Judge: Teresa A. Beaudet, Case: BC699489, Date: 2022-10-03 Tentative Ruling

Case Number: BC699489    Hearing Date: October 3, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On March 23, 2018, Plaintiff Candy Lopez (“Lopez”) filed this action against Defendants United Parcel Service, Inc. (“UPS”) and Ryan Quon (“Quon”).

On December 20, 2018, Quon filed a Cross-Complaint against Lopez and UPS. On February 28, 2022, Quon filed the operative Fifth Amended Cross-Complaint against

UPS, Lopez, Ruben Duran, Morgan Price (“Price”), Don Tefft, La Shawn Stanford (“Stanford”), Fausto Vargas, and Teamsters Local 396, asserting causes of action for (1) breach of employment contract, (2) discrimination based upon race in violation of Government Code         § 12940(a), (3) harassment based upon gender in violation of Government Code § 12940(j), (4) harassment based upon race in violation of Government Code § 12940(j), (5) intentional infliction of emotional distress, (6) unfair business practices in violation of Business and Professions Code §§ 17200-17208, (7) conspiring with and soliciting another to commit civil extortion, (8) aiding and abetting conspiracy and attempted extortion, (9) failure to prevent racial harassment under Government Code § 12940(k), (10) statutory indemnity Labor Code § 2802, and (11) aiding and abetting conversion.

            On March 22, 2022, Quon served Requests for Admission, Set One, on Cross-Defendants. (Khan Decl., ¶ 3, Ex. D.)[1] Quon’s counsel indicates that “[o]n or about on April 22, 2022, UPS and the [Individual Cross Defendants] provided not much more than a litany of copy/pasted objections devoid of any responses.” (Khan Decl., ¶ 3.)

            On July 8, 2022, the parties participated in an Informal Discovery Conference (“IDC”). Following the IDC, the Court issued a minute order on July 8, 2022, which provides, inter alia, that “[b]y 5 p.m. on 7/11/22, counsel for Cross-Defendants UPS, Tefft, Price and Stanford (the “UPS Parties”) will send an email to counsel for Quon indicating which affirmative defenses, if any, have been withdrawn, and indicating which outstanding discovery responses pertain to the MSJ/MSA filed by the UPS Parties. Regarding those outstanding discovery responses, the UPS

Parties will email verified joint responses thereto to counsel for Quon by 5 p.m. on 7/18/22.” The July 8, 2022 minute order also provides that “[t]he time for Quon to bring any motions to compel or compel further regarding the special interrogatories, requests for production, requests for admission, and the standard form interrogatories propounded to the UPS parties, to the extent that they do not duplicate the previous form interrogatories and first request for production, is extended to 45 days after July 18, 2022.”

            Quon asserts that “[a]s a result of the [Individual Cross Defendant’s] failure to serve a timely response to Requests for Admissions, Set 01; Quon is entitled to an order that the truth of the matters specified in the requests be deemed admitted.” (Mot. at p. 8:5-7.)

            Quon now moves “for an order deeming the truth of all matters specified in Request for Admissions, Set No. 01, served on Cross-Defendants, Don Tefft, Morgan Price and La Shawn Stanford, on March 22, 2022, admitted and conclusively established.” Quon also seeks monetary sanctions. UPS, Price, Don Tefft, and Stanford (collectively, the “UPS Cross-Defendants”) oppose.

Discussion

If a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (Code Civ. Proc., § 2033.280, subd. (b).) “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.” (Code Civ. Proc., § 2033.280, subd. (c).) In addition, failure to timely serve responses waives objections to the requests. (Code Civ. Proc., § 2033.280, subd. (a).) 

