makenna S. Pound’s motion to deem admitted matters specified in requests for admission, set one, served on Defendant Gonzalo Munoz. 

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.