Judge: Margaret L. Oldendorf, Case: 21AHCV00030, Date: 2022-12-20 Tentative Ruling

Case Number: 21AHCV00030    Hearing Date: December 20, 2022    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

JAMES CHEUNG, an individual,

 

                                            Plaintiff,

vs.

 

EDMUND LOUIE, an individual, et al,

 

                                            Defendants.

And related cross-action.

 

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Case No.: 21AHCV00030

 

[TENTATIVE] ORDER CONDITIONALLY DENYING MOTIONS TO DEEM MATTERS ADMITTED EXCEPT AS TO MONETARY SANCTIONS

 

Date:   December 20, 2022

Time:  8:30 a.m.

Dept.:  P

 

           

            I.         INTRODUCTION

            This action stems from a boundary dispute between two neighboring properties in South Pasadena. James Cheung initiated this litigation by suing his next-door neighbors Edmund Louie and Deborah Kotani. (For ease of reference, the properties are referred to as the Cheung Property and the Louie Property.) The litigation stems from a fence and hedge between the properties which has existed there for decades, but which encroaches on the Louie Property by approximately two feet.

            Louie and Kotani responded to the pleading by demurring and by filing a cross-complaint against Cheung, as well as family members Tiffany Chiu Yuk Leung, Randall Leung, and Darin Tung Choi Leung. The cross-complaint seeks quiet title and related claims. Demurrers to Cheung’s complaint and amended complaint were sustained, eventually without leave to amend. The cross-complaint remains.

            At issue are Requests for Admission propounded by Louie/Kotani on each of the four cross-defendants. The RFAs ask cross-defendants to admit the genuineness of certain documents, and to admit the truth of a number of facts. The RFAs were served July 1, 2022, via email on James Cheung (who is self-represented); and on Joel Farkas, who represents the three Leung cross-defendants. None of the cross-defendants provided responses. These motions followed.

            Upon being served with notice of these motions, Cross-Defendants filed oppositions explaining that they had not noticed the email by which the RFAs were served because they were unfamiliar with the name of the sender: Joselyn Turner. They also each state that code-compliant responses to the RFAs will be served prior to the hearing. According to proofs of service filed with the Court on December 15, 2022, each of them may have done this. 

If the responses are code-compliant responses, the motions are properly denied except as to the requests for monetary sanctions, which are granted. At this point, the motions are conditionally denied; Cross-Complainants may renew the motions if they deem the responses to be deficient pursuant to the provisions of the Civil Discovery Act. 

 

II.        LEGAL STANDARD

            Code Civ. Proc. §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.

 

III.      ANALYSIS

            There is no doubt that all of the Cross-Defendants failed to timely respond to the Requests for Admission served on them by Cross-Complainants. Accordingly, Cross-Complainants are entitled to the relief requested, unless Cross-Defendants have served responses that are in substantial compliance with Section 2033.220. Consequently, the motions are conditionally denied. If after examination of the responses Cross-Complainants find them to be deficient pursuant to the provisions of the Civil Discovery Act,  they may these four motions re-set for hearing without having to pay additional filing fees. (The motions should all be set on the same day if this occurs.)

            Cross-Complainants are nevertheless entitled to monetary sanctions at this time.  Cross-Defendants’ assertion that they did not open emails addressed to them (that reference this action in the subject line) is not accepted by the Court.

            The declarations supporting the motions adequately justify the requested sanctions. The time spent for drafting all four motions is two hours and the time for drafting replies and appearing at the hearing is another two hours. At counsel’s $265 hourly rate the total is $1,060. Adding $145 for one hour of paralegal time to prepare the exhibits and $60 each filing fee for the motions ($240) brings the total to $1,445. Dividing that amount the four motions results in sanctions of $361.25 each.

 

IV.      CONCLUSION

            The motions to deem matters admitted are denied except as to Cross-Complainants’ requests for monetary sanctions. Cross-Defendants James Cheung, Tiffany Chiu Luk Leung, Randall Kai Leung, and Darin Tung Choi Leung are each ordered to pay monetary sanctions in the amount of $361.25 to Edmund Louie and Deborah Kotani within 30 days of notice of this order. Cross-Complainants are ordered to provide notice of this ruling.

           

 

           

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT