Judge: Mark A. Young, Case: 23SMCV00513, Date: 2023-09-19 Tentative Ruling

Case Number: 23SMCV00513    Hearing Date: September 19, 2023    Dept: M

CASE NAME:           Falkner v. Smile Direct Club, et al.

CASE NO.:                23SMCV00513

MOTION:                  Motion to Deem Matters Admitted

HEARING DATE:   9/20/2023

Legal Standard

Pursuant to Code of Civil Procedure section 2033.280(b), a 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). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA 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 court “shall” grant the motion to deem RFA admitted, “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.” (CCP, § 2033.280(c).) 

Analysis

            Here, there is no dispute that the motion is moot. The only issue is whether mandatory sanctions should be imposed. If the motion was properly brought, the sanctions request is mandatory without exception.

            Defendant provides evidence that counsel agreed to an extension up to August 21, 2023. (See Johnson Decl., ¶¶3-9, Ex. 3.) The instant motion was filed on August 25, 2023. On the other hand, Plaintiff provides evidence showing that on August 22, 2023, counsel reached out to defense counsel via telephone, and informed him that both himself and his legal secretary were extremely ill with COVID. (Goldberg Decl., ¶ 5.) Based on the severity of his symptoms, the earliest he could get to the office to provide responses to the Request for Admissions (RFAs) would be August 25, 2023. (Id. ¶ 5.) Counsel explains that defense counsel expressed that Plaintiff’s counsel should take the time he needed to "take care of my health." (Id.) On August 25, 2023, Plaintiff provided responses to the RFAs. (Id., Ex. 5.) Defense counsel agrees that he spoke with Plaintiff’s counsel on August 22, 2023, the day after the deadline, but that Plaintiff did not request a retroactive extension of time, and Defendant did not offer one. (Supp. Johnson Decl. ¶ 7.) Code of Civil Procedure provides that any extension of time for responding to RFAs “shall be confirmed in a writing that specifies the extended date for service of a response.” (CCP § 2033.260(b).) Thus, even if the Court were to find that counsel orally agreed to an extension, such an agreement would be unenforceable under the Code. Thus, the due date for any responses was August 21, 2023. Therefore, the instant motion was properly brought, and sanctions are mandatory.

That said, only reasonable attorneys’ fees may be awarded. Counsel provides that his billable rate is $690 per hour and that he spent 4.4 hours drafting SDC’s motion papers. (Johnson Decl., ¶ 10.) SDC thus claims $3,036 in attorney’s fees and $60 in court costs. Reviewing the relatively simple motion, the Court finds that the requested fees are unreasonably high. The Court finds that a reasonable fee in this instance would be $750.00. The record also suggests that Plaintiff’s counsel was responsible for the delayed response, not Plaintiff.

Accordingly, sanctions are awarded in the reduced total amount of $750.00, including costs, against Plaintiff’s counsel of record only.  Sanctions are payable within 30 days.