Judge: Theresa M. Traber, Case: 20STCV02293, Date: 2022-08-09 Tentative Ruling

Case Number: 20STCV02293    Hearing Date: August 9, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 9, 2022           TRIAL DATE: PHASE 1: May 8, 2023

CASE:                         Lauren Moriah Castro v. Ricardo Castro, et al.

CASE NO.:                 20STCV02293           

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; REQUEST FOR SANCTIONS

MOVING PARTY:               Plaintiff Lauren Moriah Castro

RESPONDING PARTY(S): Defendant Nicole Ann Nunez-Castro

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action in real property filed on March 4, 2020. Plaintiff and Defendant Richard Castro are co-owners of a piece of real property as tenants in common. Plaintiff seeks the sale of the property and an accounting of all sums for upkeep, maintenance, mortgage, tax, and insurance payments on the property.

Plaintiff moves to deem requests for admissions from Defendant Nicole Nunez-Castro admitted and requests sanctions.

TENTATIVE RULING:

Plaintiff’s Motion to Deem Requests for Admissions from Defendant Nicole Ann Nunez-Castro as Admitted is DENIED.

            Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Plaintiff moves to deem requests for admissions from Defendant Nicole Nunez-Castro admitted and requests sanctions.

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Defective Proof of Service

            Plaintiff has not provided the Court with a proof of service stating when or how this motion was served on Defendant. However, Defendant has not objected to the motion on this basis. Therefore, the Court will overlook this defect and consider the merits of the motion.

Defendant’s Opposition

            Plaintiff objects to Defendant’s Opposition on the ground that it was not properly served on Plaintiff. Plaintiff contends that Defendant improperly sent the opposition to Plaintiff’s counsel’s personal email. (Supplemental Declaration of Susan Murphy ISO Mot. ¶ 13.) Plaintiff’s counsel had never consented to electronic service at that email address. (Id.) Electronic service may only be conducted in a manner agreed to by the parties. (Cal. Rule of Court Rule 2.251(1)(A)-(B).) Defendant’s opposition was therefore improperly served. However, as Plaintiff’s counsel received the opposition and filed a reply brief with the Court, the Court will overlook this defect and consider the opposition on its merits.

Legal Standard

When a party to whom requests for admission are directed fails to respond, the party propounding the requests may move for an order that the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc. § 2033.280(b).) “The court shall make this order [deem the requests admitted], unless it finds that the party to whom the request for admissions 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.” (Code Civ. Proc. § 2033.280(c).)  There is no time limit for filing a motion to deem requested admissions as admitted, unlike with a motion to compel further responses. (See Code Civ. Proc. §§ 2030.300(c); 2031.310(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409.) There is also no meet and confer requirement, unlike with a motion to compel further responses. (See Code Civ. Proc. § 2016.040.)

Analysis

            On April 16, 2022, Plaintiffs served Plaintiff’s Requests for Admissions, Set One on Defendant. (Murphy Supp. Decl. ¶ 4.) Defendant requested and received multiple extensions, and Plaintiff gave a final extension to July 5, 2022. (Id. ¶¶ 5-7, Exh. 2.) After receiving no response, Plaintiff filed this motion on July 11, 2022. (Id. ¶ 8.) On July 15, 2022, Plaintiff’s counsel’s office received mail from Defendant’s counsel that included discovery responses. (Id. ¶ 11.)

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            Code of Civil Procedure section 2033.220 states:

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

Plaintiff contends that Defendant never served responses to the requests for admissions. In opposition, Defendant states that he responded to discovery on July 5, 2022. (Declaration of Steven L. Boortz ISO Opp. ¶ 13.)  Although Plaintiff concedes that the responses were received, Plaintiff states that the proof of service was not signed. (Murphy Supp. Decl. ¶¶ 9, 13, Exh. 5.) Plaintiff therefore contends that Defendant has not responded to the requests for admission, and thus the motion should be granted.

The Court disagrees. Plaintiff has conceded that the responses were received on July 15, 2022 and has so stated in a verified declaration under penalty of perjury. Defense counsel has also stated in a verified declaration under penalty of perjury that the documents were served by mail on July 5, 2022. The Proof of Service is merely that: proof of service, and Defendant has offered other evidence sufficient to show the responses were served. As the discovery requests at issue have been provided, this is not a basis to deem Plaintiff’s requests for admission admitted.

Plaintiff also contends that the responses are invalid because Defendant served untimely objections. However, Plaintiff does not include the discovery requests nor responses that would allow the Court  to evaluate the merits of this contention. Plaintiff has therefore failed to show that the requests for admissions should be deemed admitted on this basis.

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Sanctions

            Plaintiff requests sanctions against Defendant and her counsel in the amount of $2,250. However, as Plaintiff has not shown that Defendant in fact failed to timely serve discovery responses, Plaintiff is not the prevailing party on this motion, and sanctions are not warranted. (Code Civ. Proc. § 2033.280(c).)

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Deem Requests for Admissions from Defendant Nicole Ann Nunez-Castro as Admitted is DENIED.

            Plaintiff’s request for sanctions is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  August 9, 2022                                   ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.