Case Number: BC536255 Hearing Date: July 02, 2014 Dept: 34

Moving Party: Plaintiff Peter Dille (“plaintiff”)

Resp. Party: Defendant Darrell G. Winfrey (“Winfrey” or “defendant”)

Plaintiff’s motion to deem the requests for admission served on defendants Winfrey and Alexander to be admitted is DENIED.

BACKGROUND:

Plaintiff commenced this action on 2/13/14 against defendants for: (1) fraud; (2) negligent misrepresentation; (3) breach of oral contract; (4) conversion; and (5) common count for money had and received. In August 2011 plaintiff received a phone call from Winfrey asking if plaintiff wanted to invest in building a studio that would be rented out for various uses. (Compl., ¶ 14.) Plaintiff then met with defendants at the place where the studio would be built and Winfrey made representations about the studio and its profits. (Id., ¶¶ 17-20.) Plaintiff then gave defendant Alexander $25,000.00 in exchange for a 40% partnership in the studio venture. (Id., ¶¶ 23-24.) After plaintiff requested a refund of his check, defendant returned the $25,000.00 check to plaintiff. (Id., ¶¶ 25-26.) Winfrey then represented that plaintiff could invest $12,500.00 in exchange for a 50% ownership in the venture, and plaintiff agreed and wrote a check for $12,500.00. (Id., ¶ 27.) Following this initial investment, Winfrey continued to solicit additional funds from plaintiff for various expenses. (Id., ¶¶ 28-29.) By February 27, 2012, plaintiff had invested approximately $100,820.00 with defendants for various improvements to equipment. (Id., ¶ 30.) Plaintiff alleges that the improvements have not been made, the funds were not used as defendants represented they would be used, and the studio was never built and has never generated income. (Id., ¶¶ 31-33.) Defendants have kept plaintiff’s money despite his requests for them to return the money. (Id., ¶ 34.)

ANALYSIS:

Plaintiff requests that the truth of the matters specified in the requests for admissions served on defendants Darrell D. Winfrey and Monica Alexander be deemed admitted.

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “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 monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Weil & Brown, ¶ 8:1375.)

Plaintiff’s counsel, Parag L. Amin, declares that requests for admissions were propounded upon defendants on 4/1/14. (Amin Decl., ¶¶ 2-5, Exhs. 1, 2.) Amin declares that defendants have not served responses and that the time to respond concluded on 5/6/14. (Id., ¶ 7.)

In the opposition, defendants – who are in pro per – state that they sent discovery responses by facsimile and FedEx on 6/6/14, and that plaintiff’s counsel received these responses. Although there is no evidence (e.g., no declaration under penalty of perjury) presented with the opposition, plaintiff admitted in court on June 18, 2014 that he had received the responses.

Plaintiff filed his motion on June 9, 2014. Thus, it appears that plaintiff received the responses prior to filing his motion. Yet nowhere in his motion – or in any supplemental pleading – does plaintiff indicate that the motion is moot. The Court is aware that the motion and accompanying declaration were signed on June 4, 2014 – before plaintiff received defendants’ responses. Nonetheless, the motion wasn’t filed until June 9, three days after receiving the responses. By the time plaintiff filed his motion, some of the statements counsel made under penalty of perjury – in particular, the assertion that defendants had not responded – were no longer true. (See Declaration of Amin, ¶ 7.)

Plaintiff’s motion to deem requests for admission to be admitted is DENIED. The gravamen of the motion is that defendants had not responded to the requests of admission. By the time the motion was filed, this was simply false. Plaintiff’s motion appears to have been unnecessary and at least certain statements in counsel’s declaration were false – and known by counsel to have been false – when the motion was filed. The Court would be interested in hearing from plaintiff’s counsel why it should not set an OSC re sanctions for filing a frivolous motion and misleading the court.