Judge: Robert B. Broadbelt, Case: 23STCV16037, Date: 2024-08-06 Tentative Ruling

Case Number: 23STCV16037    Hearing Date: August 6, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Art Jr Cervera          

RESPONDING PARTY:       Defendant 24 Hour Fitness

Motion for Order Deeming Admitted Truth of Facts and Genuineness of Documents

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Art Jr Cervera (“Plaintiff”) moves the court for an order (1) deeming admitted the truth of the matters and genuineness of the documents specified in Plaintiff’s Requests for Admission, Set One, directed to defendant 24 Hour Fitness (“Defendant”), and (2) awarding monetary sanctions in favor of Plaintiff and against Defendant in the amount of $1,000.

If a party to whom requests for admission are directed fails to serve a timely response, the court shall, upon motion by the propounding party, order that the matters specified in the requests be deemed admitted unless the court finds that the party to whom the requests for admission have been directed has served substantially compliant responses before the hearing on the motion.¿ (Code Civ. Proc., § 2033.280, subds. (b), (c).)¿¿¿¿¿¿ 

The court finds that Plaintiff has not shown that he served Defendant with the Requests for Admission that are the subject of this motion.

Plaintiff has asserted, in his declaration, that he served this discovery on Defendant on December 4, 2023 “by personal service  by mail.”  (Cervera Decl., ¶ 2.)  However, despite stating that attached to the motion as Exhibit 2 is the proof of service, Plaintiff has not filed a proof of service in support of that assertion.  (Mot., p. 7.)  Instead, Plaintiff has merely filed copies of Requests for Admission, Special Interrogatories, and Requests for Production directed to (but not served on) Defendant.  (Mot., pp. 10-23.)  Similarly, although Plaintiff represents in his reply papers that a “[p]roof of service for these discovery requests is attached hereto as Exhibit B[,]” Plaintiff did not attach a proof of service establishing that he served Defendant with the subject Requests for Admission.  (Reply, p. 3:1-4.)  Further, Defendant has presented evidence establishing that it was never served with the Requests for Admission.  (Malloy Decl., ¶ 4 [“after a reasonable and diligent search of its records, Defendant’s counsel has concluded it never received the allegedly propounded discovery”].)

Thus, the court finds that Plaintiff has not met his burden to show that he properly served Defendant with his Requests for Admission, Set One, and therefore denies Plaintiff’s motion.

ORDER

            The court denies plaintiff Art Jr Cervera’s motion for order deeming admitted truth of facts and genuineness of documents.

            The court orders defendant 24 Hour Fitness to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 6, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court