Case Number: 19STCV08753 Hearing Date: November 20, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

adah trujillo,

Plaintiff,

v.

Lukasz Swistun, M.D.,

Defendant.

Case No.: 19STCV08753

Hearing Date: November 20, 2019

[TENTATIVE] order RE:

motion to compel discovery responses

Plaintiff Adah Trujillo (“Plaintiff”) moves to deem admitted matters specified in Requests for Admissions, Set Two (“RFAs”) served on Defendant Lukasz Swistun, M.D. (“Defendant”). Plaintiff served the RFAs on Defendant by mail on August 28, 2019. Plaintiff granted Defendant an extension of time to respond to October 16, 2019. As of the filing date of this motion, Plaintiff had not received responses from Defendant. Defendant’s counsel represents that responses were served on November 6, 2019, after the motion was filed.

Where a party fails to respond to requests for admissions, 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 Court “shall” grant a motion to deem admitted the matters specified in the 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).) As Defendant has now served responses, the motion is moot except as to sanctions.

Plaintiff seeks sanctions in connection with this motion. The Court concludes that Defendant’s failure to timely respond to the discovery is an abuse of the discovery process and awards sanctions. Defendant’s counsel admits that the untimely responses were the result of his failure to calendar the due date for the responses. Accordingly, the Court imposes sanctions against Defendant’s counsel (but not Defendant) in the amount of $560, based upon two hours of attorney time at $250 per hour to prepare the motion, plus a filing fee of $60. However, the Court will not order greater sanctions because the record suggests that Plaintiff’s counsel could have resolved the issue informally after the motion was filed, but did not do so.

In opposition, Defendant argues that the Court cannot impose sanctions, because Plaintiff did not cite the authority for sanctions in the notice of motion. Defendant is incorrect. Plaintiff cites Code of Civil Procedure section 2033.280 in the notice of motion, which provides the authority for sanctions. (See Code Civ. Proc., § 2033.280, subd. (c).) Plaintiff also includes the type of sanctions Plaintiff seeks and the persons against whom Plaintiff seeks sanctions, as required. (Code Civ. Proc., § 2023.040.) Plaintiff’s request for sanctions is procedurally proper.

CONCLUSION AND ORDER

Plaintiff’s motion to deem admitted is granted as to sanctions. Defendant’s counsel of record is ordered to pay monetary sanctions in the amount of $560 to Plaintiff, by and through counsel, within thirty (30) days of notice of this order. The motion is otherwise moot. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 20, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court