Judge: Lynette Gridiron Winston, Case: 23PSCV03336, Date: 2024-03-20 Tentative Ruling
Case Number: 23PSCV03336 Hearing Date: March 20, 2024 Dept: 6
CASE NAME: Lawrence Elmer Barkley, Jr. v. Judy Ann Drebert
Plaintiff’s Motion to Deem Requests Admitted, and for Sanctions
TENTATIVE RULING
The Court DENIES Plaintiff’s motion to deem requests admitted.
The Court DENIES Plaintiff’s motion to compel as to Plaintiff’s First Sets of Form Interrogatories, Special Interrogatories, and Requests for Production.
The Court DENIES Plaintiff’s requests for monetary sanctions.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a partition action. On October 27, 2023, plaintiff Lawrence Elmer Barkley, Jr. (Plaintiff) filed this action against defendant Judy Ann Drebert (Defendant) and Does 1 through 10, alleging one cause of action for partition. Defendant was personally served with the Summons and Complaint on November 13, 2023. On November 27, 2023, Plaintiff served the above-mentioned discovery requests on Defendant. More than 30 days elapsed and Defendant did not file an Answer or otherwise respond to the Complaint. Plaintiff did not file a request for entry of default. Instead, on February 21, 2024, Plaintiff filed a motion to deem requests for admissions admitted and also requested an order compelling responses to form interrogatories, special interrogatories, and request for production of documents. Defendant still has not appeared in this action so the motion is unopposed.
LEGAL STANDARD
When a party to whom interrogatories are directed fails to respond, under Code of Civil Procedure section 2030.290, subdivision (b), the party propounding the interrogatories may move for an order compelling a response. A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2030.290, subd. (a).) “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.” (Id., § 2030.300, subd. (d).)
When a party to whom an inspection demand is directed fails to respond under Code of Civil Procedure section 2031.300, subdivision (b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2031.300, subd. (a).) “[T]he court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (Id., § 2031.310, subd. (h).)
A party upon whom a request for admissions has been made has 30 days to respond. (Code Civ. Proc., §¿2033.250, subd. (a).) The court upon motion may extend the time for response. (Id.) When a party fails to serve a timely response, the propounding party’s remedy is to seek a motion to deem the genuineness of any documents and the truth of any matters specified in the requests admitted. (Id., §¿2033.280, subd. (b).) The court must make this order unless it finds that the responding party has served, prior to the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Code of Civil Procedure, section 2033.220. (Id., §¿2033.280, subd. (c).) The court must impose a monetary sanction on the party whose failure to serve a timely response necessitated the motion to deem the requests for admission admitted. (Id.)
DISCUSSION
Plaintiff seeks an order from the Court deeming Plaintiff’s First Set of Requests for Admission to Defendant admitted, and for an order compelling responses to Plaintiff’s First Sets of Form Interrogatories, Special Interrogatories, and Requests for Production, as well as monetary sanctions against Defendant in the amount of $3,737.50. On November 27, 2023, Plaintiff served the above-mentioned discovery requests on Defendant. (Sikavi Decl., ¶ 7, Exs. 2-5.) Plaintiff has not received any responses yet. (Sikavi Decl., ¶ 8.)
The Court does not find Plaintiff’s motions to be well taken. California Rules of Court, Rule 3.110, subdivision (g), states: “If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. (CRC Rule 3.110(g); emphasis added.). Defendant had 30 days from the date of service to file and serve a responsive pleading. Defendant was served with the Summons and Complaint on November 13, 2023. (Sikavi Decl., ¶ 5; see Proof of Service filed 12/5/2023.) Thus, Defendant had until December 13, 2023 to file and serve a responsive pleading. Defendant did not file or serve any responsive pleading and no extension was requested or granted. (Sikavi Decl., ¶ 6.) Thus, Plaintiff was required to file a request for entry of default no later than December 26, 2023, given the weekend and court holiday. Plaintiff did not request entry of default but instead waited until February 2, 2024 to file these discovery motions and seek monetary sanctions. It is apparent to the Court that Defendant is not participating in this litigation and her default should have been entered in December 2023, which would have rendered the necessity of filing these motions moot.
Moreover, each set of discovery requests should have been addressed in a separate motion with separate motion filing fees. Plaintiff combined all of the written discovery requests at issue into one document and paid only one motion filing fee, which was improper. (See Notice, pg. 3 of pdf, CRS Receipt.)
With respect to monetary sanctions, the Court DENIES Plaintiff’s requests for monetary sanctions finding that the imposition of sanctions would be unjust and Defendant’s failure to serve a timely response to requests for admission did not necessitate this motion given that Defendant did not respond to the Complaint and Plaintiff did not request the entry of default as required.
Based on the foregoing, the Court DENIES Plaintiff’s motions and requests for monetary sanctions.
CONCLUSION
The Court DENIES Plaintiff’s motion to deem requests admitted.
The Court DENIES Plaintiff’s motion to compel as to Plaintiff’s First Sets of Form Interrogatories, Special Interrogatories, and Requests for Production.
The Court DENIES Plaintiff’s requests for monetary sanctions.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.