Judge: Stephen Morgan, Case: 21STCV35391, Date: 2023-04-25 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 21STCV35391    Hearing Date: April 25, 2023    Dept: A14

Background

This is a premises liability action. Plaintiff Maria De La Rosa (“Plaintiff”) alleges that on December 24, 2019 she was a customer shopping at Defendant Vallarta Supermarket (“Defendant”)’s premises located at 38118 47th St. E., Palmdale, CA 93552 and was in the checkout line waiting to pay for her food when she stepped on a sticky substance, causing her to lose her balance and fall to the ground, sustain bodily injuries and damages 

On September 27, 2021, Plaintiff filed her Complaint alleging two causes of action for General Negligence and Premises Liability.   

On October 25, 2021, Defendant filed its Answer.  

On August 29, 2022, counsel for Plaintiff, Scarlett Farrokh (“Farrokh”), filed a Notice of Death of Plaintiff and Request for Stay of Proceedings Pending Motion to Amend the Complaint for Wrongful Death, subsequently rejected as Plaintiff died of COVID-19. 

On September 06, 2022, Plaintiff filed an Amended Notice of Death and Request for Stay of Proceedings. 

On September 09, 2022, Farrokh notified the Court that a successor in interest was identified and would be substituted in shortly. The Court did not find good cause to issue a stay of the action.

On December 12, 2022, Farrokh filed a Motion to be Relieved as Counsel, subsequently granted.

On March 30, 2023, Defendant filed this Motion to Deem Requests for Admissions (“RFAs”) Admitted.

On April 04, 2023, the Court issued a Notice RE: Continuance of Hearing and Order resetting the hearing on this matter from April 24, 2023 to April 25, 2023.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) An Opposition was due by April 12, 2023. Should an Opposition be filed, it is now untimely.

On April 19, 2023, Defendant filed a Notice of Non-Opposition.

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Legal Standard

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 – Defendant moves to deem RFAs admitted against Plaintiff. Defendant states that on January 17, 2023, the Court appointed Armando Figueroa (“Figueroa”) as Plaintiff’s successor in interest.

Defendant does not cite to any exhibit nor does it provide evidence. The Court takes judicial notice of its records pursuant to Cal. Evid. Code § 452(d).  On January 17, 2023, Armando Figueroa was notified of the Motion to Be Relieved as Counsel and signed up to attend the hearing remotely via CourtConnect. (01/17/2023 Minute Order; 01/17/2023 Streamwrite Filings for CourtConnect.) Luz Figueroa, Armando’s daughter appeared. The Court inquired of Luz Figueroa. (01/17/2023 Minute Order.) Defense counsel, Kevin Terrence Dunbar (“Dunbar”), was provided with the Figueroa’s address, phone number, and email address in open court. Thus, as of January 17, 2023, Figueroa has proceeded with the case as Plaintiff’s successor in interest.

Defendant establishes that on January 17, 2023, Defendant served its RFAs, Set One, on Figueroa at the address he provided to the Court by mail (Exh. A). 30 days after service of the propounded RFAs was February 16, 2023. (See Cal. Code Civ. Proc. § 2033.010 [responses to RFAs due 30 days after service].) Dunbar followed up with Figueroa via email correspondence on March 01, 2023, (1) informing Figueroa that he had not responded to the propounded RFAs and (2) extending the deadline for RFA responses to March 15, 2023. (Decl. Dunbar ¶ 5, Exh. B.) The Court notes that Dunbar signed the Proof of Service for the propounded RFAs himself. An attorney may sign the proof service of a document as doing so neither violates the rules of court nor constitutes perjury. (See Brown v. Superior Court (2004) 116 Cal.App.4th 320, 328 [attorney is not a party to the action]; In re Marriage of Tushinsky (1988) 203 Cal.App.3d 136, 143 [same].) Defendant never received any responses or objections from Defendant. (Decl. Dunbar at ¶ 6.)

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. § 2033.010(a).)

The evidence provided by Defendant is sufficient to show that Plaintiff, through her successor in interests Figueroa, failed to timely respond to Defendant’s properly served RFAs.

Accordingly, the Court GRANTS Defendant’s Motion.

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       I.            Sanctions

Defendant requests sanctions in the amount of $808.91 in attorney’s fees and costs [4 hrs @ $185.00/hr + $61.65 filing fee] to recover the amount spent in filing this instant motion.

Cal. Code Civ. Proc. § 2033.280 provides, in relevant part:

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, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(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. 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(b)-(c).)

Defendant’s requested amount for sanctions takes into consideration 1.5 hours of “reviewing Plaintiff’s Opposition to this Motion, the preparation of any Reply thereto and attendance at the Court hearing.” (Decl. Dunbar at ¶ 11.) Plaintiff, through her successor in interest Figueroa, has not filed an Opposition. Accordingly, the Court imposes a sanction of $462.50 on Figueroa.

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Conclusion

Defendant Vallarta Food Enterprises, Inc.’s Motion to Deem Admissions Admitted is GRANTED.