Judge Ralph C. Hofer, Case EC067254 2022-08-19 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 without objections were served on July 20, 2022, prior to the hearing on the motion, and that the responses are attached to the motion. [Rosenberger Decl., para. 8, Ex. 5]. 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.

“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party who files a motion to compel, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

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 motion was not necessary, as defendant had promised to serve responses only days after receiving meet and confer correspondence and first discovering the discovery had been earlier served by email. Defendant argues that service of discovery by email which made no reference to defendant Bramzon delayed defendant, and the instant motion had no impact on the contents or timing of the responses. Defendant evidently offered to serve unverified responses by July 13, 2022, the day after the motion was filed, with verifications to be served the following week when defendant Bramzon returned from vacation. [Rosenberger Decl., para. 6, Ex. 3].

Plaintiff argues that during the course of meet and confer, plaintiff agreed that defendant’s counsel could have more time to prepare and verify the responses if counsel would confirm that defendant would provide substantive responses without objections, but defendant’s counsel did not confirm or respond to that correspondence within the time requested, and this motion was filed. [Roshanian Decl., paras. 7, 8, Ex. C].

Under the circumstances, and particularly considering the initial failure to timely respond, the widespread use of email service during the pandemic, and the failure of defendant’s counsel to timely confirm that the responses would be substantive and without objection, when they ultimately were, defendant has failed to show that the motion was not necessitated by defendant, and therefore the motion is subject to mandatory sanctions under CCP section 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 admissions necessitated this motion.”). Sanctions accordingly must be awarded.

The sanctions requested are $3,660. These appear high for a motion of this nature, and the opposition points out that a motion very similar to this one was filed in the matter by counsel for plaintiff against defendant Schulte on February 15, 2022. [Rosenberger Decl., para. 7, Ex. 4]. The motion does look very similar. The file shows that on April 1, 2022, that motion was granted, and sanctions awarded in favor of plaintiff Block in the sum of $1,660. It would appear that some of the 4 hours at $400 per hour spent preparing this motion may have been unnecessary if the previous motion was used as a template. In addition, since the motion has been rendered moot, the time to prepare a reply should be brief, and the sum sought of 3 hours at $400 per hour will be adjusted accordingly. Finally, the 2 hours requested to attend the hearing may be excessive if the hearing is attended by remote appearance. The sanctions are adjusted accordingly as follows: 3 hours to prepare the motion and ½ hour for the remote appearance for the hearing for a total of 3.5 hours at $600.00 per hour attorney rate for total attorneys’ fees of $1,400.00.

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”).

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 $1,400.00 (3.5 hours @ $400/hour) [9 hours requested] plus costs of $60 [Amount Requested $ 3,660], which sum is to be awarded in favor of plaintiff Dennis P. Block and against defendant Daniel Bramzon, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

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