Judge Lon F. Hurwitz, Case 2020-01140015 2022-12-16 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 2020-01140015, Date: 2022-12-16 Tentative Ruling

1. Motion to Deem the truth of Matters Specified in Plaintiff's Request for Admissions (Set Four)

2. Motion to Compel Answers to Form Interrogatories

3. Motion to Compel Answers to Special Interrogatories

4. Motion to Compel Response to Requests for Admissions

5. Motion to Strike Answer

6. Status Conference

RULING:

Before the Court this day are five motions directed at Defendant Wesco Group. For the reasons set forth below, the Court makes the following rulings:

1. Motion to Deem the Truth of Matters Specified in Requests for Admissions (Set Four) Admitted is GRANTED. Monetary sanctions in the amount of $960 are awarded against Defendant Wesco.

2. Motion to Deem the Truth of Matters Specified in Requests for Admissions (Set Five) Admitted is GRANTED. Monetary sanctions in the amount of $960 are awarded against Defendant Wesco.

3. Motion to Compel Responses to Form Interrogatories - General (Set Four) is GRANTED. Monetary sanctions in the amount of $960 are awarded against Defendant Wesco.

4. Motion to Compel Responses to Form Interrogatories - General (Set Five) is GRANTED. Monetary sanctions in the amount of $960 are awarded against Defendant Wesco.

5. Motion to Strike Answer to Complaint is DENIED without prejudice. Defendant Wesco’s is not yet required to “Appear” in this action and, as such, is not yet required to “appear” through counsel. Additionally, the suspension of Wesco’s Corporate status can conceivably be cured before an appearance is required; and the Answer filed by Wesco was done by Counsel, before said suspension.

Requests for Admission (Motion Nos. 1–2)

Failure to timely respond to a Request for Admission (“RFA”) does not result in automatic admissions. Rather, the propounder of the RFAs must “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 § 2023.010 et seq. (CCP § 2033.280(b).)

The statute states “the court shall make this order” unless proposed responses “in substantial compliance” with CCP § 2033.220 are filed before the hearing. (CCP § 2033.280(c); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 395 [“(W)oe betide the party who fails to serve responses before the hearing. In that instance, the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you're out’ as applied to civil procedure.”].)

On 04-21-22, Plaintiff served her Requests for Admission (Set Four) on Defendant Wesco by mail. (Chavos Decl. [ROA 159] ¶ 4.) Defendant’s responses were due on 05-26-22, but it failed to serve responses. (Id. ¶¶ 4-5) Plaintiffs sent two meet and confer letters, but did not receive a response. (Id. ¶¶ 6–9.)

On 04-22-22, Plaintiff served her Requests for Admission (Set Five) on Defendant Wesco by mail. (Chavos Decl. [ROA 170] ¶ 4.) Defendant’s responses were due on 05-27-22, but it failed to serve responses. (Id. ¶¶ 4-5) Plaintiffs sent two meet and confer letters, but did not receive a response. (Id. ¶¶ 6–9.)

Here, given the absence of responses, the Court has no choice but to grant Plaintiff’s Motion and order that the requests be deemed admitted.

Sanctions (Motion Nos. 1–2)

Plaintiff requests sanctions against Defendant totaling $3,210 in connection with Motion No. 1. (Chavos Decl. [ROA 159] ¶ 13.) This amount utilizes a billing rate of $450 per hour and represents four hours preparing the motion, three anticipated hours for the reply and hearing, and the $60 filing fee. On the same basis, the same amount of sanctions are requested as to Motion No. 2. (ROA 170.)

These basic motions are unopposed and identical. In the Court’s opinion, they merit no more than two hours each and the related filing fees or, in other words, $960 ($450 x 2 + $60) each.

Form Interrogatories (Motion Nos. 3–4)

If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order compelling responses and for monetary sanctions. (CCP § 2030.290(b); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) The motion to compel may be heard even if tardy responses are served after the motion is filed. Unless the propounding party takes the matter off calendar, the court may determine whether the responses are legally sufficient and award sanctions for the failure to respond on time. (Sinaiko Healthcare, supra, 148 Cal.App.4th at 410-11.)

