Judge Ralph C. Hofer, Case Number: 23GDCV01737, Date: 2024-10-18 Tentative Ruling

DUE TO THE COURT’S
SCHEDULING ISSUES, THE CALENDAR WILL START AT 8:30 A.M. AND WILL RECESS AT 9:30
A.M. WHATEVER MATTERS HAVE NOT BEEN CALLED WILL
TRAIL TO THE 1:30 P.M.

TENTATIVE RULING

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions, “waives any objection to the requests.” In addition, the requesting party may move for an order that “the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....” CCP Section 2033.280(b). The code specifies that “The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with section 2033.220.” CCP section 2033.280(c).

In this case, the responding party has opposed the motion, and indicates that verified responses to the subject requests for admissions were served on September 12, 2024, prior to the hearing on the motion. The responses are attached to the motion. [Simonian Decl., para. 13, Ex. 4]. The Court has reviewed the responses and finds they are verified and are in substantial compliance with section 2033.220. The motion accordingly is denied.

To the extent the responses contain objections, which plaintiff argues have been waived by the failure to timely respond, plaintiff is free to file a motion to compel further responses on this ground, if appropriate, after engaging in the required meet and confer, and submitting an appropriate separate statement. The court notes that defendant has argued in the opposition that the requests for admissions were not properly served on defendant until September 10, 2024, the same date the motion to deem the admissions admitted was filed. [Simonian Decl., paras. 11, 12]. The opposition also points out that the moving papers do not include a proof of service confirming when the requests for admissions were in fact served on defendant, so that it could be determined if in fact the responses were overdue by the time the motion was filed. [See Megerdomian Decl., para. 2, Ex. A].

“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 admissions necessitated this motion.”

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP section 2023.030(a), “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP §2023.030(a).

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

With respect to the request for sanctions by plaintiff, the moving party, as noted above, and as argued in the opposition, plaintiff has failed to appropriately request sanctions in the notice of motion.

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought and specify the type of sanction sought.”

The notice of motion does not request sanctions at all, so does not identify every person, party, or attorney against whom sanctions are sought and does not specify the type of sanction sought. This situation gives rise to due process concerns. Sanctions requested by plaintiff will accordingly be denied.

With respect to the request for sanctions by defendant, as noted above, in connection with requests for admissions, mandatory sanctions are provided by statute, but only against the party whose failure to timely respond necessitated the motion. Defendant seeks sanctions pursuant to CCP section 2030.300 (c), which does not apply to requests for admissions, but to document demands. The caption of the opposition confusingly seeks sanctions against “Bradley S Wallace,” when such a person does not appear to be a party or counsel of record in this matter. The request for sanctions in the opposition accordingly suffers from notice irregularities and due process concerns. Hence, sanctions requested in the opposition are denied.

Monetary sanctions requested by the moving party are DENIED. The Court notes there was no request within the notice of motion for any award of sanctions, and no specification is made in the notice of any party or person against whom sanctions are sought or the type of sanction sought. As such, this Court may not grant any sanctions which have been requested outside the notice of motion. See CCP §2023.040.

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