Case Number: MC023685 Hearing Date: May 01, 2014 Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

SHINE KHALIFA and ABUBAKR )
KHALIFA, ) Case Number MC 023685
)
Plaintiff, ) ORDER AFTER HEARING
)
v ) Date of Hearing:
) May 1, 2014
BUFFETS, INC., a Minnesota ) Dept. A-11
Corporation; SILVER KING ) Judge Randolph A. Rogers
REFRIGERATION, LLC, a Delaware )
Limited Liability Company; and DOES )
1 through 100, inclusive, )
)
Defendants. )
____________________________________)

The motion of Defendant Silver King Refrigeration, LLC for order establishing admissions and sanctions came on for hearing on May 1, 2014. Plaintiffs Shine Khalifa and Abubakr Khalifa appeared through their counsel of record, ____________________. Defendant Silver King Refrigeration, LLC appeared through its counsel of record, _____________________. Defendant Buffets, Inc. appeared through its counsel of record, _____________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Defendant Silver King Refrigeration, LLC for order establishing admissions is DENIED; provided, however, Plaintiff shall serve verified responses to the Requests for Admission on or before May 16, 2014.

Plaintiff is further ORDERED to pay Defendant sanctions of $2,460.

SO ORDERED this the _____ day of May, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

SHINE KHALIFA and ABUBAKR )
KHALIFA, ) Case Number MC 023685
)
Plaintiff, ) ORDER AFTER HEARING
)
v ) Date of Hearing:
) May 1, 2014
BUEFFETS, INC., a Minnesota ) Dept. A-11
Corporation; SILVER KING ) Judge Randolph A. Rogers
REFRIGERATION, LLC, a Delaware )
Limited Liability Company; and DOES )
1 through 100, inclusive, )
)
Defendants. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. This is a personal injury case arising from an incident on September 8, 2010, where a door of a milk refrigeration and dispenser unit in a Hometown Buffet restaurant disengaged and fell on Plaintiff Shine Khalifa, causing injury.

2. On August 27, 2012, Plaintiffs filed suit for premises liability, products liability, and loss of consortium against the restaurant and the manufacturer of the machine in question.

3. Defendant Silver King Refrigeration filed its answer on January 10, 2013. Defendant Buffets, Inc. filed for bankruptcy in the federal Bankruptcy Courts sometime in January 2012, and pursuant to the bankruptcy plan confirmed by the federal Bankruptcy Court on June 27, 2012, all lawsuits where liability arose before January 2012 were to be resolved through a litigation trust.

4. The suit was initially set for a trial date of February 27, 2014, but by stipulation of the parties, was continued to August 7, 2014.

5. On April 1, 2014, Defendant Silver King Refrigeration, LLC, brought the current motion to establish admissions and for sanctions.

6. Plaintiffs filed their opposition on April 11, 2014.

7. Discussion – A party may obtain discovery by a written request that the other party admit “the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” CCP § 2033.010. Within 30 days after service of the requests for admissions, the party to whom the requests are directed “shall respond in writing under oath separately to each request.” CCP §§ 2033.210 and 2033.250. “Unsworn responses are tantamount to no responses at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.

8. If a party fails to file a timely response to requests for admission, “[t]he requesting party may move for an order that the . . . truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . . . [¶] The court shall make this order, 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. It 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.” CCP §2033.280, subds. (b), (c).

9. Defendant contends that the Requests for Admissions (“RFAs”) were first served on Plaintiffs October 15, 2013, as evidenced by the proof of service. Motion, Exhibit 2. Further, on March 3, 2014, Defense counsel Levin & Hoffmann, LLP (“Levin”) wrote to Plaintiff’s counsel Law Office of David Kashani (“Kashani”) requesting responses for the unanswered RFAs, including a copy of the RFAs, by facsimile. Motion, Exhibit 3. Based on these facts, Defendant urges that §2033.280 applies.

10. In reply, Plaintiff contends that they have never received the “actual Requests for Admission or the letter of March 3, 2014 by regular U.S. mail.” Opposition, Declaration of David P. Kashani at ¶4. In addition, Plaintiff notes that there was no agreement to effectuate service by fax between the parties. As such, Plaintiff argues that the RFAs should not be deemed admitted, and sanctions are not in order.

11. The address listed for Kashani in the opposition is “8200 Wilshire Boulevard., Suite 400, Beverly Hills, California 90211.” This is inconsistent with the address listed in Defendant’s proof of service. Motion, Exhibit 1. It is also inconsistent with the address provided on Plaintiffs’ 2012 Complaint. In addition, there is also some past history that notices did not reach Kashani properly. See March 21, 2013 Case Management Statement at page 5 (“Plaintiffs claim not have (sic) received notice of the [bankruptcy of Defendant Buffets]).

12. In light of this discrepancy and Mr. Kashani’s declaration under penalty of perjury that neither he nor the Plaintiffs received the RFAs by mail, it would work a significant injustice upon the Plaintiffs to deem their failure to respond as admissions.

13. Accordingly, the motion of Defendant Silver King Refrigeration, LLC for order establishing admissions is DENIED; provided, however, Plaintiff shall serve verified responses to the Requests for Admission on or before May 16, 2014.

14. Sanctions – Under CCP §2023.030, the court may impose monetary sanctions against anyone engaging in the misuse of the discovery process. Attorneys “who fail to extend common courtesies to their opposition . . . must be sanctioned appropriately.” Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 (disapproved on other grounds by Garcia v. McCutchen (1997) 16 Cal.4th 469).

15. Plaintiffs do not deny that they received the facsimile transmissions by the Defendant. Certainly, the absence of a written agreement to accept service by facsimile defeats Defendant’s request for deemed admissions. Nevertheless, the receipt of Levin’s transmissions should have notified Plaintiff that the RFAs were sent, though apparently never received. While Plaintiff is correct in stating that these circumstances meant they were under no obligation to respond to the RFAs, an exercise of reasonable prudence would have prompted Plaintiff to contact Defendant about the evaporating RFAs.

16. Defendant notes, however, that the March 3, 2014 facsimile letter from Levin to Kashani was also met with complete silence. Plaintiff does not contest this, simply stating that “Plaintiffs are under no obligation to respond.” Opposition at 5:11-12. Indeed, Plaintiff apparently never deemed it appropriate to inform Levin that they never properly received the RFAs, or the facsimile transmission, for that matter.

17. In the absence of communication from Plaintiff, Defendant assumed, reasonably, that Plaintiffs did not intend to respond to the RFAs and filed the present motion. While these circumstances would make establishing the RFAs as deemed admissions somewhat draconian, Plaintiff cannot claim absolution of culpability. The simplest of courtesies on the part of Plaintiff, or a cursory attempt at investigation, would have rendered the present motion entirely unnecessary. As such, Defendant is entitled to recover the costs of bringing the present motion.

18. Defendant is entitled to recover the $60 fee for the motion. As to the attorney’s fees, Defendant claims a total of ten (10) hours (4 in efforts to secure compliance and prepare the motion and 6 to prepare the reply, prepare for oral argument, and attend the hearing), at $300 per hour, amounting to $3,000. Defendant should not recover costs for efforts to secure compliance considering Plaintiff never received the RFAs. However, efforts associated with bringing the motion can be recovered. As such, Defendant may recover eight (8) hours (2 for preparing the motion and a further 6 for preparing the reply and oral arguments, and attending the hearing) at $300 per hour, totaling $2,400.

19. Accordingly, Plaintiff is ORDERED to pay Defendant sanctions in the amount of $2,460.00 for reasonable attorney’s fees and costs.

SO ORDERED AND ADJUDGED this the ______ day of May, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE