American Express Centurion Bank v. Syrus Mirzaei, et al. CASE NO. 113CV252552
DATE: 19 June 2014 TIME: 9:00 LINE NUMBER: 17
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 Wednesday June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of Plaintiff American Express Centurion Bank (hereinafter American Express) to Deem Matters Admitted and for monetary sanctions was argued and submitted. Defendant Syrus Mirzaei did not file formal opposition to the motion.

This matter was originally calendared for 9 May 2014. On the day of the hearing, and after the tentative ruling was duly posted on the Internet, a stipulation to continue the matter was presented to this Court without any advance notice to this Department.

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

CASE BACKGROUND

Defendant, Syrus Mirzael was issued an American Express “Blue from American Express” card. The purpose of the card was to obtain goods, services, and cash advances from businesses that accept the card. Defendant Syrus Mirzael agreed to pay for all of the charges incurred as a result of the extension of credit by Plaintiff to Defendant at the time he applied for said card and utilized it to make purchases.

Defendant acquired a debt of $39,844.62 by not paying for charges and cash advances. Plaintiff has demanded that the debt be paid, but the Defendant has failed to pay the outstanding balance of $39,844.62 which has been demanded since July 9, 2013.

DISCOVERY DISPUTE

On November 7, 2013, Plaintiff propounded a Request for Admissions, Set One on Defendant. Defendant failed to respond to discovery in a timely manner.

On December 26, 2013, Plaintiff mailed a Meet and Confer letter to Defendant. In the letter, Counsel for Plaintiff notified Defendant that if they do not receive responses, without objections, on or before January 6, 2014, they will make a motion to deem their requests for admissions admitted and seek monetary sanctions. Defendant again failed to respond to the discovery, and Plaintiff filed this motion.

DISCUSSION

1. Motion to Deem Matters Admitted

Plaintiff American Express sent Defendant Syrus Mirzael a Request for Admissions signed by counsel on November 6, 2013. The Proof of Service for the Request is dated November 11, 2013. Counsel for Plaintiff cites California Civil Procedure §2033.250 which states “[w]ithin 30 days after service of requests for admissions, the party to whom the requests are directed shall serve the original of the response to them on the requesting party…”

Since more than 30 days have passed since the Request was served, this Court finds that the Defendant failed to serve a timely response. Counsel for Plaintiff also cites California Civil Procedure §2033.280 which 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 under Chapter 4 (commencing with Section 2018.010)….

(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.

The Motion to Deem Matters Admitted is GRANTED.

2. Monetary Sanctions

Plaintiff American Express makes a request for monetary sanctions in the amount of $840.00. The request is code-compliant. 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.

Since Plaintiff American Express has abided by Code of Civil Procedure § 2023.040, they are entitled to monetary sanctions. In addition, Counsel for Plaintiff points out that Defendant’s failure to respond is a misuse of the discovery process by citing California Civil Procedure §2023.010 (d): Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery.

Finally, sanctions are warranted in this case because in California Civil Procedure §2033.280 makes it mandatory to impose monetary sanctions when a party fails to serve a timely response to a Request for Admissions.

Code of Civil Procedure, § 2033.280 (c) states that “. . . .[i]t 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.”

Although sanctions are clearly warranted in this case, this Court will not award sanction in the amount of $840.00. Instead the Court will award sanctions in the amount of $390.00. This court must overlook the fees incurred by attending 1.5 hours of hearing because sanctions are only awarded for expenses actually incurred and not for anticipated costs. Tucker v. Pacific Bell Mobile Services, (2010) 186 Cal. App. 4th 1548, 1551. The Court will award 1.0 hours of reasonable attorney’s fees for the preparation of this motion in the amount of $300. The court will also award Plaintiff the $90.00 incurred in Court costs.

The Motion for Monetary Sanctions is GRANTED. Defendant Syrus Mirzaei shall pay monetary sanctions in the amount of $390.00 to Plaintiff within 20 days of this order.

Conclusion

The Motion to Deem Matters Admitted is GRANTED.

The Motion for Monetary Sanctions is GRANTED. Defendant Syrus Mirzaei shall pay monetary sanctions in the amount of $390.00 to Plaintiff within 20 days of this order.