Judge Thomas Falls, Case 21PSCV00475 2023-01-31 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

RE: CITY OF EL MONTE, A CALIFORNIA MUNICIPAL CORPORATION vs W&B INVESTMENT GROUP LLC (21PSCV00475)

______________________________________________________________________________

On June 7, 2021, Plaintiff the City of El Monte filed suit against Defendant W&B.

To date, as of Thursday, January 26, 2023, at 11:45 AM, no Reply has been received (due 5 court days before hearing [Tues. 1/24]).

RFAs are different from other civil discovery tools such as depositions, interrogatories, and requests for documents because while most of the other discovery procedure primarily assist counsel prepare for trial, RFAs are aimed at “setting at rest a triable issue so that it will not have to be tried.” (St. Mary v. Superior Ct. (2014) 223 Cal.App.4th 762, 774, 775, quoting Cembrook v. Superior Ct. (1961) 56 Cal.2d 423, 429.)

C.C.P. section 2033.280 then provides that if a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(c) 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.

Defendant moves for an order that the truth of the matters specified in Defendant W&B Investment Group, LLC.’s, Requests for Admission, Set 1, propounded on Plaintiff City of El Monte, on or about August 1, 2022, be deemed admitted and that a monetary sanction under Cal. Code Civ. Proc. §2023.030(c) be imposed on Plaintiff City of El Monte on the ground that Plaintiff City of El Monte has not responded to the requests for admission.

In Opposition, Plaintiff avers that it was not properly served with the discovery because at no time prior to sending the RFAs did Defendant’s counsel (1) ask Plaintiff’s counsel for an e-mail to which it could send the RFAs or (2) clarify that electronic service was an appropriate method of service.

Indeed, the Proof of Service attached to Defendant’s Motion indicates that Plaintiff was served via electronic service to “dwelch@drwelchlaw.com.” (Motion p. 9 of 13 of PDF.) However, CCP section 1010.6(b)(3) requires that “[b]efore first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.” And here, Plaintiff avers that no such request was made because had Defense called to request to serve via e-mail, they would have known that the internal procedures from the firm require that all electronic service be sent to a specific firm email as other emails are often lost. (Opp. pp. 1-2.) As such, Plaintiff did not receive the RFAs.[2]

Therefore, absent a Reply to address Plaintiff’s contention about improper service, the court finds it impossible for Plaintiff to have responded to the RFAs.

[1] As a prefatory matter, Plaintiff argues that Defendant also did not provide proper notice of the hearing on the instant motion. (See Whittemore Decl.) The court is uncertain how so. CCP section 1005 requires that all moving and supporting papers shall be served and filed at least sixteen (16) court days before the hearing. Here, the hearing date is on January 31, 2023. (See ‘Court Reservation Receipt.’) Effectively, 16 court days before the hearing is Friday, January 13, 2023. The proof of service indicates that notice of the hearing was provided on November 19, 2022, which provided ample notice to Plaintiff.

[2] That said, the court notes that neither Plaintiff’s opposition nor Plaintiff’s counsel’s declaration states what email address the discovery should have been sent to nor how Plaintiff learned of the discovery request.

[3] Arguably, the motion could be rendered moot as Plaintiff explains it has responded.