Judge Ralph C. Hofer, Case Number: 24NNCV00550, Date: 2025-01-31 Tentative Ruling

Under CCP § 2033.280 (a), a party who fails to serve a timely response to requests for admissions “waives any objection to the requests, including one based on privilege or on the protection for work product….” 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 § 2033.280(b). The Code specifies that, “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.” CCP § 2033.280(c).

In this case, the responding party has opposed the motion, and indicates that verified responses to the subject requests for admissions containing substantive responses were served on January 16, 2025, prior to the hearing on the motion. The responses are attached to the motion. [Coyle Decl., para. 5, Ex. D]. The Court has reviewed the responses and finds they are verified and are in substantial compliance with CCP section 2033.220. The motion accordingly is denied.

To the extent plaintiff may object that the responses are insufficient, plaintiff is free to file a motion to compel further responses, if appropriate, after engaging in the required meet and confer, and submitting an appropriate separate statement.

To the extent defendant appears to argue in the opposition that defendant should not be deemed to have waived rights, such as to object to the discovery, by his untimely responses, as set forth in the opposition, under statute such relief may be granted by the court only “on motion,” when the request for such relief in opposition to a motion is not a proper noticed motion. See CCP section 2033.290 (a). The court will not consider the request for relief made in the opposition.

“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 § 2023.010 provides that misuses of the discovery process include: “(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).

“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.”

In this case, defendant failed to timely respond to an authorized method of discovery and made this motion necessary. Propounding party has submitted evidence showing that propounding party has incurred expenses as a result of the conduct.

The opposition argues that the failure to timely file responses was due to plaintiff during the period from September 27, 2024 through November of 2024, serving defense counsel with discovery and correspondence only at counsel’s designated service email address, and not at defense counsel Marshall Coyle’s email address or that of the paralegal at the time.

Defendant indicates that while defendant acknowledges that plaintiff’s method of delivery was technically correct under the law, plaintiff should have used best efforts to ensure their correspondence was being received by picking up the phone, so that this failure to ensure communications were being received substantially contributed to the responses being untimely. This argument is somewhat undermined by the submission with the moving papers of an email a paralegal at defense counsel’s law firm acknowledging a unilateral extension of time offered by counsel for plaintiff. That email states, “Dear Counsel, Thank you for your email regarding our discovery responses. We apologize for the oversight in our response date. We will ensure that our responses are sent by on or before November 7, 2024.” [Borisov Decl., Ex. A]. No responses were served by that date, and this motion was not filed until November 26, 2024, more than two weeks after the acknowledged deadline.

Plaintiff here appropriately served documents to the address of record, and since no responses were served, was under no statutory obligation to meet and confer before filing this motion, but actually did so, offering an extension of time, which was acknowledged before the extension expired.

As set forth above, with respect to Requests for Admissions, CCP section 2033.280(c) provides for mandatory 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 admissions necessitated this motion.”).

It is clear that counsel for defendant, which is now pleading mistake, surprise or excusable neglect, engaged in conduct which necessitated this motion by failure to tend to the communications sent to counsel’s designated service address, and by counsel’s office acknowledging an extension of time, indicating that responses would be served by November 7, 2024, but then failing to serve the discovery, or evidently to again acknowledge the outstanding discover until after this motion was filed. Sanctions accordingly must be awarded.

Plaintiff requests $2,100 in sanctions. Defendant argues that these are high, as plaintiff drafted four identical motions to compel interrogatories, requests for production of documents and requests for admissions. It does seem that under the circumstances three hours at $350 per hour to prepare this rather straightforward motion may be a bit high. One hour at $350 per hour is also sought to prepare a reply, when the motion will be denied because responses have since been served, so the reply should not be complicated. Two hours are sought to prepare for and participate in the hearing, when a remote appearance is an option. The time will be reduced accordingly as follows : 3 attorney hours at $350.00 per hour for a total of $1,050.00 attorney fees.

However, monetary sanctions requested by the moving party are awarded pursuant to CCP § 2033.280(c) (“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”).

Monetary sanctions requested by moving party: 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 the pending motion is $1,050.00 ( 3 hours @ $350/hour) [6 hours requested] [Amount Requested $2,100], which sum is to be awarded in favor of plaintiff Tereza Abrahamyan and against defendant German Mauricio Lopez Carillo, and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a); CRC Rule 3.1348(a).

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