Judge: Michael E. Whitaker, Case: 19STCV38470, Date: 2023-01-27 Tentative Ruling

Case Number: 19STCV38470    Hearing Date: January 27, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Thabo N. Mzilikazi (Plaintiff) moves to deem admitted the matters specified in Request for Admissions, set one (RFA), which Plaintiff propounded on Defendant Siwei Huang (Huang).  Plaintiff seeks monetary sanctions in connection with the motion.  Huang opposes the motion.

ANALYSIS

Pursuant to Code of Civil Procedure section 2033.280, subdivision (a), “[i]f a party to whom requests or admission are directed fails to serve a timely response…[t]he 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[.]”  (Code Civ. Proc., § 2033.280, subd. (a).)  Where a party fails to respond to requests for admissions, the propounding 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.¿ (Code Civ. Proc., § 2033.280, subd. (b).)  

Here, Plaintiff served the RFA on Huang on March 16, 2022, electronically and via personal service.  Huang’s responses were thus due by April 19, 2022.  After receiving a number of extensions, Huang provided unverified responses to the RFA on June 2, 2022.  On June 16, 2022, defense counsel served a verification for the same responses, however the verification was not signed by Huang.  As of the filing date of the motion, Plaintiff has not received verified responses from Huang.  “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court¿(1988) 206 Cal.App.3d 632, 636.)   

In opposition, Huang asserts that his responses are sufficient as no verification is required for objections.  Huang is correct but the Court notes that Huang’s responses contain both substantive answers and objections without a verification (RFA Nos. 1-14, 16-17 and 62-67), and objections only (RFA Nos. 15, 18-61 and 68-85).  Any response to discovery containing objections only must be signed by the responding party’s attorney, and any portion of a response containing fact-specific responses must be verified by the party to whom the written discovery is directed.  (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657; Code Civ. Proc., §§ 2030.250, 2033.240.) 

At the initial hearing, Plaintiff argued that Huang’s objections to RFA Nos. 15, 19-61 and 68-85 are defective because P.V. Holding Corporation (P.V. Holding) objects to such requests, not Huang.  Plaintiff contends that P.V. Holding Corporation cannot respond or object on behalf of Huang and as a result, Huang has not timely responded to RFA Nos.  15, 19-61 and 68-85. 

For example, Huang’s response to RFA No. 15 states:  “Defendant P.V. Holding Corporation is responding on behalf of Siwei Huang who was served under Civil Code Section 1939.33 and is presently unavailable to respond to discovery.   Based on information presently in Responding Party’s possession, Responding Party responds to this request as follows:  Objection.  This request is in violation of disclosure of expert witness information under CCP § 2034.210 et seq.  Since, it seeks prematurely to reveal protected expert witness information and opinions.  However, the experts have not fully completed their review of Plaintiff’s records and images and Defendant’s will notify Plaintiff as soon as these reviews are completed.” 

Based upon Plaintiff’s arguments, the Court continued the hearing and invited further briefing on the issue from Huang and Plaintiff. 

In the supplemental opposition, Huang argues that P.V. Holding is permitted to respond and object to the RFA on his behalf because Huang and P.V. Holding share the same attorney and because they have a statutorily created unity of interest.  But none of the authorities stand for the propositions Huang seeks to advance.  (See, e.g., Code Civ. Proc., §§ 2033.280, 2033.290; Civ. Code, § 1939.33; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403; Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651; Carli v. Superior Court (1984) 152 Cal.App.3d 1095.)  In short, the Court is unaware of any authority which allows one defendant to respond to requests for admissions for another defendant to forestall a finding of non-compliance with the Discovery Act. 

Nevertheless, from the plain reading of the responses to the subject RFA, Huang is not the party responding or asserting the objections  -- “Defendant P.V. Holding Corporation is responding on behalf of Siwei Huang.”  Also, from the plain reading of the responses to the subject RFA, P.V. Holding is asserting the objections – “Based on information presently in Responding Party’s possession, Responding Party responds to this request as follows:  Objection.”  In short, the Court finds that with respect to RFA Nos, 15, 19-61 and 68-65, Huang has failed to respond to the RFA that was directed to him, not P.V. Holding. 

Accordingly, the Court finds Huang has failed to serve timely responses to RFA Nos. 1-67, except No. 18 (in which Huang asserts an objection which may be challenged through a motion to compel further responses under Code of Civil Procedure section 2033.290.)   

Plaintiff requests monetary sanctions in connection with the motion.  The Court finds Huang’s failure to timely respond to the RFA to be an abuse of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subd. (d); 2033.280, subd. (c).). Thus, the Court will impose monetary sanctions against Huang and his attorney of record, Stuart J. Liebman, in the amount of $1560, which represents six hours of attorney time to prepare the moving and supplemental papers and attend the hearings at $250 per hour, plus the filing fee of $60. 

CONCLUSION AND ORDER

Therefore, the Court grants, in part, Plaintiff’s motion to deem admitted matters specified in the RFA per Code of Civil Procedure section 2033.280 and deems admitted the matters specified in the RFA propounded to Huang as to RFA Nos. 1-17 and 19-67.  

The Court orders Huang and his counsel of record, Stuart J. Liebman, jointly and severally to pay monetary sanctions in the amount $1560 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff is ordered to provide notice of the Court’s orders and file a proof of service of such.