Judge Ronald F. Frank, Case 19STCV32547 2023-03-28 Tentative Ruling

RESPONDING PARTY: (1) Defendant Heather Seyfert; (2) Defendant Jamie Lu Dominguez

MOTION:¿ (1) Motion to Deem Requests for Admission Set 1 to Defendant Heather Seyfert Admitted

(2) Motion to Deem Requests for Admission Set 1 to Defendant Jamie Lu Dominguez Admitted

Tentative Rulings: (1) DENIED as to Motion to Deem Requests for Admission Set 1 to Defendant Heather Seyfert

(2) DENIED as to Motion to Deem Requests for Admission Set 1 to Defendant Jamie Lu Dominguez Admitted

On approximately September 14, 2018, Plaintiff Erica H. Leventhal (“Plaintiff”) alleges that she was injured while undergoing physical therapy and that Defendants Physiotherapy Associates, Inc., Heather Seyfert (“Seyfert”), and Jamie Lu Dominguez (“Dominguez”)[1] are the cause of her injuries. Plaintiff filed this lawsuit on September 13, 2019, alleging causes of action for battery, fraud, and negligence. Plaintiff filed a First Amended Complaint on March 23, 2021, alleging causes of action for battery and negligence. Plaintiff then filed a Second Amended Complaint on March 8, 2023, alleging causes of action for battery (one against Physio and Seyfert, and a second against Physio and Dominguez), negligence, and deceit.

Plaintiff has filed two motions to deem requests for admission admitted, one against Seyfert and the other against Dominguez. Each motion will be addressed separately below.

Motion to Deem Requests for Admission Set 1 to Defendant Heather Seyfert Admitted

Plaintiff served Requests for Admission, Set 1 on Seyfert on November 4, 2022.[2] Plaintiff granted Seyfert multiple extensions to respond, and Seyfert served responses on February 3, 2023. Plaintiff filed this motion on February 24, 2023, contending that Seyfert’s responses are untimely because the verification is defective, among other things. Seyfert has opposed this motion. Plaintiff has replied.

Plaintiff did not meet and confer with Seyfert before filing this motion on the purported grounds that Seyfert’s responses were untimely because the verification was defective, among other things, and therefore no meet and confer was required.

A motion to deem admitted requests for admissions lies based upon a showing of failure to timely respond. (CCP §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.) As to motions to deem matters admitted, no meet and confer is required. (Demyer, 36 Cal.App.4th at p. 395.)

Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (CCP §2033.280(c).) “[A] motion to have admission requests deemed admitted may not be granted where the record establishes ... that (1) proposed responses to the requests have been served prior to the hearing on the motion and (2) such responses are in substantial compliance with the provisions of section 2033, subdivision (f)(1).” Tobin v. Oris (1992) 3 Cal. App. 4th 814, 828, overruled on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983 fn.12.) Courts evaluate tardy responses to requests for admissions, in toto, to determine whether they substantially comply with the code, and do not evaluate each individual response. (St. Mary v. Sup. Ct. (2013) 223 Cal.App.4th 762, 779-80.)

Plaintiff’s reply contains new declarations from her attorneys. These declarations appear to be attempting to introduce new evidence that was neither contained in Plaintiff’s moving papers nor provided to address evidence presented in Seyfert’s opposition. Thus, the Court declines to consider the new evidence presented in these declarations. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”])

The Court finds multiple problems with Plaintiff’s motion. First, Seyfert timely responded to Plaintiff’s Requests for Admission, Set 1. Plaintiff gave Seyfert until February 3, 2023 to provide her responses, and the evidence shows that she did provide verified responses on that date. (Leonardo Decl. ¶¶ 3-4, Ex. C.) If Seyfert had not provided a verification then there would be an argument that the responses were untimely. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [“Unsworn responses are tantamount to no responses at all.”]) However, Seyfert did provide verified responses. As such, there is no basis for a motion to deem these requests for admission admitted.

Second, Seyfert has presented sufficient evidence to show substantial compliance under Code of Civil Procedure section 2033.280(a). The record is clear that Seyfert served verified responses to Plaintiff well before this motion was made. Plaintiff’s sole basis for this motion was a few purported technical defects in Seyfert’s verification, which could easily and in fact have been addressed. (Solmayor Decl., Ex. 4.) Plaintiff’s contention regarding the “information and belief” language is without merit given that none of Seyfert’s responses indicate they are made on information and belief. (Leonardo Decl., Ex. C.) Plaintiff’s contention appear to lack good faith since Plaintiff herself made a verification for prior discovery responses using the same “information and belief” language. (Solmayor Decl., Ex. 1.) The purported lack of an original copy of Seyfert’s responses is not a particularly meaningful ground for a discovery motion either when Plaintiff herself served an electronic copy of the discovery requests at issue or where there is no indication that the responses are not what they purport to be. (Leonardo Decl., Ex. A.) Also, Seyfert’s objections would be preserved anyway because they were timely served. (See Food 4 Less Supermarkets, Inc. v. Sup. Ct. (Fletcher) (1995) 40 Cal.App.4th 651, 657.) The Court finds that Seyfert’s responses substantially comply with the requirements for responses to requests for admission.

Therefore, the Court will deny Plaintiff’s motion as to Seyfert. The Court further notes that no monetary sanctions were requested, and none are being awarded.

