Case Number: BC720409 Hearing Date: November 22, 2019 Dept: 47

State Farm Automobile Insurance Company v. Noe Gaona, et al.

MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS IN REQUEST FOR ADMISSIONS, SET ONE, SERVED ON DEFENDANT AND CROSS-COMPLAINANT JOSE LUIS ACOSTA; REQUEST FOR AN AWARD OF SANCTIONS IN THE SUM OF $760.00

MOVING PARTY: Plaintiff/Cross-Defendant State Farm Mutual Automobile Insurance Company

RESPONDING PARTY(S): Defendant/Cross-Complainant Jose Luis Acosta

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff insurance company alleges that its insured defendants and defendant claimant misrepresented the circumstances of a claimed accident, such that there is no coverage for the claimed losses.

Plaintiff moves for an order deeming facts admitted in its request for admissions, set one, and for sanctions.

TENTATIVE RULING:

Plaintiff State Farm Mutual Automobile Insurance Company’s motion for an order deeming the truth of facts admitted in request for admissions, set one, served on Defendant and Cross-Complainant Jose Luis Acosta is DENIED AS MOOT, given that Defendant has now served verified responses.

Plaintiff’s request for sanctions, which are mandatory (CCP § 2033.280(c)), is GRANTED IN PART in the amount of $585.00 against defense counsel the Krass Law Firm only. Sanctions are to be paid to Plaintiff’s counsel within 30 days.

DISCUSSION:

Motion To Deem Matters Admitted – Requests for Admission (Set One)

When a party to whom requests for admission are directed fails to respond, the party propounding the requests may move for an order that the truth of any matters specified in the requests be deemed admitted. (CCP § 2033.280(b).) “The court shall make this order [deem the requests admitted], unless it finds that the party to whom the request for admissions 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.[1]” (CCP § 2033.280(c).)

Plaintiff’s requests for admission (set one) were served on June 4, 2019, and Defendant’s responses were due by July 9, 2019. (Declaration of Julie R. Beaton ¶¶ 9-10.) On July 22, 2019, Plaintiff wrote to Defendant and offered an extension through July 31, 2019, to serve verified responses without objection. (Id. ¶ 11 & Exh. 2.) Defendant did not serve any responses before this motion was filed. (Id. ¶ 11.)

Defendant’s counsel declares that he “prepared and served” responses to this set of RFAs “on the same date as the other responses” to Plaintiff’s other discovery requests and “asserted the same Fifth Amendment Objection.” (Declaration of Louis Krass ¶ 41.) Defendant’s counsel also attached a response and objections to the RFAs dated July 2, 2019, to his declaration. (Krass Decl. Exh. 3.) This exhibit includes no proof of service, however, and there is no indication in Defendant’s opposition – much of which is devoted to information irrelevant to this motion – that Defendant ever responded to Plaintiff’s July 22 letter, as he would have been expected to respond if he had already served responses to the RFAs three weeks earlier: namely, to inform Plaintiff that no extension was necessary and that a motion to deem the RFAs admitted would be inappropriate because they had already been served.

On September 25, 2019, the original hearing date for this motion, the Court continued the motion and ordered Defendant to serve supplemental code-compliant responses, without objection, by October 23, 2019. Defendant did so on October 23, 2019. Accordingly, the motion is DENIED AS MOOT.

Plaintiff’s request for sanctions, which are mandatory (CCP § 2033.280(c)), is GRANTED IN PART in the amount of $585.00 against defense counsel the Krass Law Firm only. (3 hours @ $175/hr. Plus $60 filing fee.) The failure to provide responses is fairly attributable to Defendant’s counsel, but there is no indication that the client is responsible for the failure of its counsel to prepare the responses. Sanctions are to be paid to Plaintiff’s counsel within 30 days.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 22, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court