Judge: Peter A. Hernandez, Case: 21PSCV00808, Date: 2022-09-06 Tentative Ruling

Case Number: 21PSCV00808    Hearing Date: September 6, 2022    Dept: O

Plaintiff Malissa Murillo’s Motion for an Order that the Truth of All Matters Specified in Plaintiff’s First Set of Requests for Admission be Deemed Admitted Against Defendant Anakin Mark Privitera is GRANTED. Pursuant to CCP § 2033.280, subdivision (b), the court orders that the truth of all specified matters in the Requests for Admissions, Set One, propounded by Plaintiff to Defendant Anakin Mark Privitera is deemed admitted. Sanctions are awarded in the reduced amount of $511.65 and are payable within 30 days of the date of the notice of ruling.

Background    

Plaintiff Malissa Murillo (“Plaintiff”) alleges as follows:

Plaintiff worked for Defendants Dr. Privitera’s Holistic Clinic (“Clinic”), Alternative Endeavors, Inc. (“Endeavors”), Anakin Mark Privitera (“Privitera””) (collectively, “Defendants”) as an office assistant at Clinic, first in the fall of 2019-early 2020 and again from August 2021-September 9, 2021. Privitera made repeatedly lewd and vulgar comments in Plaintiff’s presence and made sexual advances to her. 

On October 5, 2021, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-40 for:

1.               Discrimination Based on Sexual Harassment in Violation of FEHA

2.               Failure to Timely Pay Wages Owed 

On December 23, 2021, Endeavors’ default was entered. On April 18, 2022, Clinic’s default was entered.

A Case Management Conference is set for October 17, 2022. 

Legal Standard

A response to requests for admission is due 30 days after service. (Code Civ. Proc., § 2033.250, subd. (a).) 

“If a party to whom requests for admission are directed fails to serve a timely response, . . . (b)

The requesting 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 make this order, 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. It is mandatory

that the court impose a monetary sanction . . . 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).)

Discussion

Plaintiff moves the court for an order that the truth of all specified matters set forth in Plaintiff’s

Requests for Admission, Set No. One, propounded to Privitera be deemed admitted. Plaintiff also

seeks monetary sanctions against Privitera and his counsel, jointly and severally, in the amount

of $1,661.65.

On June 1, 2022, Plaintiff electronically served the subject discovery on Privitera. (Byrnes Decl., ¶¶ 3 and 4, Exhs. 1 and 2.) Privitera’s responses were due on or before July 6, 2022. (Id., ¶ 9.) Privitera did not provide responses by July 6, 2022, nor has he provided responses as of the August 10, 2022 date of counsel’s declaration. (Id., ¶ 10.) Privitera never requested an extension of time within which to provide responses, nor was an extension given. (Id., ¶ 12.) Privitera has not sought or obtained a protective order. (Id., ¶ 11.)

The motion is granted. It is unopposed. Pursuant to Code of Civil Procedure § 2033.280, subdivision (b), the court orders that the truth of all specified matters in the Requests for Admissions, Set One, propounded by Xu to Chen is deemed admitted.

Sanctions

Again, Plaintiff seeks sanctions against Privitera and his counsel, jointly and severally, in the amount of $1,661.65 [calculated as follows: 3 hours preparing motion, plus 1 hour reviewing opposition, preparing reply, and attending hearing at $400.00/hour, plus $61.65 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with Plaintiffs’ opposition motion is $511.65 (i.e., 1.5 hours at $300.00/hour, plus $61.65 filing fee/costs). Sanctions are payable within 30 days of the date of the notice of ruling.