Judge: Robert B. Broadbelt, Case: 23STCV29273, Date: 2024-06-27 Tentative Ruling

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Case Number: 23STCV29273    Hearing Date: June 27, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Dulce Garcia

RESPONDING PARTY:       Defendant Mercedes-Benz USA, LLC

Motion for Order Deeming Truth of Matters Admitted in Requests for Admission

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

DISCUSSION

Plaintiff Dulce Garcia (“Plaintiff”) moves the court for an order (1) deeming the truth of the matters set forth in Plaintiff’s Requests for Admission, served on defendant Mercedes-Benz USA, LLC (“Defendant”), admitted, and (2) awarding monetary sanctions in favor of Plaintiff and against Defendant in the amount of $2,904.

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, before the hearing on the motion, a proposed response that is in substantial compliance with Code of Civil Procedure section 2033.220.¿ (Code Civ. Proc., § 2033.280, subds. (b), (c).)¿¿¿¿¿¿¿¿ 

As a threshold matter, the court notes that the parties dispute whether the subject discovery was served on Defendant at the correct email address.  The court finds that Plaintiff has not shown that they served the subject Requests for Admission at the correct electronic service address and therefore denies Plaintiff’s motion.

Plaintiff has submitted evidence establishing that they served counsel for Defendant with their Requests for Admission, Set One, by electronic service at the email addresses associated with individual attorneys Brian Hom, C. Brian Wagner, and Vanessa Dao.  (Serrano Decl., Ex. 1, Requests for Admission, pp. 7-8 [proof of service].)  Defendant has opposed this motion, asserting that service on these email addresses was improper.  (Opp., p. 4:3-4.)

In reply, Plaintiff argues that Defendant consented to electronic service at the email addresses for attorneys Brian Hom, C. Brian Wagner, and Vanessa Dao pursuant to California Rules of Court, rule 2.251 since Defendant’s answer manifested consent to receive service at those email addresses.  Specifically, Plaintiff contends that service was proper because (1) rule 2.251 provides that a party may indicate that the party agrees to accept electronic service by, inter alia, manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic service address with that consent for the purpose of receiving electronic service, and (2) Defendant, in filing its answer electronically, affirmatively consented to electronic service at the email addresses listed on its answer.  The court disagrees.

 First, the court acknowledges, as Plaintiff points out, that Code of Civil Procedure section 1010.6, subdivision (b)(2) states that “[a] person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transaction.”  However, subdivision (b) of that statute states that it “applies to mandatory electronic service.”  (Code Civ. Proc., § 1010.6, subd. (b)(1) [emphasis added].)  Plaintiff has not presented evidence or authority establishing that service of their Requests for Admission was required to be served by electronic service within the meaning of section 1010.6, subdivision (b).  (Ibid.)  Further, although the court notes that Plaintiff states that section 1010.6 provides that documents filed by represented parties in all limited, unlimited, and complex civil actions “must be filed electronically and [must] allow for service electronically,” Plaintiff did not cite the specific provision of that statute containing that language, and the court has not located that provision of section 1010.6.  (Reply, p. 4:25-26 [emphasis omitted].)

Second, the court finds that Plaintiff has not shown that Defendant manifested affirmative consent to service at the email addresses listed on Defendant’s answer pursuant to California Rules of Court, rule 2.251, subdivision (b)(1)(B).  (Reply, p. 5:17-28.)

“A party or other person indicates that the party or other person agrees to accept electronic service by: [¶¶] (B) Manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic service address with that consent for the purpose of receiving electronic service.  A party or other person may manifest affirmative consent by serving notice of consent to all parties and other persons and either: [¶] (i) Agreeing to the terms of service with an electronic filing provider, which clearly states that agreement constitutes consent to receive electronic service; or [¶] (ii) Filing Consent to Electronic Service and Notice of Electronic Service Address (form EFS-005-CV).”  (Cal. Rules of Ct., rule 2.251, subd. (b)(1)(B).)

The court acknowledges that Defendant electronically filed its answer on December 19, 2023, on which Defendant listed the email addresses of its counsel.  (Answer filed Dec. 19, 2023, p. 1:1-6.)  However, Plaintiff has not cited authority establishing that Defendant, by electronically filing its answer, manifested affirmative consent to receive electronic service at those email addresses.  As set forth above, a party may manifest affirmative consent “by serving notice of consent to all parties and other persons and either” taking one of two actions.  (Cal. Rules of Ct., rule 2.551, subd. (b)(1)(B) [emphasis added].)  Plaintiff did not submit evidence showing that Defendant (1) “serv[ed] [a] notice of consent” on Plaintiff, and (2) either (i) agreed to the terms of service with an electronic filing service provider clearly stating that agreement thereto constitutes consent to receive electronic service (rule 2.251, subdivision (b)(1)(B)(i)), or (ii) filed a Consent to Electronic Service and Notice of Electronic Service Address on form EFS-005-CV (rule 2.251, subdivision (b)(1)(B)(ii)).  Moreover, there does not appear to be such a notice of consent filed with the court.

Thus, the court finds that Plaintiff has not shown that they properly served Defendant with the subject Requests for Admission on Defendant at the correct email address for electronic service.  The court therefore denies Plaintiff’s motion.

ORDER

            The court denies plaintiff Dulce Garcia’s motion for order deeming truth of matters admitted in requests for admission.

            The court orders defendant Mercedes-Benza USA, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  June 27, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court