Judge: Virginia Keeny, Case: 22VECV00233, Date: 2022-09-02 Tentative Ruling

Case Number: 22VECV00233    Hearing Date: September 2, 2022    Dept: W

STEVEN ROTH V. CESAR FERNANADO TORRES, ET AL.  

MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED

Date of Hearing:         September 2, 2022                             Trial Date:       October 29, 2023 

Department:               W                                                         Case No.:         22VECV00233

Moving Party:             Plaintiff Steven Roth, pro per

Responding Party:       None

Notice:                         Proper                                                                 

BACKGROUND

This is a breach of contract action. Plaintiff alleges that Defendant fraudulently induced and breached a residential painting contract to paint exterior windows and gates at Plaintiff’s residence.  Plaintiff alleges that Defendant’s work was so poor that its defects and the resulting property damage are visible to even an unskilled layperson. Defendant promised that all surfaces not being painted would be “covered with painters’ plastic and paper to prevent damage” as part of the window preparation when bidding the job. However, Defendant did not mask any of the hundreds of windowpanes. It will cost Plaintiff at least $29,196.00 to correct the property damage caused by Defendant’ negligence, which includes replacing the damaged glass, repainting the windows and gates, and applying window tinting to the new glass to match that which was on the glass before Defendant damaged the existing glass.

Plaintiff filed a complaint on February 16, 2022, alleging:

1)                  Breach of Contract

2)                  Negligence

3)                  Fraudulent Inducement

4)                  Unfair Business Practice in violation of California Business and Professions Code § 17200, et seq.

On August 8, 2022, Plaintiff Steven Roth filed the instant motion to deem request for admissions admitted. Defendant does not oppose. 

[TENTATIVE] RULING: GRANT

DISCUSSION

Plaintiff moves for an order deeming admitted the genuineness of documents and the truth of matters specified in Cesar Fernando Torres Requests for Admission (Set One) pursuant to Code of Civil Procedure § 2033.280. This motion is made on the grounds that the written discovery was properly served, good cause exists for providing the documents and information demanded, the demands are relevant to the subject matter of the action, Cesar Fernando Torres failed to make any response thereto, and Cesar Fernando Torres’s failure to respond is without substantial justification.

Plaintiff moves under CCP §2033.280 to deem the RFA admitted. Where there has been no timely response to a request for admission under CCP § 2033.010, the propounding 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.  (Code of Civ. Proc., § 2033.280, subd. (b).)  The party who failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect.  (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)  The court “shall” grant a motion to deem admitted requests for admissions, “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 of Civ. Proc., § 2033.280, subd. (c).)

Plaintiff attests that on May 3, 2022, Plaintiff served Requests for Admissions, Set One, on Defendant Cesar Fernando Torres. (Roth Decl. ¶ 2.) Responses were due on June 7, 2022. (Id. ¶ 3.) Cesar Fernando Torres did not request any extension of time. (Id. ¶ 4.) To date, Plaintiff has not received any response to the request. (Id. ¶ 5.)

Defendant has not filed any opposition to Plaintiff’s motion to deem the RFA admitted. Nor has Plaintiff otherwise demonstrated that Defendant has served, before the hearing on the motion, a proposed response to the RFA.  Accordingly, Plaintiff’s unopposed motion for an order deeming the RFA admitted is granted pursuant to CCP §2033.280.  Defendant is deemed to have admitted the truth of all matters specified in the RFA as of this date.

Plaintiff request sanctions against Defendant as the Court deems appropriate. The Court finds Defendant’s failure to respond a misuse of the discovery process.  The Court grants sanctions for 1 hour to prepare the motion and 1 hour to appear at the hearing, at $150.00 per hour, plus a $60.00 filing fee, for a total of $360.00. Defendant is ordered to pay monetary sanctions in the amount of $360.00 to Plaintiff within thirty (30) days of notice of this order.