Judge: Stephen P. Pfahler, Case: 23STCV04690, Date: 2024-08-22 Tentative Ruling

Case Number: 23STCV04690    Hearing Date: August 22, 2024    Dept: 68

Dept. 68

Date: 8-22-24

Case #23STCV04690

Trial Date: 3-24-25

ADMISSIONS

MOVING PARTY: Defendant, Solaray, LLC

RESPONDING PARTY: Plaintiff, Bewind Company Limited

RELIEF REQUESTED

Motions to Deem Requests for Admissions Admitted

SUMMARY OF ACTION

Plaintiff Bewind Company Limited alleges a $1,067,854.66 balance due against predecessor  Mobileessentials LLC, and seeks to collect on said balance against Defendant Solaray, LLC, following Defendant’s acquisition of Mobileessentials LLC with all attendant liabilities.

On March 2, 2023, Plaintiff filed a complaint for (1) Breach Of Contract (2) Common Counts (3) Open Book Account (4) Account Stated (5) Unjust Enrichment. Defendant answered on April 19, 2023.

RULING: Denied/Moot.

Defendant, Solaray, LLC moves to deem Requests for Admissions Admitted based on the failure to serve a verification with the objections. Plaintiff in opposition represents service of a verification on May 20, 2024, at 5:10 p.m., which constituted denials for all items. Plaintiff additionally maintains any motion is untimely, lacks a separate statement, and failed to meet and confer.

The motion was only reserved and identified as a motion to deem responses to admissions admitted. The court will not consider any motion to compel further responses, due to the improper reservation and notice of such a motion.

The motion to deem admissions admitted relies on the lack of verification. Unverified responses constitute no response. (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 635-636.) Plaintiff was not required to meet and confer prior to filing a motion to deem admissions admitted. While pure objections need not contain a verification, the responses provided in the motion in fact also contain “denied” for each response without verification according to moving party. [Declaration of Lyric Enav.] (Code Civ. Proc., § 2033.240, subd. (a).)

Nevertheless, the opposition incorporates a copy of the response with an attached verification. [Declaration of William Niu, Ex. C.] The court accepts the existence of the timely served verification. The motion to deem requests for admissions is therefore MOOT and DENIED on this basis. “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.)

Even if the court considered the improperly reserved and noticed motion, the motion lacks sufficient support. While the motion was filed 49 days after service of the objections by mail, and therefore timely, and includes a separate statement, the court finds no meet and confer effort supporting such a motion on the deficiency of the denials. The motion is therefore denied either way should moving party persist with the court considering the improperly reserved and identified motion.

Defendant requests sanctions pursuant to Code of Civil Procedure 2033.290, subdivision (d). Since the motion is denied and the court declines to consider the motion to compel further responses, as improperly noticed, unreserved, and unsupported, the court declines to impose sanctions under the requested section. The court cannot impose sanctions in favor of responding party under Code of Civil Procedure 2033.280.

Defendant to give notice.