Judge: Stephen Morgan, Case: 21AVCV00432, Date: 2022-08-16 Tentative Ruling
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Case Number: 21AVCV00432 Hearing Date: August 16, 2022 Dept: A14
Background
This is a motor vehicle – personal injury action. Plaintiff Juan Carlos Pacheco Baez (“Plaintiff”) alleges that on or about June 02, 2019 at SR-14, north of Avenue O in Palmdale, CA, Defendant Dale Richard Gerhart (“Gerhart”) was operating, with permission, a vehicle owned by Defendants Michael Rodriguez (“Rodriguez”) and 3 Filly’s Trucking, LLC (“3 Filly’s Trucking”) and so operated said motor vehicles so as to proximately cause injuries and damages to Plaintiff.
On May 27, 2021, Plaintiff filed his Complaint, alleging one cause of action for Personal Injury – Motor Vehicle.
On January 19, 2021, 3 Filly’s Trucking filed its Answer.
On August 13, 2021, Gerhart and Rodriguez filed their Answer.
On April 11, 2022, 3 Filly’s Trucking was dismissed.
On July 20, 2022, Gerhart filed two motions: (1) Motion to Compel Answers to Defendant Richard Gerhart’s Form Interrogatories, Set Two, and Request for Sanctions Against Plaintiff and Plaintiff’s Counsel (“Motion to Compel”); and (2) Motion for Deemed Admissions.
No Opposition has been filed. All opposition papers must be filed and served at least nine court days before the hearing. (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for August 16, 2022. As such, an Opposition was due on August 03, 2022. Should an Opposition be filed, it is now untimely.
On August 08, 2022, Gerhart filed a Reply/Notice of Non-Receipt of Opposition for both the Motion to Compel and the Motion for Deemed Admissions.
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Analysis
Standard for Compelling Interrogatories – Cal. Code Civ. Proc. § 2030.290 provides that a party may bring a motion to compel responses to interrogatories, where the responding party failed to serve a timely response. Unless otherwise agreed, the responding party is required to serve response within 30 days after service of the discovery demand for production documents. (Cal. Code Civ. Proc. §2030.290(b).) If the responding party fails to serve a timely response, the party “waives any objection to the demand, including one based on privilege or on the protection for work product . . .” (Cal. Code Civ. Proc. §2030.290(a).) The requesting party need not demonstrate “good cause to compel responses, nor that it satisfied the “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 143 Cal.App.4th 390, 404.)
Responses to interrogatories are due within 30 days after service of interrogatories. (Cal. Code Civ. Proc. § 2030.260.) “The party propounding interrogatories and the responding party may agree to extend the time for service of a response to a set of interrogatories, or to particular interrogatories in a set, to a date beyond that provided in Section 2030.260.” (Cal. Code Civ. Proc. § 2030.270(a).) While this agreement may be informal, it must be confirmed in writing. (Cal. Code Civ. Proc. § 2030.270(b).)
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Standard for Deeming Admissions Admitted – Where there has been no timely response to a request for admission under Cal. Code Civ. Proc. § 2033.010, the propounding 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, as well as for a monetary sanction. (Cal. Code Civ. Proc. § 2033.280(b).) Cal. Code Civ. Proc. § 2033.280(c) states, in relevant part: “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. (Cal. Code Civ. Proc. § 2033.280(c).)
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Discussion
Application –
Motion to Compel
Gerhart propounded Plaintiff with its Form Interrogatories, Set Two, on April 25, 2022, seeking information related to the allegations in this action. (Motion, Decl. Derek T. Lawson ¶ 4 and Exh. 1.) Defense counsel represents that responses were due May 27, 2022 as the Form Interrogatories, Set Two, were sent via electronic transmission. (Id., Decl. Derek T. Lawson ¶ 5.) To date, Plaintiff has not served verified responses to Defendant’s form interrogatories. (Id., Decl. Derek T. Lawson ¶ 7.)
The Court highlights that, despite defense counsel’s representation of electronic transmission, the proof of service on the Form Interrogatories states that it was sent via fax transmission. (Exh. 1.) Under both California Rules of Court and Cal. Code Civ. Proc., the parties must agree to service by fax. (See Cal. Rules of Court, Rule 2.306(a)(1) [“Agreement of parties required Service by fax transmission is permitted only if the parties agree and a written confirmation of that agreement is made.”]; see also Cal. Code Civ. Proc. § 1013(e) [“Service by facsimile transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made. . .”].)
Here, no evidence is presented that an agreement was made between the parties to allow service by fax.
Accordingly, the Court DENIES the Motion to Compel.
Motion for Deemed Admissions
Cal. Code Civ. Proc. § 2033.250 provides:
“Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.”
(Cal. Code Civ. Proc. § 2033.250(a).)
Defendant served his Requests for Admission (“RFAs”) on April 25, 2022 to Plaintiff’s counsel’s email address of record. Thus, responses were due May 27, 2022. (Motion for Deemed Admissions, Exh. 1.) Defendants’ counsel, Derek T. Lawson (“Lawson”), has attached his attempt to contact Plaintiff via email on June 09, 2022 (Id., Exh. 2) and a declaration stating under penalty of perjury that Plaintiff neither responded to the RFAs nor requested an extension of time to respond. (Id., Decl. Derek T. Lawson ¶¶ 4-7.) The evidence provided by Defendant is sufficient to show that Plaintiff failed to timely respond to Defendant’s properly served RFAs. Defendant demonstrates that it propounded a set of requests for admission on Plaintiff and he did not respond as the discovery requests became due.
Plaintiff does not present any evidence otherwise.
Accordingly, the Motion for Deemed Admissions is GRANTED.
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Sanctions
Defendant requests sanctions against Plaintiff and/or his counsel in the amount of $742.50 [3.5 hrs @ $195.00/hr + $60.00 filing fee] for the Motion to Compel and $742.50 [3.5 hrs @ $195.00/hr + $60.00 filing fee] for the Motion for Deemed Admissions to recover the costs associated with undertaking these motions.
“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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.” (Cal. Code Civ. Proc. § 2030.290(c).)
“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010 ) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Cal. Code Civ. Proc. §2033.280(c).)
Here, regarding the Motion to Compel, the Court finds that sanctions imposed on a party that did not agree to service by fax would be unjust in light of the requirements set by Cal. Rules of Court and Cal. Code Civ. Proc. Regarding the Motion for Deemed Admissions, Plaintiff’s failure to serve a timely response necessitated this motion and the Court must impose sanctions under the relevant statute.
Accordingly, sanctions are DENIED for the Motion to Compel and GRANTED for the Motion for Deemed Admissions. Plaintiff and his counsel, collectively, are ordered to pay $742.50.
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Conclusion
Defendant Dale Richard Gerhart’s Motion to Compel Answers to Defendant Richard Gerhart’s Form Interrogatories, Set Two, and Request for Sanctions Against Plaintiff and Plaintiff’s Counsel is DENIED.
Defendant Dale Richard Gerhart’s Motion for Deemed Admissions is GRANTED.
A sanction of $742.50 pursuant to Cal. Code Civ. Proc. §§ 2033.280(c) and is imposed on Plaintiff and his counsel.