Kwan v. Dihn		CASE NO. 114CV263245
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 23

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 Steve Kwan (“Plaintiff”) for an order deeming the truth of each matter specified in the request for admissions served on Defendant Trang Vu (“Defendant”) to be admitted and for monetary sanctions was argued and submitted.

Defendant did not file formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

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).

1. Statement of Facts.

Plaintiff filed this action for breach of contract and related claims on 3 April 2014.  The first amended complaint was filed on 14 May 2014.  Named as defendants are Joseph Dihn and Justin Stuyt (the latter defendant was not named in the original complaint.)

Plaintiff alleges that the two defendants are doing business as JCP Construction.  Plaintiff alleges that on 5 May 2013, he contracted with Defendants to construct improvements on property belonging to Plaintiff in the city of Cupertino.  The contract price was $199,999.99.  After Plaintiff paid almost 80% of the contract price, Defendants stopped working on the property in November of 2013.  The work that had been performed was substandard.

Defendant Stuyt answered the complaint on 1 August 2014.[3]  Defendant Trang Vu was served as Doe 1 on 4 August 2014.  He answered the complaint on 19 September 2014.  Apparently there is a warrant for the arrest of Defendant Dihn, whose whereabouts are unknown.

1. Discovery Dispute.

This motion was filed on 18 November 2014.

The papers allege that on 26 September 2014, Plaintiff serve the request for admissions upon Defendant Vu.  As of the date of the filing of the motion, no responses were received.  Counsel for Plaintiff declares that he attempted to contact counsel for Vu on two occasions after the response deadline had passed[4] but has never heard from this Defendant.

III.     Analysis.

1. Motion For Order Deeming The Truth Of Each Matter Specified In The Request For Admissions                               To Be Admitted.

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.  (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); see also Tobin v. Oris (1992) 3 Cal.App.4th 973, 983.)

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.)

Failure to timely respond to RFA does not result in automatic admissions.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) (“Weil & Brown”) at ¶8:1370.)  The propounder of the RFA must “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.”  (Id., citing Code of Civ. Proc. (“CCP”) § 2033.280(b).)  The Court should enter an order having the RFA be deemed admitted, “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.”  (CCP § 2033.280(c).)

“Under the provisions of [Code of Civil Procedure, § 2033.280(b) and (c)], a court must grant a motion to have admission requests deemed admitted where responses have not been served prior to the hearing or, if such responses were served, they were not in substantial compliance with section 2033, subdivision (f)(1).”  (citation omitted.)  It is no secret that “[t]he law governing the consequences for failing to respond to requests for admission may be the most unforgiving in civil procedure. . . . . But woe betide the party who fails to serve responses before the hearing. In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you’re out’ as applied to civil procedure.”  (emphasis in text) (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal. App. 4th 1546, 1551, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4^th 973, 983 (fn. 12).)

The motion of Plaintiff for an order deeming the truth of each matter specified in the request for admissions, set one, to be admitted is GRANTED.

1. Sanctions.

Code of Civil Procedure section 2033.280, subdivision (c) states that it is “mandatory that the court impose a monetary sanction [. . .] on the party or attorney, or both, whose failure to serve a timely response [. . .] necessitated this motion.”

In the supporting declaration, counsel for Plaintiff  states that he spent three hours preparing the motion and his colleague spent one hour.  This Court believes that it should have taken no more than two hours for the preparation of this motion and will therefore award $540 in attorneys fees.[5]

Plaintiff also seeks sanctions for time possibly spent arguing the motion. The Court does not grant speculative sanctions.  Sanctions should be awarded only for expenses actually incurred.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  If Defendant does orally argue before the Court, Plaintiff may bring up the issue of further sanctions at that time.

The request of Plaintiff for monetary sanctions is GRANTED.  Defendant Vu and his counsel are ordered to pay the sum of $540 to counsel for Plaintiff within 20 days of the date of the filing of this Order.

1. Order.

The motion of Plaintiff for an order deeming the truth of each matter specified in the request for admissions, set one, to be admitted is GRANTED.

The request of Plaintiff for monetary sanctions is GRANTED.  Defendant Vu and his counsel are ordered to pay the sum of $540 to counsel for Plaintiff within 20 days of the date of the filing of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[3] In his case management statement filed on 19 August 2014, this defendant states that he is a third party who was not a contract signatory nor was he involved in any misappropriation of money in connection with the construction project.

[4] While meeting and conferring is not required for a motion to compel initial responses, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  The Court has concerns when there does not appear to be any effort to resolve discovery issues without Court intervention. See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.  Plaintiff’s counsel did not set forth the dates of contact, although it is a better practice to do so.

[5] Plaintiff did not give notice of a claim to seek recovery of the $90 filing fee for this motion and therefore this sum cannot be awarded.