CCP § 2030.290 contains no time limit for a motion to compel where, as here, no responses have been served (i.e., no objections or answers of any kind). (Sinaiko Healthcare, supra, 148 Cal.App.4th at 410-411.) All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Sup.Ct. (Markum) (1980) 111 Cal.App.3d 902, 905-906 [No separate statement is required]; CRC 3.1345(b).) The failure to timely respond waives all objections to the interrogatories, so there are no issues left to “resolve” with opposing counsel.

On 04-21-22, Plaintiff served her Form Interrogatories - General (Set Four) and (Set Five) on Defendant Wesco by mail. (Chavos Decl. [ROA 151, 154] ¶ 4.) Defendant’s responses were due on 05-26-22, but it failed to serve responses. (Id. ¶¶ 4-5) Plaintiffs sent two meet and confer letters, but did not receive a response. (Id. ¶¶ 6–9.)

As Plaintiff has demonstrated that her form interrogatories were served on Defendant, the deadline to respond passed, and no responses have been provided, the motions are GRANTED.

Sanctions (Motion Nos. 3–4)

Plaintiff requests sanctions against Defendant totaling $2,760 in connection with Motion No. 3. (Chavos Decl. [ROA 154] ¶ 13.) This amount utilizes a billing rate of $450 per hour and represents three hours preparing the motion, three anticipated hours for the reply and hearing, and the $60 filing fee.

As to Motion No. 4, Plaintiff requests sanctions against Defendant totaling $2,310 (Chavos Decl. [ROA 151] ¶ 13.) This amount utilizes a billing rate of $450 per hour and represents two hours preparing the motion, three anticipated hours for the reply and hearing, and the $60 filing fee.

As above, these basic motions are unopposed and identical. In the Court’s judgment, they merit no more than two hours of attorney’s time each and the related filing fees or, in other words, $960 ($450 x 2 + $60) each.

Motion to Strike Answer (ROA 163-166)

It is well settled that a corporation must be represented by counsel and cannot represent itself in pro per. (Merco Construction Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 731.) Similarly, a suspended corporation cannot prosecute or defend any action. (Ransome-Crummey Co. v. Superior Court (1922) 54 Cal.App.4th 1366.)

Here, Defendant Wesco was previously represented by Michael Damsky of Guagenti & Damsky who filed an Answer on its behalf on 09-28-20 (ROA 14). Mr. Damsky then attempted to withdraw as counsel and, on 11-29-21, subsequently filed a substitution of counsel, which purportedly designated non-attorney John Melkonian, President and registered agent of Wesco, as counsel for Wesco. (ROA 123.) As there have been no further appearances filed on behalf of Defendant, Wesco remains unrepresented by counsel. As such, Wesco cannot currently “Appear” in this action. The Answer was an “Appearance” by Wesco; but that was done by counsel, Mr. Damsky, before his withdrawal and, as such, was proper. Since Mr. Damsky’s withdrawal, there has been no requirement that Defendant Wesco “Appear” in this action. Until such a requirement arises, there is no requirement that Wesco be represented by Counsel. Therefore, there are no grounds to strike Wesco’s Answer and enter default at this time.

While the Certificate of Status from the California Secretary of State indicates Defendant Wesco, as of 7/14/22, was a suspended corporation, the Defendant was apparently not so suspended on the date that the Answer was filed (9/28/20); and, as cited above, Wesco has not yet been required to appear since the withdrawal of Mr. Damsky..

So while Wesco cannot prosecute or defend any action based on said suspension (Ransome-Crummey Co. v. Superior Court (1922) 54 Cal.App.4th 1366; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1957) 155 Cal.App.2d 46), that suspension can be conceivably cured before Wesco is required to appear, as can the required representation by counsel.

Accordingly, the Motion to Strike Wesco’s Answer and enter default is Denied at this time without prejudice. Obviously, as a Status Conference is also set for 12/16/22, and Wesco cannot “Appear” at that Conference, to the extent that a Trial Date is set in this matter, a “requirement” that Wesco appear on that date will then be established; thereby triggering the necessity that Wesco either cure the Suspension of its Corporate status with the Secretary of State and retain counsel, or be subject to a Motion to Strike its Answer and have Default entered on the date of Trial.

Request for Judicial Notice (ROA 164)

The Court Grants the Request For Judicial Notice of the Certificate from the Secretary of State dated 7/14/22 as to Wesco’s Corporate Status; and denies the Request as to all other documents as those documents were immaterial to the rulings hereinabove.

Moving Party to give notice.