Case Name: Pham v. Truong
Case No.: 2015-1-CV-279934

Defendant Toan Truong (“Defendant”) moves to compel responses to written discovery from plaintiff Loan Pham (“Plaintiff”) and to deem matters admitted.

I. Factual Background and Discovery Dispute

This is an action for breach of contract and fraud. According to the allegations of the complaint, Defendant obtained $60,000 from Plaintiff based on the representation that she would become a co-owner of a property located at 173 Kirk Avenue in San Jose. However, this representation proved to be false and Defendant subsequently filed an unlawful detainer action against Plaintiff on April 23, 2015 to evict her from the foregoing property. On April 28, 2015, Plaintiff filed her complaint asserting claims for breach of contract and fraud.

On January 28, 2016, Defendant served Plaintiff with his First Set of Requests for Admission (“RFA”), First Set of Requests for Production of Documents (“RPD”), and First Set of Form Interrogatories (“FI”). (Declaration of Seth W. Wiener in Support of Defendant’s Motion to Compel (“Wiener Decl.”), ¶¶ 2-4 and Exhibits A, B and C.) Plaintiff failed to provide timely responses to these requests. (Id., ¶ 5.) Consequently, on March 16, 2016, Defendant’s counsel personally delivered a letter to Plaintiff wherein he advised her that due to her failure to provide timely responses, all objections to the aforementioned requests had been waived, and requested that she provide responses, without objections, by the following day. (Id. ¶ 6 and Exhibit D.) Otherwise, the letter concluded, Defendant would proceed with a motion to compel and request that sanctions be imposed against Plaintiff for her failure to provide responses. (Id.)

No responses were forthcoming, and therefore on March 21, 2016, Defendant filed the instant motion to compel responses and to deem matters admitted. Plaintiff filed her opposition on April 15, 2016. On April 19, 2016, Defendant filed his reply.

II. Motion to Compel

With the instant motion, Defendant moves for an order compelling Plaintiff to provide initial responses to the first set of RPD and the first set of FI, and to deem the truth of the matters specified in the first set of RFA admitted.

A. FI and RPD

If a party to whom interrogatories and/or requests for production are directed fails to serve a timely response, that party waives any objection to the discovery. (Code Civ. Proc., §§ 2030.290, subd. (a), and 2031.300, subd. (a).) Further, the propounding party may move for an order compelling a response. (Code Civ. Proc., §§ 2030.290, subd. (b) and 2031.300, subd. (b).) There is no limitation period or meet and confer requirement for bringing a motion to compel an initial response, and the moving party need only show that the discovery was properly propounded and a timely response was not served. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Here, Defendant has demonstrated that the discovery at issue was properly propounded and that Plaintiff failed to serve responses. (Wiener Decl., ¶¶ 2-5.) Consequently, all objections have been waived. (Code Civ. Proc., §§ 2030.290, subd. (a), and 2031.300, subd. (a).) In her opposition, Plaintiff does not dispute the fact that she has not provided responses to Defendant’s discovery, but explains that she was left without counsel when her former attorney had to resign from the State Bar, and she only recently obtained a new attorney who is working “feverishly” to respond to the discovery demands. Plaintiff states that she anticipates she will serve responses on or before April 22, 2016. At present, the Court sees no indication that responses to any of the first sets of RPD and FI have been provided, and the fact that Plaintiff was self-represented for the last few months does not excuse her obligation to respond to discovery. (See Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [stating that “[p]ro. per. litigants are held to the same standards as attorneys”].) Consequently, to the extent that Defendant’s motion moves to compel initial responses to the first sets of RPD and FI, it is GRANTED.

B. Deem Matters Admitted

A party who has propounded requests for admission may move for an order to deem the truth of any matters specified in those requests admitted if the responding party fails to provide a timely response. (Code Civ. Proc., § 2033.280, subd. (b).) As with production request and interrogatories, the failure to provide a timely response to requests for admission results in the waiver of any objections to those requests. (Code Civ. Proc., § 2033.280, subd. (a).) There is no limitation period or meet and confer requirement for bringing a motion to deem matters admitted. (See Demeyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4.) The moving party need only show that the discovery was properly propounded and that a timely response was not served. (Id.) The court shall make an order deeming the matters admitted unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant. (Code Civ. Proc., § 2033.280, subd. (c); see also Tobin v. Oris (1992) 3 Cal.App.4th 973, 983.)

Here, Defendant has demonstrated that the discovery at issue was properly propounded and that Plaintiff failed to serve responses. (Wiener Decl., ¶¶ 2, 5.) In her opposition, Plaintiff indicates that responses are forthcoming but at present, there is nothing before the Court which establishes that substantially code-compliant proposed responses have been served. Consequently, to the extent that Defendant’s motion requests that the truth of matters specified in the first set of RFA be deemed admitted, it is GRANTED.

C. Request for Sanctions

In support of its motion, Defendant requests that the Court impose monetary sanctions against Plaintiff in the amount of $2,850 pursuant to Code of Civil Procedure sections 2030.290, subdivision (c) [interrogatories], 2031.300, subdivision (c) [requests for production], and 2033.280, subdivision (c) [requests for admission]. The former two code sections provide that sanctions are to be imposed against any party, person, or attorney who unsuccessfully opposes a motion to compel a response to interrogatories or requests for production unless it finds that the one subject to the sanctions acted with substantial justification or that other circumstances exist which make the imposition of sanctions unjust. (Code Civ. Proc., §§ 2030.290, subd. (c) and 2031.300, subd. (c).) However, where a motion to deem matters admitted has been granted, the imposition of sanctions is mandatory. (Code Civ. Proc., 2033.280, subd. (c).) Here, Plaintiff has not provided responses to Defendant’s discovery, was not substantially justified in opposing this motion, and fails to demonstrate the existence of circumstances which make the imposition of sanctions unjust. Consequently, the Court therefore finds that Defendant is entitled to sanctions.

Defendant’s request for sanctions is supported by a declaration from his counsel stating that he spent six hours preparing the motion to compel and anticipates spending an additional three hours reviewing Plaintiff’s opposition, preparing a reply, and attending the hearing, for a total of nine hours. (Wiener Decl., ¶ 7.) Counsel further declares that he incurred a $60 filing fee. (Id.) Anticipated time is not compensable, and though Defendant has filed a reply, counsel has not submitted a supporting declaration which indicates how much time was spent preparing that item. Thus, no sanctions will be awarded based on time spent drafting the reply. (Code Civ. Proc., § 2023.040 [a sanctions request must be accompanied by a declaration setting forth facts which support the amount of sanctions being sought].) The Court also does not find six hours to be an appropriate measure of time considering the relative simplicity of the issues that are the subject of this motion. Accordingly, the Court will award sanctions based on three hours of time at Defendant’s counsel’s claimed hourly rate of $280 for a total award of sanctions of $900 (3 x $280 + $60). Thus, Defendant’s request for sanctions is GRANTED IN PART.

III. Conclusion and Order

Defendant’s motion to compel responses and to deem matters admitted is GRANTED. Plaintiff shall provide code-compliant responses, without objections, to the first sets of FI and RPD within 20 calendar days of this order.

Defendant’s request for sanctions is GRANTED IN PART. Within 20 calendar days of this order, Plaintiff shall pay $900 to Defendant’s counsel.