Judge: Stephen P. Pfahler, Case: 22CHCV01087, Date: 2023-08-30 Tentative Ruling

Case Number: 22CHCV01087    Hearing Date: August 30, 2023    Dept: F49

Dept. F-49

Date: 8-30-23

Case #22CHCV01087

Trial Date: Not Set

ADMISSIONS

MOVING PARTY: Plaintiff, A.G.

RESPONDING PARTY: Defendant, Gould Chiropractic, Inc.

RELIEF REQUESTED

Motion to Deem Request for Admissions Admitted

SUMMARY OF ACTION

On November 21, 2020, plaintiff A.G. alleges defendant Andrew Ivanov, a massage therapist with defendant Gould Chiropractic, Inc., removed Plaintiff’s underwear and touched Plaintiff’s genitals without consent, while Plaintiff was lying face down on the massage table.

On November 7 and 8, 2022, Plaintiff filed a complaint and first amended complaint for Sexual Battery, Violation of Ralph Civil Rights At, Gender Violence, Assault, Battery, Intentional Infliction of Emotional Distress, and Negligence. On January 19, 2023, Ivanov, in pro per, answered the complaint. On April 12, 2023, Gould Chiropractic, Inc. answered the complaint.

RULING: Denied.

Plaintiff, A.G. moves to deem Request for Admissions (set one) admitted as to defendant Andrew Ivanov. Plaintiff served the admissions on March 30, 2023. No responses were received at the time of the August 1, 2023, filing of the motion. [Declaration of Maximilian Lee.]

Defendant Gould Chiropractic, Inc. (Gould) in opposition challenges the motion based on service of admissions on co-defendant in pro per, Ivanov, as prejudicially impugning liability on Gould Chiropractic, Inc. Gould next requests a continuance of the hearing in order to “address relief” on behalf of Ivanov from any admissions deemed admitted. The motion remains unopposed by the actual responding party, Ivanov.

Plaintiff in reply acknowledges that responses from Ivanov were served on August 15, 2023 (after the filing date of the instant motion). Plaintiff requests sanctions for reimbursement of the costs associated with bringing the instant motion thereby securing the responses. Plaintiff additionally questions the necessity and propriety of the Gould Chiropractic “opposition.”

Given the acknowledgment of responses by the actual responding party Ivanov to the subject admissions, the court deems the motion moot. “As one court put it: ‘If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion. But woe betide the party who fails to serve responses before the hearing.’” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.)

As for Gould Chiropractic, while the court appreciates the proactive effort to protect the corporate entity, reliance on opinions regarding professional courtesy insufficiently supports any basis of legal argument justifying denial of relief on a properly supported motion regarding non-responded discovery by a self-represented co-defendant. (See People v. Bell (2004) 118 Cal.App.4th 249, 256.) The court also finds no legal support for a co-defendant to argue on behalf of said party, and counsel presents no proof of substitution representing Ivanov. The court therefore also denies the improperly requested motion for “relief” from any waived objections, and declines to continue the instant hearing. Ivanov may bring a separate, properly noticed motion for relief either in pro per or through substituted counsel. (Code Civ. Proc., § 2033.280.)

The unopposed motion as to served party Ivanov is therefore denied, due to responses being served prior to the hearing date. Sanctions in the amount of $250 against Ivanov to be paid within 30 days, as reimbursement of costs incurred in securing the responses after the filing of the motion. (Code Civ. Proc., § 2033.280, subd. (c).)

Plaintiff to give notice to all parties.