Judge: Michelle C. Kim, Case: 18STCV09743, Date: 2023-03-16 Tentative Ruling

Case Number: 18STCV09743    Hearing Date: March 16, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Adebola Kannike (“Plaintiff”) propounded request for admissions (“RFAs”), set one, on Defendant Yan Xu (“Defendant”) on April 13, 2022.  Plaintiff provides that on May 13, 2022, Defendant served unverified responses to the RFAs, but as of the filing of this motion, Defendant had not served verified responses.  Plaintiff therefore sought an order deeming the RFAs admitted and imposing sanctions.

            On February 28, 2023, Defendant filed an opposition to the motion to deem RFAs admitted.  Defendant asserts that he timely served objections to the RFAs on May 13, 2022, and that he served a verification for the RFAs concerning Defendant’s substantive responses.  Defendant argues that because the May 13, 2022 responses contained both objections and fact-specific responses, Defendant did not waive the right to object to the RFAs.  Further, Defense counsel provides that verified responses were not provided earlier because defense counsel had difficulty contacting Defendant. 

            In reply, Plaintiff argues that Defendant waived any objections by failing to serve timely responses, and that Plaintiff is entitled to an order deeming the RFAs admitted as a result. 

            Plaintiff is incorrect.  Plaintiff does not dispute that Defendant served unverified responses on or about May 13, 2022, with responses being due on May 16, 2022.  Defendant’s responses to the RFAs consist of “hybrid response[s] containing objections and fact-specific responses.”  (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.)

[T]here is no need to verify that portion of the response containing the objections. Thus, if the response is served within the statutory time period, that portion of the response must be considered timely notwithstanding the lack of verification. The omission of the verification in the portion of the response containing fact-specific responses merely renders that portion of the response untimely and therefore only creates a right to move for orders and sanctions … as to those responses but does not result in a waiver of the objections made.

(Id. at 657-58 [footnotes omitted].) 

            Accordingly, Defendant did not waive the objections by failing to serve verifications with the responses.  Rather, Plaintiff can move for an order as to the portion of the responses containing a fact-specific response.  In this regard, the unverified responses were tantamount to no response at all.  (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1348.)  Nonetheless, Defendant has now provided verifications to the RFAs. 

Thus, the Court finds that the motion deem RFAs, set one, admitted against Defendant is moot in light of the verifications served on Plaintiff prior to the hearing.  (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.)

The sole remaining issue is whether to impose sanctions.  “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”  (CCP § 2033.280(c).)  However, Plaintiff failed to identify “every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought” in the notice of motion.  (CCP § 2023.040.) 

Therefore, no sanctions are imposed.

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 16^th day of March 2023