Case Number: BC686476 Hearing Date: August 26, 2019 Dept: 4A

Motion to Deem Matters in Request for Admissions (Set One) to be True; Motion to Compel Deposition

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On December 11, 2017 Plaintiff Justin Ashouri filed a complaint against Defendants Marilyn Nickel and Lotus Property Services, Inc. alleging negligence and negligence per se for an electrocution that occurred on January 27, 2017.

On August 2, 2019, Defendant Lotus Property Services, Inc. filed a motion to deem the matters in Request for Admissions (Set One) to be true against Plaintiff and a motion to compel Plaintiff’s attendance and testimony at a deposition pursuant to California Code of Civil Procedure sections 2025.450, subdivision (a).

Trial is set for March 9, 2020.

PARTY’S REQUESTS

Defendant Lotus Property Services, Inc. (“Moving Defendant”) requests that the Court deem the matters in Request for Admissions (Set One) as true against Plaintiff.

Moving Defendant also requests the Court to compel Plaintiff to appear and testify at a deposition on September 4, 2019 at 10:30 a.m. due to Plaintiff’s failure to appear at his deposition.

Moving Defendant further asks the Court to order Plaintiff to pay $1,960 in monetary sanctions for forcing it to bring these motions.

LEGAL STANDARD

Deem Admitted

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “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).” The court “shall” grant the motion to deem requests for admission 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).)

Compel Deposition

California Code of Civil Procedure section 2025.450, subdivision (a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

California Code of Civil Procedure section 2025.450, subdivision (b) provides: “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Sanctions

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and a motion to compel responses to interrogatories against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2033.280, subd. (c).)

California Code of Civil Procedure section 2025.450, subdivision (c) provides, “(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010, subd. (d).)

DISCUSSION

Deem Admitted

On February 15, 2019, Moving Defendant served Request for Admissions (Set One) on Plaintiff by U.S. Mail. (Wilson Decl., ¶ 3, Exh. A.) On April 5, 2019, Plaintiff provided an unverified and untimely response. (Wilson Decl., ¶ 4.) On August 5, 2019, Plaintiff served verified responses without objections on Moving Defendant by Express Mail. (Opposition, p. 2:3-2:5, Exh. A.)

Plaintiff’s unverified responses were akin to no responses at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) But Plaintiff’s verified responses served on August 5, 2019 mooted Moving Defendant’s request for said responses. However, the issue of sanctions remains and is addressed below. Plaintiff’s argument that the motion should be denied because an informal discovery conference has not been conducted is without merit because such conferences are required when timely, but allegedly deficient responses are served. Plaintiff did not serve timely responses here.

Compel Deposition

On December 11, 2018, Moving Defendant served a notice of deposition and demand to produce documents on Plaintiff by U.S. Mail for Plaintiff’s deposition to take place on January 15, 2019. On January 30, 2019, Moving Defendant served a notice of deposition and demand to produce documents on Plaintiff by U.S. Mail for Plaintiff’s deposition to take place on March 7, 2019. (Wilson Decl., ¶ 4, Exh. A-B.) Plaintiff failed to appear at both of these depositions and failed to produce documents at the March 7, 2019 deposition. (Wilson Decl., ¶ 3.)

On August 20, 2019, Plaintiff filed an untimely opposition to Moving Defendant’s motion to compel Plaintiff’s attendance and testimony at a deposition. Even after considering this late opposition, the Court finds Plaintiff’s deposition must be compelled. Plaintiff argues that his counsel was unavailable for the March 7, 2019 deposition. (Opposition, p. 2:15-2:17.) This is not a valid objection. Additionally, this does not explain why Plaintiff failed to appear at the January 15, 2019 deposition. Finally, Plaintiff’s counsel’s unavailability at the March 7, 2019 deposition does not explain why Plaintiff’s counsel did not attempt to set the deposition for another date. Plaintiff’s counsel’s attempt to coordinate the deposition on April 9, 2019 after two failures to appear does not excuse Plaintiff’s failure to appear at the January 15, 2019 deposition or the March 7, 2019 deposition.

Sanctions

The Court finds there is no evidence that Plaintiff’s failure to respond to Moving Defendant’s Request for Admissions (Set One) or Plaintiff’s failure to appear at the properly noticed depositions was substantially justified. Further, there is no basis for finding that the imposition of sanctions would be unjust.

Moving Defendant’s request for $1,960 in monetary sanctions consists of 4 hours in preparing the motions, and 6 hours in traveling to and appearing at the hearings at a rate of $175 an hour, plus two $60 filing fees. (Wilson Decl., ¶¶ 6, 8.) The Court finds this amount to be unreasonable because these motions are relatively simple and the hearings will take place in the same courthouse, in the same department, on the same day, concurrently. Rather, the Court finds $995 ($175/hr. x 5 hrs. plus two $60 filing fees) to be a reasonable amount of sanctions to be imposed against Plaintiff and Plaintiff’s counsel of record, jointly and severally, for their abuse of the discovery process.

The motions are GRANTED in part and DENIED in part.

Plaintiff is ordered to appear and testify at a deposition on September 4, 2019 at 10:30 a.m. or within 30 days of this order on a mutually agreeable date.

Plaintiff and Plaintiff’s counsel of record are ordered to pay Moving Defendant $995 within 30 days of this order, jointly and severally.

Moving Defendant is ordered to give notice of this ruling.