Motion to Deem Requests for Admission Set 1 to Defendant Jamie Lu Dominguez Admitted

Plaintiff served Requests for Admission, Set 1 on Dominguez on November 4, 2022. Dominguez served responses on December 27, 2022. Plaintiff filed this motion on March 2, 2023, contending that Dominguez’s responses are untimely because the verification is defective, among other things. Dominguez has opposed this motion. Plaintiff has replied.

Plaintiff attempted to meet and confer regarding Dominguez’s December 27, 2022 responses by sending a letter dated January 6, 2023, but received no response.

The Court notes that Plaintiff has not filed a proof of service for the moving papers for her motion against Dominguez and that there is no proof of service attached to the discovery requests at issue. Nevertheless, considering Dominguez has opposed the motion and made no objection regarding the proofs of service or lack thereof, the Court will conclude that service was made and proceed to analyzing the motion.

The Court again finds multiple problems with Plaintiff’s motion. First, Dominguez served verified responses to Plaintiff’s Requests for Admission, Set 1 on December 27, 2022. (Leonardo Decl., Ex. B.)[3] Plaintiff has not argued that December 27, 2022 was in and of itself past any response deadline, and December 26 was a court and postal holiday. The Opposition asserts that the extension of time elapsed on Christmas weekend, which would make December 27, 2022 the last date to serve responses. If Dominguez had failed to provide any verification then there would be an argument that the responses were untimely. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [“Unsworn responses are tantamount to no responses at all.”]) However, Dominguez did provide verified responses. As such, there is no basis for a motion to deem these requests for admission admitted.

Second, Dominguez has presented sufficient evidence to show substantial compliance under Code of Civil Procedure section 2033.280(a). Dominguez served verified responses to Plaintiff’s requests well before this motion was made. Plaintiff’s sole basis for this motion was a few purported technical defects in Dominguez’s verification, some of which are contradicted by the record or are otherwise unpersuasive. For example, contrary to Plaintiff’s motion, Dominguez’s declaration clearly states that it is signed under penalty of perjury under the laws of the State of California. (Leonardo Decl., Ex. B.)[4]

Moreover, the fact that Dominguez’s responses were an electronic copy emailed to Plaintiff’s counsel rather than a paper version with a wet sink signature sent by mail is an emphasis of form over substance, especially when electronic discovery, electronic service, and electronic filing and service are expressly authorized by statute and e-service is now the norm. (CCP § 1010.6; LASC First Amended General Order (5/3/2019).) It is also an argument not made in good faith, given that Plaintiff’s counsel electronically served original discovery requests to Seyfert’s attorneys in connection with the above-discussed motion. (Leonardo Decl., Ex. B.)[5] Plaintiff’s failure to include proofs of service with this motion, as noted above, appears to be an attempt to hide the fact that Plaintiff most likely served these discovery requests on Dominguez electronically and served this motion electronically as well. (See Yarvis Decl., ¶ 2.) If Plaintiff’s counsel uses electronic service for such matters, it only stands to reason that Dominguez’s counsel would do the same. Additionally, there is nothing to suggest here that Dominguez’s responses are not what they purport to be.

Furthermore, Plaintiff’s contention regarding the “information and belief” language is without merit given that, as with respect to the Seyfert RFA motion above, none of Dominguez’s responses indicate they are made on information and belief. (Leonardo Decl., Ex. B.)[6] Plaintiff’s contention is also in bad faith since Plaintiff herself made a verification for prior discovery responses using the same “information and belief” language, as evidenced in Plaintiff’s other motion against Seyfert discussed above. (Solmayor Decl., Ex. 1.) Additionally, Dominguez’s objections would be preserved anyway because they were timely served. (See Food 4 Less Supermarkets, Inc. v. Sup. Ct. (Fletcher) (1995) 40 Cal.App.4th 651, 657.)

The Court finds that Dominguez’s responses substantially comply with the requirements for responses to requests for admission. Therefore, the Court will deny Plaintiff’s motion as to Dominguez. As with the Seyfert motion, no monetary sanctions were requested and none are awarded.

The Court DENIES Plaintiff’s Motion to Deem Requests for Admission Set 1 to Defendant Heather Seyfert Admitted.

The Court DENIES Plaintiff’s Motion to Deem Requests for Admission Set 1 to Defendant Jamie Lu Dominguez Admitted.

Unless waived, notice of the Court’s ruling is to be given by Seyfert’s counsel.

[1] Plaintiff initially named other additional defendants to this action, but these are the current named parties as of Plaintiff’s Second Amended Complaint.

[2] The Court notes that the proof of service Plaintiff has provided for this particular set of discovery requests appear to have been for a different set of discovery requests served on Seyfert on January 5, 2021. (Leonardo Decl., Ex. B.) Seyfert has not commented on this or otherwise disputed November 4, 2022 as the date of service, so the Court will accept November 4, 2022 as the purported date of service.

[3] I.e., Leonardo’s declaration submitted in support of the motion to deem requests for admission admitted as to Dominguez.

[4] I.e., Leonardo’s declaration submitted in support of the motion to deem requests for admission admitted as to Dominguez.

[5] I.e., Leonardo’s declaration submitted in support of Plaintiff’s motion to deem requests for admission admitted as to Seyfert.

[6] I.e., Leonardo’s declaration submitted in support of this motion to deem requests for admission admitted as to Dominguez.