Alexandra Achilli, et al. v. Esequiel “Paul” Garcia, et al.		CASE NO. 110CV166426
DATE: 19 September 2014	TIME: 9:00	LINE NUMBER: 2

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 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 September 2014, the motion of Plaintiff Alexandra Achilli to deem Requests for Admissions, Sets One and Two admitted by Defendant Miguel Chaidez was argued and submitted.

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

I.       Statement of Facts.

As alleged, Defendant Esequiel “Paul” Garcia conspired with and hired Defendants Daniel Chaidez, Miguel Chaidez, Lucio Estrada, and Robert Jacome to kill Mark Achilli. On the morning of 14 March 2008, Lucio Estrade shot and killed March Achilli outside his home. Each of the Defendants was convicted of crimes arising from the incident. Plaintiff is Mark Achilli’s daughter and successor in interest.

On 12 March 2010, Plaintiff filed a complaint against Defendants alleging (1) wrongful death, (2) intentional wrongful death, (3) willful misconduct, (4) negligence, (5) assault, and (6) battery. Default judgments have been granted against Defendants Daniel Chaidez, Lucio Estrada, and Robert Jacome.

II.      Discovery Dispute.

On 9 May 2011, Plaintiff served Requests for Admission, Set One on Defendant. Defendant responded only with a letter stating he would not respond to any “forms” until Santa Clara County provided him with counsel. Santa Clara County denied his request for counsel. Defendant never responded to this set of requests for admission.

On 5 December 2013, Plaintiff served Requests for Admission, Set Two on Defendant. Defendant never responded to this set of requests for admission.

On 19 August 2014, Plaintiff filed the instant motion to have the matters in the Requests for Admission deemed admitted.

 

III.     Analysis.

A.  Motion to have Matters Deemed Admitted

Code of Civil Procedure, § 2033.280 states:

“If a party to whom requests for admissions are directed failed to serve a timely response, the following rules may apply:

(a) The party to whom the requests for admissions are directed waives any objection to the requests, including one based on privilege or on the protection for work product. . . .”

(b) The requesting party may 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 sanctions under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Section 2033.220.  It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

Plaintiff served Requests for Admission, Set One on Defendant on 9 May 2011. Responses were due 13 June 2011. Defendant’s response consisted of a letter stating that until Santa Clara County granted him counsel, he would not respond. Santa Clara County denied Mr. Chaidez’s request for an attorney for the civil matter. Mr. Chaidez did not respond to Set One. An order deeming the matters admitted is appropriate.

Plaintiff served Requests for Admission, Set Two on Defendant on 5 December 2013. Responses were due 10 January 2014.[2] Mr. Chaidez did not respond to Set Two. An order deeming the matters admitted is appropriate.

Plaintiff’s motion to have the matters addressed in Requests for Admission, Sets One and Two is GRANTED. Each Request for Admission in the sets is ADMITTED.

         B.  Sanctions.

Plaintiff makes a request for monetary sanctions.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  See Rule of Court 2.30.

The request is code-compliant.

Plaintiff seeks relief under sections 2023.030(a) and 2033.280(c). Section 2023.280(c) mandates sanctions against a party whose lack of response necessitated the motion before the Court.

Counsel declares that his hourly rate is $400.00. This is a reasonable rate within Santa Clara County. He further declares that he spent 3 hours researching and preparing the motion to compel and the declaration.[3] This is a reasonable period of time to draft and file this motion. The Court will award sanctions to reimburse counsel’s time.

Counsel also declares that he incurred fees, including a filing fee and court reporter fee, in the amount of $90.00. This is also a reasonable expense and will be awarded.

Counsel seeks reimbursement for the preparation of a reply and attendance at a hearing. In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).

A reply was never filed in this matter, nor was one necessary since Mr. Chaidez did not oppose. A Notice of Non-Opposition was filed, but this was not necessary for the motion, and the declaration speaking to hours was written prior to the notice. It is also uncertain whether attendance at a hearing is required. The Court will not grant speculative awards. Should a hearing be necessary, counsel is free to address the issue at that time.

Plaintiff’s request for monetary sanctions against Defendant Miguel Chaidez is GRANTED IN PART in the amount of $1290.00.[4] Defendant shall pay this amount to Plaintiff’s counsel within 20 days of the date of this order.

IV.     Order.

Plaintiff’s motion to have the matters addressed in Requests for Admission, Sets One and Two is GRANTED. Each Request for Admission in the sets is ADMITTED.

Plaintiff’s request for monetary sanctions against Defendant Miguel Chaidez is GRANTED IN PART in the amount of $1290.00. Defendant shall pay this amount to Plaintiff’s counsel within 20 days of the date of this order.

 

 

________________­­­____________ DATED:

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

 

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[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] Plaintiff states that the responses were due on 14 June 2014. The Court does not know whether this was a typographical error or if an extension was granted. Because Mr. Chaidez never responded, whichever date was the actual due date does not alter the analysis.

[3] Counsel also refers to a separate statement, but that is neither necessary for the instant motion nor was it included.

[4] 3 hours x $400 per hour + $90 fees.