Judge: Serena R. Murillo, Case: 21STCV34685, Date: 2023-09-27 Tentative Ruling

Case Number: 21STCV34685    Hearing Date: September 27, 2023    Dept: 31

TENTATIVE

Plaintiff’s motion to have matters in requests for admissions deemed admitted and request for sanctions are both DENIED.

Legal Standard

“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted…. The Court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect…. (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (CCP section 2033.280(b)-(c).)

Sanctions

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true.  (Code Civ. Proc. Section 2033.280(c).) 

Under CCP section 2023.030(a), “[t]he 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 any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code Civ. Proc. § 2023.010.) 

Discussion

On May 17, 2023, Plaintiff propounded upon Defendant, Request for Admissions, Set Two. (Exh. A.) Responses were due by June 18, 2023. To date, no responses to the discovery were provided.

In opposition, Defendant argues that Defendant’s prior counsel passed away on May 28, 2023. (Ingman Decl., ¶ 2.) Defendant also argues that the Motion fails to include proof that service of the discovery was effectuated on May 17 (or any day) or how such service was effectuated or on whom. On July 27, 2023, Defendant’s current counsel informed Plaintiff’s counsel that Mr. Nesbitt had passed away, and that she would substitute in as counsel. (Id., ¶ 6.) Since the substitution, Plaintiff did not re-serve the Request for Admission, Set Two, or even re-serve the Motion. Rather, Counsel learned that the Motion was pending from the docket. (Id., ¶ 7.) Upon learning of the Motion, Counsel conveyed the requests to Defendant, and Defendant provided responses. (Id., ¶ 7.)

The Court finds the motion cannot be granted as there is no proof of service showing that the requests for admission were ever served on Defendant. While Plaintiff’s counsel argues he attaches the proof of service to the reply, the proof of service attached is for the motion, and not the discovery. Thus, the motion and the request for sanctions is DENIED. In any event, the motion appears to be moot as responses were served.

Conclusion

Accordingly, Plaintiff’s motion to have matters in requests for admissions deemed admitted and request for sanctions are both DENIED.

Moving party is ordered to give notice.