Judge Steven A. Ellis, Case Number: 22STCV22539, Date: 2024-02-07 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV22539, Date: 2024-02-07 Tentative Ruling

Case Number: 22STCV22539 Hearing Date: March 5, 2024 Dept: 29

Motion for Deemed Admitted Order filed by Defendant Marvell Wynne II.

Tentative

The Court DENIES Defendant’s request for a deemed-admitted order.

The Court GRANTS in part Defendant’s requests for sanctions.

Background

On July 12, 2022, Plaintiff Kellyanne O’Callaghan (“Plaintiff”) filed the complaint in this action asserting causes of action for negligence, premises liability, and intentional tort against

Defendants David M. Bingham, Marvell Wynne II, James T. Lewis, Jr., successor Trustee of the

Lewis Family Trust of 1991, James T. Lewis Jr., and Does 1 through 50, based on alleged asbestos and mold in Plaintiff’s apartment.

On November 18, 2022, Defendants Marvell Wynne II and David M. Bingham filed an answer to the complaint.

On July 26, 2023, Defendant Marvell Wynne II (“Defendant”) served Plaintiff with Requests for Admission (Set One) (“RFAs”). (Ducey Decl., ¶ 5 & Exh. A.) Plaintiff did not serve timely responses.

(Id., ¶ 6.)

On January 9, 2024, Defendant filed this motion for a deemed-admitted order. Defendant also seeks sanctions.

On February 20, 2024, Plaintiff filed her opposition. Attached to the opposition are responses to the RFAs.

Legal Standard

A party must respond to requests for admission within 30 days after service. (Code Civ. Proc., § 2033.250, subd.(a).) If a party to whom requests for admission are directed does not provide a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted. (Id., § 2033.280, subd. (b).) There is no time limit for such a motion, and no meet and confer efforts are required. (See id., § 2033.280; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2033.280, subd. (a).)

The court “shall” make the order that the truth of the matters specified in the request be deemed admitted unless the court “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.” (Id., § 2033.280, subd. (c); see St. Mary v. Super. Ct. (2014) 223 Cal.App.4th 762, 778-780.)

“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 [to deem admitted the matters contained in the requests for admission].” (Code Civ. Proc., § 2033.280, subd. (c).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.” Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd. (a).)

“[P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].” (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 407.) Even if the untimely response “does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses … the trial court retains the authority to hear the motion.”¿ (Id. at pp. 408-409.)¿ This rule gives “an important incentive for parties to respond to discovery in a timely fashion.”¿ (Id. at p. 408.)¿ If “the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions,” the trial court may “deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.”¿ (Id. at p. 409.) “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

Discussion

Defendant served Plaintiff with RFAs on July 26, 2023. (Ducey Decl., ¶ 5 & Exh. A.) After not receiving a response for more than five months, Defendant filed this motion. (Id., ¶ 6.)

Shortly before filing her opposition, Plaintiff served responses to the RFAs.

The Court finds that prior to the hearing, Plaintiff served responses that are in substantial compliance with Code of Civil Procedure section 2033.220. Accordingly, the motion for a deemed-admitted order is DENIED. (Code Civ. Proc., § 2033.280, subd. (c).

Defendant’s request for sanctions is granted in part. Under Code of Civil Procedure section 2033.280, subdivision (c), sanctions are “mandatory” against “the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” The Court sets sanctions in the amount of $624.15, calculated based on 2.5 hours of attorney time, multiplied by counsel’s reasonable billing rate of $225 per hour, plus the filing fee. (Ducey Decl., ¶ 7.)

Conclusion

The Court DENIES Defendant’s request for a deemed-admitted order.

The Court GRANTS in part Defendant’s requests for sanctions.

The Court ORDERS Plaintiff and counsel of record Isaac Toveg, jointly and severally, to pay monetary sanctions under the Civil Discovery Act to Defendant Marvell Wynne II in the amount of $624.15 within 30 days of notice.

Moving party is ORDERED to give notice.