Judge: Michael E. Whitaker, Case: 22STCV01113, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV01113    Hearing Date: February 9, 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

MOTIONS

            Plaintiff Rodney Fink (“Plaintiff”) moves to (1) compel responses from Defendant Cammarano’s LLC (“Defendant”) to Form Interrogatories, set one (“FROG”) and (2) deem admitted each request for admission, set one (“RFA”).  Plaintiff also seeks monetary sanctions. Plaintiff’s motions are unopposed.

ANALYSIS

1. Form Interrogatories

    

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  (Code Civ. Proc., § 2030.290(b).)  Further, “[t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or the protection for work product[.]”  (Id., § 2039.290(a).)

Here, Plaintiff served the Form Interrogatories, set one, on Defendant via email on October 4, 2022.  (Mayo Decl.-FROG, ¶ 2, Ex. D.)  Defendant’s responses were thus due by November 7, 2022.  (Mayo Decl.-FROG, ¶ 7.)  As of the filing date of the motion, Plaintiff has not received responses from Defendant.  (Mayo Decl.-FROG, ¶ 7.)   

The Court notes that no proof of service is attached confirming that Form Interrogatories, set one, was served on Defendant on October 4, 2022.  Without proof of service, the court cannot find that the Form Interrogatories, set one, were properly served at this time.  The Court will continue the motion to allow Plaintiff to provide proof of service showing the Form Interrogatories were served on October 4, 2022.

1. Request for Admissions

    

Where a party fails to respond to requests for admission, 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).)  The court “shall” grant a motion to deem admitted the matters specified in the requests for admissions, “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.”  (Code Civ. Proc., § 2033.280, subd. (c).)   

Here, Plaintiff served the Requests for Admission, set one, on Defendant via email on October 4, 2022.  (Mayo Decl.-RFA, ¶ 2, Ex. E.)  Defendant’s responses were thus due by November 7, 2022.  (Mayo Decl.-RFA, ¶ 10)  As of the filing date of the motion, Plaintiff has not received responses from Defendant.  (Mayo Decl.-RFA, ¶ 10)  Thus, Plaintiff is entitled to an order deeming admitted Defendant’s responses to Plaintiff’s Requests for Admission, set one.

Plaintiff also requests monetary sanctions in connection with the motion.  “It is mandatory that the court impose a monetary sanction under [Code of Civil Procedure section 2023.010, et seq.] on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”  (Code Civ. Proc., § 2033.280, subd. (c).)  Thus, the Court will impose monetary sanctions against Defendant and Defendant’s counsel of record, Jeffrey E. Lerman.  The Court will imposes monetary sanctions in the amount of $560 which represents two hours of attorney time to prepare the motion to deem admitted Plaintiff’s Requests for Admissions, set one, and to attend the hearing, at $250 per hour, plus the filing fee at $60 per motion.

CONCLUSION AND ORDER

Therefore, the Court continues Plaintiff’s motion to compel responses to the Form Interrogatories, Set One, to March 16, 2023 at 1:30 P.M.  Plaintiff shall file/serve a supplemental declaration, attaching the proof of service regarding the Form Interrogatories, on or before March 2, 2023. 

Further, the Court grants Plaintiff’s motion to deem admitted matters specified in the RFAs per Code of Civil Procedure section 2033.280, and orders the matters specified in the RFA propounded to Defendant deemed admitted.

Further, the Court orders Defendant and Defendant’s counsel of record, Jeffrey E. Lerman, jointly and severally, to pay monetary sanctions in the amount of $560 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.