Case Name: Nhu Nguyen v. PC Test Engineering Laboratory, Inc., et al.

Case No.: 17CV319050

This is a sexual harassment and constructive termination action brought by plaintiff Nhu Nguyen (“Plaintiff”) against defendants PC Test Engineering Laboratory, Inc. (“PC Test”), her former employer, and Tony Le (“Le”) (collectively “Defendants”), her former supervisor.

Currently before the Court is Le’s motion for an order that the truth of all matters specified in Requests for Admission, Set One (“RFA”) be deemed admitted, which Plaintiff opposes. The motion is brought pursuant to Code of Civil Procedure section 2033.280 (“Section 2033.280”), which permits a party to move for an order deeming admitted the truth of matters in requests for admission if the responding party fails to serve a timely response. A court is required to make this order unless it finds the responding party has served substantially code-compliant, proposed responses to the requests before the hearing on the motion. (Code Civ. Proc., § 2033.280, subd. (c).)

The record reflects that Le served Plaintiff with RFA. (Kim Decl., ¶¶ 3, 5, Exh. A.) Having received no response, Le’s counsel contacted Plaintiff’s counsel regarding the lack of responses but received no reply. (Id. at ¶ 6.) Le therefore filed the present motion for an order to deem the RFA admitted.

Several days later, upon receipt of the motion, Plaintiff’s counsel informed Le’s counsel that Plaintiff did, in fact, serve responses to the RFA but had inadvertently listed PC Test as the “Propounding Party” instead of Le. (Hibbard Decl., ¶¶ 5, 10, Exh. B.) The responses did not list the text of the original requests and, as such, it was unclear they were intended to respond to Le’s RFA. (See Id., Exh. A.) Subsequently, Plaintiff’s counsel sent “amended” responses to the RFA to properly reflect Le as the propounding party but was advised by Le’s counsel that, under Code of Civil Procedure section 2033.300, a party must seek leave of court before amending his or her responses to requests for admission. (Supp. Kim Decl., ¶ 4; Hibbard Decl., ¶ 11, Exh. C.) Two days after this exchange, Plaintiff served Le with “corrected,” verified responses to the RFA listing Le as the “Propounding Party.” (Hibbard Decl., ¶ 12, Exh. D.)

The parties are apparently in agreement that Plaintiff served substantially code-compliant responses to the RFA before the hearing on the motion. In reply, Le acknowledges he received those responses and represents he now only seeks an order granting his request for monetary sanctions. (See Reply at p. 3:1-2.) Accordingly, the motion for an order deeming the RFA admitted is DENIED.

The only issue remaining is whether sanctions should be awarded. Le requests monetary sanctions against Plaintiff and her counsel. His request is made pursuant to Section 2033.280, subdivision (c), which provides that “[i]t is mandatory that the court impose a monetary sanction…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), emphasis added.)

In opposition, Plaintiff contends sanctions should not be awarded because “[i]t was obvious there was a typographical error in the [initial] responses” in which PC Test was listed as the “Propounding Party” instead of Le. (Opp. at p. 3:21-23.) She also argues that, though Le’s counsel sought to meet and confer regarding the lack of responses to the RFA, she was aware the associate of Plaintiff’s counsel who originally handled this matter had recently left the firm. Though not explicitly stated, it appears Plaintiff perhaps intended to argue these circumstances would make the imposition of sanctions unjust. Her arguments are not well-taken.

Section 2033.280, subdivision (c), clearly and unequivocally mandates an award of sanctions where the failure to serve a timely response to requests for admission necessitated the filing of a motion to compel. While other statutes relating to motions to compel discovery responses authorize a court to consider if the party subject to sanctions acted with substantial justification or there are other circumstances that would make imposing sanctions unjust (see, e.g., Code Civ. Proc., §§ 2031.310, subd. (h); 2030.300, subd. (d); 2030.290, subd. (c)), Section 2033.280 contains no such discretionary language. Plaintiff does not cite any authority supporting a contrary proposition. Therefore, Le is entitled to an award of sanctions.

Le seeks sanctions in the amount of $997.50, representing two hours and forty-five minutes spent preparing the motion and one hour of anticipated time to attend the hearing at an hourly rate of $250.00, along with the $60.00 filing fee. (Supp. Kim Decl., ¶ 5.) The Court declines to award sanctions for the time he anticipates spending at the hearing on this motion. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551, 1564 [declining to award sanctions for anticipated expenses].) However, the balance of his request is reasonable.

Accordingly, Le’s request for monetary sanctions is GRANTED IN PART in the amount of $747.50 (2.75 hours x $250.00 + $60.00). Plaintiff and her counsel shall pay this award to Le’s counsel within 20 calendar days of this Order.