As an initial matter, the subject July 8, 2022 minute order provides that “[t]he time for Quon to bring any motions to compel or compel further regarding the…requests for admission…propounded to the UPS parties, to the extent that they do not duplicate the previous form interrogatories and first request for production, is extended to 45 days after July

18, 2022.” 45 days after July 18, 2022 is September 1, 2022. Quon filed the instant motion after this date, on September 6, 2022. Because the UPS Cross-Defendants have filed a substantive opposition to the motion, the Court in its discretion will consider the untimely motion.¿(Cal. Rules of Court, rule 3.1300(d).)¿

As set forth above, Quon’s motion asserts that “[a]s a result of the [Individual Cross Defendant’s] failure to serve a timely response to Requests for Admissions, Set 01; Quon is entitled to an order that the truth of the matters specified in the requests be deemed admitted.” (Mot. at p. 8:5-7.) Pursuant to Code of Civil Procedure section 2033.250, subdivision (a),

“[w]ithin 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.” As noted by the UPS Cross-Defendants, under Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), the time to respond is extended two court days after electronic service.

Quon indicates the Requests for Admission, Set One, were served on March 22, 2022 via email. (Khan Decl., ¶ 3, Ex. D.) The UPS Cross-Defendants provide evidence that on April 22, 2022, 31 days after March 22, 2022, their counsel served objections to Quon’s Requests for Admission, Set One. (Anderton Decl., ¶ 2.)[2] Thus, the UPS Cross-Defendants’ initial responses to the Requests for Admission, Set One, were timely served. In addition, as the UPS Cross-Defendants note, responses that consist of only objections are not required to be verified. (See Code Civ. Proc., § 2033.240, subd. (a), “[t]he party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.”) 

            The UPS Cross-Defendants also provide evidence that on July 18, 2022 at 5:00 p.m., their counsel served supplemental objections and responses to the Requests for Admissions, Set One, as well as verifications, except for the verification of Stanford. (Anderton Decl., ¶ 4.) On July 18, 2022 at 6:35 p.m., the UPS Cross-Defendants’ counsel served a copy of Stanford’s verification. (Anderton Decl., ¶ 5.)[3]

As to Stanford’s verification, “a responding party’s service of a tardy proposed RFA response that is substantially code-compliant will defeat a deemed admitted motion.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.) In other words, a “facially [] good faith effort to respond to RFAs in a manner that is substantially code-compliant” must result in a denial of a motion to deem matters admitted. (Id. at p. 782.)

               Quon contends that “a verification on behalf of an individual stating ‘I am informed and believe that the matters stated herein are true’ is insufficient” for “interrogatory answers.” (Mot. at p. 8:16-18.) To the extent Quon is asserting that the verifications served by the UPS Cross-Defendants on July 18, 2022 are insufficient, no legal authority is cited to by Quon in the motion to support this assertion. The UPS Cross-Defendants note that the verifications include the language “informed and believe.” (Anderton Decl., ¶¶ 4-5; Ex. B-2, Ex. C-2.) They cite to Chodos v. Superior Court of Los Angeles County (1963) 215 Cal.App.2d 318, 322-323, where the Court of Appeal noted that “[w]hile [former] section 2033 requires either an admission or a sworn statement denying specifically the matters of which an admission is requested, this is no different from the requirement that allegations in a sworn pleading must be answered under oath. The section permits the party to deny only a part or a qualification of a matter of which an admission is requested. He can answer stating that he has been informed and believes either the truth or falsity of the request and may verify his response in the traditional form of verification of such allegations.” (Internal quotations omitted.)[4]

In his untimely reply, Quon cites to Code of Civil Procedure section 2033.220, subdivision (a), which provides that “[e]ach answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.” Quon argues that “[t]he impact of CCP § 2033.220 is that, arguably, a denial based on information and belief is not straightforward (as required by CCP §2033.220(a)) because no one knows what information the responding party was relying on.” (Reply at p. 3:2-5.) The Court notes that it is unclear what legal authority Quon is citing to after this statement. In any event, the Court does not find that Quon has demonstrated that the UPS Cross-Defendants’ responses to Quon’s Requests for Admission, Set One, are not in substantial compliance with Code of Civil Procedure Section 2033.220. (See Code Civ. Proc., § 2033.280, subd. (c).)

Conclusion

Based on the foregoing, Quon’s motion is denied. Quon’s request for sanctions is denied.

Quon is ordered to give notice of this Order.

DATED:  October 3, 2022                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court