Judge Michael E. Whitaker, Case Number: 23SMCV02556, Date: 2024-05-29 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV02556, Date: 2024-05-29 Tentative Ruling

Plaintiff Sonya Daniels (“Plaintiff”) moves to deem admitted the matters specified in Requests for Admission, Set one (“RFA”) propounded to Defendants Body By Batal Cosmetic Surgery Center and Obaida Batal MD (“Defendants”) and for sanctions. The Motion is unopposed.

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).)

Plaintiff contends she served Defendants with the RFA on April 2, 2024, and that Defendants had not responded as of May 5, 2024, when Plaintiff signed her declaration.[1] Therefore, Plaintiff seeks to deem admitted the matters specified in the RFA.

As a threshold matter, Plaintiff has not provided any proof of service indicating that she properly served Defendants with the RFA and Motion. In particular, Code of Civil Procedure section 1005 requires that all moving and supporting papers shall be filed and served at least 16 court days prior to the hearing. Finding no evidence of proper service of the motion on Defendants, the Court cannot grant Plaintiff’s request.

The Court also finds the motion substantively deficient. In support of the motion, Plaintiff’s declaration indicates the following:

2. On April 2, 2024 served Plaintiff s Request for Admissions, Set No. One on the Defendants via eServe and a copy USPS April 18, 2024. A true and correct copy. [sic]

4. As of the date of filing the present motion, our office has not received any responses to Piaintiff’ s [sic] Request for Admissions, Set No. One.

Attached to the Declaration as Exhibit A is an unauthenticated screenshot of two text messages from “me” to “Obaida” that indicates “Meet and confer discovery requests” and then consists of a series of thirteen interrogatories, the last line of which is cut off. Attached as Exhibit B is a proof of service, dated April 2, 2024, indicates service by mail to “19228 Ventura blvd suite A Tarzana Ca 91367” but does not indicate what documents were served or what date the documents were served by mail.

The Court finds Plaintiff’s evidence insufficient to demonstrate that Defendants were properly served via electronic service or by mail. The content of Plaintiff’s declaration is incomplete, the supporting documents are unauthenticated, and there is no clear proof of (1) what RFAs were served; (2) when they were served; or (3) how they were served. Furthermore, the Court notes that the service address listed in the unauthenticated proof of service (Ex. B) is different from Defendants’ address as listed on the Answer and in the Court’s record. Therefore, Plaintiff has not demonstrated that she ever properly served the RFA on Defendants.

Furthermore, even if Defendants were served on April 2, 2024, Code of Civil Procedure section 1013 extends the 30-day deadline to respond to discovery by five calendar days when service is effectuated by mail, and Code of Civil Procedure section 1010.6 extends the 30-day deadline by two court days when the discovery is served electronically. Thus, service by mail on April 2, 2024 would make the responses due May 7, and electronic service on April 2 would make the responses due May 6. Either way, Plaintiff’s May 5 declaration indicating that she had not yet received responses is insufficient to establish that Defendants failed to timely respond to discovery.

Therefore, the Court denies Plaintiff’s motion to deem admitted the matters specified in the RFA for the reasons stated.

Further, having found Plaintiff failed to provide an evidentiary basis that (1) Defendants were ever properly served with the RFA; or (2) Defendants failed to timely respond to the RFA, the Court denies Plaintiff’s request for sanctions.

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

[1] Although the Declaration indicates “as of the date of filing the present motion,” the Declaration was signed on May 5, but the motion was not filed until May 9. Therefore, the Court construes Plaintiff’s statement as not having received responses as of the date the declaration was signed.

DEPARTMENT	207
HEARING DATE	May 29, 2024
CASE NUMBER	23SMCV02556
MOTION	Motion to Deem Admitted
MOVING PARTY	Plaintiff Sonya Daniels
OPPOSING PARTIES	None