Case Number: 195TLC00357 Hearing Date: February 06, 2020 Dept: 26

Bennet v. McKee, et al

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED; SANCTIONS

(CCP § 2033.280)

TENTATIVE RULING:

Defendant Scott Cummings McKee’s Motion to Deem Admitted Matters and for Terminating Sanctions is GRANTED in part and DENIED in part.

The Requests for Admission, Sets 1-4, served by Defendant on Plaintiff are DEEMED ADMITTED.

The Request for Terminating Sanctions is DENIED.

ANALYSIS:

From February to April 2019, Defendant Scott Cummings McKee (“Defendant”) served Requests for Admissions, Sets 1-4 on Plaintiff Curtis Victor Bennett. (Motion, McKee Decl., ¶2 and Exhs. A-C.) The last of the responses was due by May 16, 2019, but to date, no responses have been served. (Id. at ¶¶3-4.) As a result, Plaintiff filed the instant Motion to Deem the Truth of Matters Specified in Requests for Admissions to Defendant as Admitted and for Terminating Sanctions (the “Motion”) on December 30, 2019.

Deem Requests for Admission Admitted

Plaintiff has not provided verified responses to the discovery propounded by Defendant nor filed an opposition to the instant Motion. The responses were due at the latest by May 16, 2019. (Code Civ. Proc., § 2033.280.) There is no requirement for a prior meet and confer effort before a motion to deem requests for admission can be filed. (Code Civ. Proc., § 2033.280, subd. (c).) Further, the motion can be brought any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2033.280, subd. (c).) Based on the foregoing, Defendant is entitled to an order deeming the requests for admission admitted. (Code Civ. Proc., § 2033.280, subd. (b).)

Terminating Sanctions

Where a party engages in misuse of the discovery process, including failing to respond to an authorized method of discovery, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) However, ultimate discovery sanctions are only justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).)

Here, there is no showing that there has been willful violation of a discovery order, a history of abuse of the discovery process or evidence showing that lesser sanctions would not be effective. Instead, Defendant moves for dismissal of Plaintiff’s action as a terminating sanction on the grounds that one of the requests for admissions admits “that Plaintiff does not now have, and has never had any right to any recovery whatsoever from Defendant arising from Plaintiff’s Complaint.” (Motion, McKee Decl., Exh. C, Request No. 6.) There is no authority that terminating sanctions may be awarded based on an admitted request for admission. As noted above, terminating sanctions are awarded for persistent and willful abuses of the discovery process.

Conclusion

Defendant Scott Cummings McKee’s Motion to Deem Requests for Admission Admitted and for Terminating Sanctions is GRANTED in part and DENIED in part.

The Requests for Admission, Sets 1-4, served by Defendant on Plaintiff are DEEMED ADMITTED.

The Request for Terminating Sanctions is DENIED.

Moving party to give notice.