Judge: Virginia Keeny, Case: 20VECV01128, Date: 2022-09-29 Tentative Ruling
Case Number: 20VECV01128 Hearing Date: September 29, 2022 Dept: W
PERLA HUDSON v. ELDAV CONSTRUCTION
& DEVELOPMENT, INC.
MOTION to deem requests for admission admitted
Date of Hearing: September 29, 2022 Trial Date: January 30, 2022
Department: W Case
No.: 20VECV01128
Moving Party: Defendant,
Eldav Construction & Development, Inc.
Responding Party: None.
BACKGROUND
On October 7, 2020, Perla Hudson
(“Plaintiff”) commenced the present action by filing a Complaint against Eldav
Construction & Development, Inc. (“Defendant”) and Does 1 through 50. Plaintiff’s operative Complaint alleges
Defendant, a contractor hired by Plaintiff, performed a sub-standard and
defective remodel of Plaintiff’s residence and, thereafter, abandoned the job.
Plaintiff’s Complaint alleges the following causes of action against Defendant:
(1) Negligence (Construction Defect); (2) Breach of Contract; and (3)
Accounting.
On November 12, 2020, Defendant filed
an Answer.
On November 18, 2020, Defendant filed a
Cross-Complaint against Plaintiff and various subcontractors involved in the
remodel of Plaintiff’s home, including GJ Plumbing, Icon Remodeling, Inc.,
B.N.S. Marble & Granite, Inc., Vision Mirror and Glass, Inc., and Roes 1
through 100 (collectively,
“Cross-Defendants”). Defendant’s
Cross-Complaint alleges the following causes of action: (1) Total Implied
Indemnity; (2) Partial Implied Indemnity; (3) Contribution; (4) Declaratory
Relief; (5) Breach of Contract; (6) Account
Stated; (7) Open Book Account; (8) Work, Labor, and Materials Provided; (9) Quantum
Meruit; and (10) Fraud.
On December 15, 2020, Plaintiff filed
an Answer to Defendant’s Cross-Complaint.
On August 4 and 6, 2021, respectively,
Cross-Defendant Vision Mirror and Glass, Inc. filed an Answer to Defendant’s
Cross-Complaint and a Cross-Complaint against Defendant only, alleging the
following causes of action: (1) Implied Equitable Indemnity; (2) Apportionment;
(3) Contribution; and (4) Declaratory Relief.
On September 2, 2021, Defendant filed
amended the Cross-Complaint by substituting Hi-Tech Waterproofing, LLC as Roe
1.
On August 31, 2022, Defendant filed the
present Motion to Deem Requests for Admission Admitted by Plaintiff. Plaintiff has not filed any Opposition to
Defendant’s Motion.
[Tentative] Ruling
Defendant Eldav Construction &
Development, Inc.’s Motion to Deem Requests for Admission Admitted is GRANTED.
LEGAL
STANDARD
When a party fails to timely respond to
requests for admissions, “[t]he 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.” (Code Civ.
Proc., § 2033.280, subd. (b).) If a
party to whom requests for admission are directed fails to serve a timely
response, the party “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).” (Code Civ.
Proc., § 2033.280, subd. (a).) Pursuant
to Code of Civil Procedure section 2033.250, a responding party must serve
responses to a propounding party’s requests for admissions within thirty (30)
days of service. (Code Civ. Proc., §
2033.250, subd. (a).)
“The court shall make . . . [an] order
[deeming the truth of the matters specified in the requests for admission for
which a timely response has not been served admitted], 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.” (Code Civ. Proc., § 2033.280, subd. (c).)
When a party fails to timely respond to
requests for admissions, “[t]he requesting party may move . . . for a monetary
sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2033.280, subd.
(b).) “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).)
ANALYSIS
Defendant Eldav
Construction & Development, Inc. (“Defendant”) moves for an Order deeming
the Requests for Admission (Set No. 1), served upon Plaintiff on approximately June
15, 2022 admitted, pursuant to Code of Civil Procedure section 2033.280. (Code Civ. Proc., § 2033.280.)
The Court
finds Defendant is entitled to an Order deeming the aforementioned Request for
Admission (Set No. 1) admitted by Plaintiff.
Defendant demonstrates that, on approximately June 15, 2022, Plaintiff
was properly served with Defendant’s Request for Admission (Set No. 1) by
e-mail. (Krause-Leemon Decl., ¶ 2, Ex. A.) Pursuant to the relevant provisions of the
Code of Civil Procedure, Plaintiff was required to serve a response to Defendant’s
Request for Admission (Set No. 1.) no later than July 19, 2022. (Code
Civ. Proc., §§ 2033.250, subd. (a), 1010.6, subd. (a)(4)(B) [“Any period of
notice, or any right or duty to do any act or make any response within any
period or on a date certain after the service of the document, which time
period or date is prescribed by statute or rule of court, shall be extended
after service by electronic means by two court days”].) Defendant sufficiently demonstrates that Plaintiff
failed to serve a response by the above-identified statutory deadline, or
anytime thereafter. (Krause-Leemon
Decl., ¶¶ 5, 9.) Accordingly, as Defendant has sufficiently
demonstrated Plaintiff has been properly served with the subject Request for
Admission (Set No. 1), and, in turn, has failed to serve a timely response
thereto, the Court finds Defendant is entitled to an Order deeming the
Requests for Admission (Set No. 1) admitted by Plaintiff, pursuant to Code of
Civil Procedure section 2033.280. (Code
Civ. Proc., § 2033.280.)
CONCLUSION
Defendant Eldav Construction &
Development, Inc.’s Motion to Deem Requests for Admission Admitted is GRANTED.