| Zendejas Andrade v. Safeway Stores | CASE NO. 112CV223877 | |
| DATE: 19 December 2014 | TIME: 9:00 | LINE NUMBER: 5 |
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 December 2014. Please specify the issue to be contested when calling the Court and counsel.
On 19 December 2014, the motion of Plaintiff-In-Intervention Amguard Insurance Company (“Amguard”) for relief from the “deemed admitted” order made by this Court on 20 Octoberr 2014 was argued and submitted.
Defendant-In-Intervention Building Power, LLC filed formal opposition to the motion.
All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.” Rule of Court 3.1345(d).
- Statement of Facts.
On 24 June 2010, Plaintiff Zendejas Andrade was injured while he was on the roof of a Safeway store performing roof repair work. Plaintiff dismissed his complaint against Safeway stores.
Amguard is the workers compensation carrier for Mr. Zendejas Andrade’s workers comp carrier. Amguard intervened in this lawsuit to recover workers compensation and benefits paid to him. Building Power, LLC performed roof inspections for Safeway, including the subject store.
- Discovery Dispute.
This Court understands the facts leading up to the present motion as follows:
On 19 June 2014, counsel for Building Power, LLC served its form interrogatories, set one, request for production of documents, set one and requests for admissions, set one, upon Amguard. The requests totaled four in number. The requests were served by first-class mail.
On 22 July 2014, Amguard’s responses to the foregoing discovery requests for admissions were due.
On 17 September 2014, Building Power, LLC filed two motions to compel responses to the two sets of interrogatories and to deem the requests for admissions to be admitted. At the same time, Building Power, LLC filed its motion to compel Amguard to provide responses to its form interrogatories, set one, and production of documents, set one and for monetary sanctions. Both motions were calendared for 17 October 2014.
On 25 September 2014, Amguard served its responses to the four requests for admissions.[1] Responses 1-3 were unqualified denials. Response 4 was an unqualified admission.
On 26 September 2014, Amguard served its responses to the two sets of interrogatories.
On 3 October 2014, Amguard file opposition to both motions indicating that the matters were moot because responses to the three sets of outstanding discovery had been served on 26 September 2014.
On 10 October 2014, Building Power, LLC filed reply papers in both matters. The reply papers acknowledged receipt of the responses to the two sets of interrogatories but neglect to mention that the responses to their requests for admissions had also been received. The reply papers to both motions raised the issue of monetary sanctions.
On 17 October 2014, the matter was duly called by Judge Ritchie in this Department’s absence. Counsel for Amguard appeared telephonically and there were no other appearances by any other party, including moving party Building Power, LLC. Judge Ritchie granted the motion of Building Power, LLC to compel responses to the two sets of interrogatories. She also granted the motion for an order deeming the requests for admissions to be admitted.[2]
The current motion for relief from the order deeming their requests for admissions to be admitted is the only matter that this Court will address.
III. Analysis.
- The “Deemed Admitted” Motion.
The party to whom requests for admission have been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (Code Civ. Proc., §§ 2033.250, 2033.260.) An additional 5 calendar days are added if the discovery is served by mail within California. (Code Civ. Proc., § 1013, subd. (a).)
If the party to whom requests for admissions are directed fails to serve a timely response, that party waives any objection to the requests. (Code Civ. Proc., § 2033.280, subd. (a).)
In addition, the propounding party may move for an order that the truth of any matters specified in those requests be deemed admitted.[3] (Code Civ. Proc., § 2033.280, subd. (b).) “The court shall make this order unless it finds that, prior to the hearing on the motion, the responding party served a proposed response that is substantially code-compliant.) (Code Civ. Proc., § 2033.280, subd. (c) (emphasis added); see also Tobin v. Oris (1992) 3 Cal.App.4th 973, 983.)
Here, Amguard’s responses to the RFA consist solely of unqualified denials. (Id.) Thus, the responses were substantially code-compliant (Code Civ. Proc., § 2033.220, subd. (b)), which is all that is required to defeat a motion to deem matters admitted. (See Tobin v. Oris (1992) 3 Cal.App.4th 814, 828.)[4]
This Court has yet to see any statement by Building Power, LLC disputing that the responses to the requests for admissions were served by Amguard prior to the hearing of the motion on 17 October 2014.
The motion of [MOVING PARTY] to [DESCRIBE MOTION] is GRANTED/DENIED. Plaintiffs shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.
- The Effect of Judge Richie’s Order.
This Court cannot overrule Judge Ritchie. “[T]he general rule is that one superior court judge may not overrule another. If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.” (People v. Garcia (2006) 147 Cal. App. 4th 913, 916-917.)
Sanctions.
Deferred.
- Order.
This Court expects that the parties should be able to work this matter out between them without further intervention by the Court.
Should either party decide to contest this matter further, this Court orders the following:
- Both counsel are to appear in person.
- The parties are to aid this Court in its determination of the matter by consideration of the following:
- Recalendar this matter with Judge Ritchie for her determination/reconsideration (Le Francois v. Goel (2005) 35 Cal. 4th 1094; or
- Agree that this Court may act in excess of jurisdiction and change Judge Ritchie’s order;
.
| ____________________________
DATED: |
_________________________________________________
HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] The proof of service to the responses is dated 25 September 2014. In the declaration of Mr. Leach and in the memorandum of points and authorities in opposition, the date is stated as 26 September 2014.
[2] The formal order was filed on 20 October 2014. Concerning the motion directed to the form interrogatories and requests for production, as this Court reads the order it is unclear that the motion concerning the form interrogatories was granted as there was no period of time specifying when Amguard was required to provide responses. The order does not mention the requests for production of documents at all.
[3] There is no limitation period or meet and confer requirement for bringing a motion to deem matters admitted. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (Id.)
[4] “Under section 2033, subdivision (k), the court is required to grant a deemed admission motion unless a proposed response is served before the hearing on that motion. (Courtesy Claims Service, Inc. v. Superior Court (1990) 219 Cal.App.3d 52, 55-56].) What the statute does not say, but obviously implies, is that where a proposed response is served prior to the hearing (and there is no finding that the “substantial compliance” requirement has not been met), then the motion may not be granted. Thus, under the statute, a motion to have admission requests deemed admitted may not be granted where the record establishes, as it does in this case, that (1) proposed responses to the requests have been served prior to the hearing on the motion and (2) such responses are in substantial compliance with the provisions of section 2033, subdivision (f)(1).) (Tobin v. Oris (1992) 3 Cal. App. 4th 814, 828.)
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