Judge: Mark E. Windham, Case: 22STLC00290, Date: 2022-10-03 Tentative Ruling

Case Number: 22STLC00290    Hearing Date: October 3, 2022    Dept: 26

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED AND COMPEL RESPONSES TO REQUEST FOR PRODUCTION; REQUEST FOR SANCTIONS

 (CCP §§ 2033.280, 2031.300, 2023.010)

TENTATIVE RULING:

Cross-Complainant Seda Khechumyan’s (1) Motion to Deem Requests for Admission, Set One, Admitted; Request for Sanctions; and (2) Motion to Compel Responses to Request for Production of Documents, Set One; Request for Sanctions, are DENIED.

SERVICE OF MOTION:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of lease agreement. Cross-action for breach of contract, fraud, unfair business practices, breach of covenant of quiet enjoyment, breach of covenant of good faith and fair dealing, bad faith failure to return security deposit, and forcible eviction.

REQUEST FOR RELIEF: Deem the requests for admission served on Cross-Defendant on May 18, 2022, admitted. Compel responses to request for production of documents served on Cross-Defendant on May 18, 2022. Award Cross-Complainant sanctions of $1,720.50.

OPPOSITION: Counsel for Cross-Defendant did not consent to electronic service so the discovery requests were not properly served electronically. Also, the Motions were prematurely filed before the deadline to respond when calculating service of the discovery requests by mail.

REPLY: Counsel for Cross-Defendant consented to electronic service and is required to accept service by electronic mail under the Court’s Emergency Rules. Electronic service adds two days to the service period so Cross-Defendant’s responses were due June 20, 2022. These Motions were timely filed June 21, 2022.   

ANALYSIS:

On May 18, 2022, Cross-Complainant Seda Khechumyan (“Cross-Complainant”) served Cross-Defendant 6356 Van Nuys, LLC (“Cross-Defendant”) with Requests for Admission, Set One, and Requests for Production of Documents, Set One. (Motions, Sarkissian Decl., Exh. A.) The discovery was served by electronic and first-class mail. (Ibid.)

The parties dispute the date the responses were due. Cross-Defendant contends that it never consented to electronic service and that only service by first-class mail was effective with respect to the discovery requests. Cross-Complainant contends consent to electronic service was indicated when Cross-Defendant’s counsel provided an email address. (Reply, p. 2:10-12.) No citation is provided for the idea that listing an email address on a pleading is sufficient to consent to electronic service. (Ibid.) Nor do the provisions for electronic service under Cal. Rules of Court, Rule 2.251 or Code of Civil Procedure section 1010.6 indicate that listing an email address is sufficient to consent to electronic service. Cross-Complaint also cites to Emergency Rules of Court, Rule 12, however, that rule was repealed effective November 13, 2020. (Cal. Rules of Court, App. I, Rule 12.)

The discovery requests, therefore, were only effectively served by first class mail, which adds five days to the notice period. (Code Civ. Proc., § 1005, subd. (b).) As a result, Cross-Defendant’s responses to the discovery was not due until June 22, 2022. Cross-Complainant filed the instant (1) Motion to Deem Requests for Admission, Set One, Admitted; Request for Sanctions; and (2) Motion to Compel Responses to Request for Production of Documents, Set One; Request for Sanctions, on June 21, 2022. Therefore, the Motions were prematurely filed prior to the existence of any discovery dispute.

The Court additionally notes that the discovery requests served are in violation of Code of Civil Procedure section 94, which limits the total number of written discovery requests in a limited jurisdiction case to 35 interrogatories, demands of production and requests for admission. (Code Civ. Proc., § 94, subd. (a).) Cross-Complainant, however, served 41 Requests for Admission and 28 Requests for Production of Documents, for a total of 69 written requests. (Motions, Sarkissian Decl., Exh. A.) The Court will not compel responses to the discovery requests that were propounded in violation of the Code of Civil Procedure.

Conclusion

Based on the foregoing, Cross-Complainant Seda Khechumyan’s (1) Motion to Deem Requests for Admission, Set One, Admitted; Request for Sanctions; and (2) Motion to Compel Responses to Request for Production of Documents, Set One; Request for Sanctions, are DENIED.