Judge Ronald F. Frank, Case Number: 23TRCV01101, Date: 2023-12-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV01101, Date: 2023-12-01 Tentative Ruling

Case Number: 23TRCV01101 Hearing Date: December 1, 2023 Dept: 8

Tentative Ruling

HEARING DATE: December 1, 2023¿

CASE NUMBER: 23TRCV01101

CASE NAME: Manuel Serrano; Bertha Serrano v. Tracy Dermesropian, et al.

MOVING PARTY: Plaintiffs, Manuel Serrano and Bertha Serrano

RESPONDING PARTY: Defendants, Steve Preda and Tracy Dermesropian

TRIAL DATE: Not Set.

MOTION:¿ (1) Motion for an Order that Requests be Deemed Admitted Against

(2) Request for Sanctions

Tentative Rulings: (1) Motion for an Order that Requests be Deemed Admitted Against is Mooted by the service of verified responses to the 20 RFAs at issue prior to the hearing

(2) Request for Sanctions is GRANTED in the amount of $1,500, payable to Plaintiffs’ counsel within 30 days. The sanctions are jointly payable by Defendant Preda and his counsel.

I. BACKGROUND¿

A. Factual¿

On April 10, 2023, Plaintiffs, Manuel Serrano and Bertha Serrano (collectively “Plaintiffs”) filed a Complaint against Defendants, Tracy Dermesropian, Steve Preda, and DOES 1 through 25. The Complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence.

Plaintiffs’ motion indicates that they served Requests for Admission, Set One upon Defendant on May 31, 2023. Plaintiffs further note that after multiple extensions of time to respond, Defendant’s last day to serve responses to Plaintiffs’ Requests was September 5, 2023. On September 15, 2023, Plaintiff’ counsel emailed Defendant’s counsel regarding the fact that responses had not been received yet. Plaintiffs’ counsel notes that Defendant’s counsel stated they were waiting for verifications and would send responses by the end of that week. However, Plaintiffs contend that more than one month later, Defendant still had not served verified responses, and notified Defendant that if verified responses were not served by October 31, 2023, Plaintiff would be filing a Motion to Deem Requests for Admission Admitted. As of the date of Plaintiffs’ filing, the motion asserts that Plaintiffs still had not received responses. As such, Plaintiffs have brought this motion to Deem Requests for Admission as Admitted.

B. Procedural

On November 2, 2023, Plaintiffs filed this Motion to Deem the Truth of the Matters Specified in that Requests for Admission, Set One, Admitted. On November 16, 2023, Defendants’ counsel filed a “Declaration in Reply”. On November 22, 2023, Plaintiffs filed a reply brief.

¿II. ANALYSIS

A. Legal Standard

Under Code of Civil Procedure § 2033.280(c), the court shall make the order deeming the truth of the matters admitted unless the responding party serves before the hearing a proposed response to the requests for admission that is in substantial compliance with Code Civ. Proc § 2033.220. Code of Civil Procedure § 2033.220 requires that each answer either admits, denies or specifies that the responding party lacks sufficient information or knowledge. As stated in Demyer v. Costa Mesa Mobile Home Estates, the moving party is not required to meet and confer before bringing this action. (Demyer v. Costa Mesa Mobile Home Estates, 36 Cal.App.4th 393, 395.)¿¿

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)¿¿ Sanctions are mandatory where, as here, a party’s failure to serve timely responses to RFAs necessitated a motion to have the admission deemed to be admitted, even where the responses are served weeks before the hearing but after the motion was filed. (Id. § 2033.280(c).)

B. Discussion

Here, this Court notes that in lieu of an opposition, Defendants’ counsel filed a declaration noting that his office served substantive and verified responses by Defendant Steve Preda on November 14, 2023. (Declaration of Alan C. Arnall (“Arnall Decl.”), ¶ 3.) The declaration attached the verified responses to the 20 RFAs at issue, and no objections were asserted. Arnall argues that this Court should DENY the motion because he worked diligently in effort to get the client to assist in preparing the responses so that they could be served timely and prior to the filing of the present motion, but was unable to until after the filing. (Arnall Decl., ¶ 4.) Although the Court understands that it may have been difficult to prepare the responses in this case, with a client living in another state, that is insufficient excuse given the numerous extensions Plaintiffs granted here. These requests were propounded on May 31, 2023, and it was not until over a week after this motion was filed that counsel for Defendants served responses. Service of the verified responses, even though tardily, moots the motion to deem matters admitted but does not moot the issue of monetary sanctions.

C. Sanctions

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone because of that conduct. Misuse of discovery includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc. §¿2023.010(d)).

Here, Plaintiffs have requested sanctions in the amount of $1,804 be granted against Defendant Steve Preda and/or his attorneys. This number is based on Plaintiffs’ counsel’s declaration, noting that the moving papers required three (3) hours of work at a rate of $300 per hour; and anticipated one (1) hour to evaluate the opposition papers and prepare a reply brief; an anticipated 1.5 hours to remotely appear and argue the motion; the CourtCall fee of $94; and the motion filing fee of $60. This Court finds that the hours spent on the moving and reply brief, as well as the hourly rate of Plaintiffs’ counsel are reasonable. However, the Court does not typically grant the $94 CourtCall fee as that is a choice of Plaintiffs’ counsel to appear remotely.

Sanctions are mandatory where a party’s failure to serve timely responses to RFAs necessitated a motion to have the admission deemed to be admitted. (Code Civ. Proc. § 2033.280(c).) The timeline here makes it readily apparent that it was only the filing of the motion that energized the defendant into action to provide a verification and to confirm the denials or inability to admit or deny the 20 RFAs at issue. Failing to respond timely to an authorized method of discovery is a misuse of the discovery process. (Id. section 2023.010, subd. (d).)¿¿ On the record presented, the Court awards $1,500 in monetary sanctions payable to Plaintiffs’ counsel within 30 days, jointly payable by Defendant Preda and his counsel. The Court acknowledges defense counsel’s declaration but with no declaration from Mr. Preda accepting responsibility, the Court will leave allocation of the payment between attorney and client.