Case Number: EC065598 Hearing Date: June 08, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 12

Date: 6/8/18

Case No: EC 065598 Trial Date: August 13, 2018

Case Name: Hilton v. Malek, et al.

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED

(CCP §2033.280(b), 2023.010 et seq)

Moving Party: Plaintiff Constance Hilton

Responding Party: Defendant Maria Malek

RULING:

Motion to Deem Documents Genuine and the Truth of Matters Admitted in Requests for Admissions, Set One: The court WILL NOT CONSIDER the motion as it is untimely, having been filed and set to be heard beyond the 15th day before the date initially set for the trial of the action. The order continuing trial in this matter did not reopen discovery beyond that agreed to by the parties in their written stipulation submitted to the court, pursuant to which discovery was reopened only to conduct two depositions, those of plaintiff Constance Hilton and defendant Maria Malek, with companion document production requests. The motion is denied without prejudice to a motion to re-open discovery.

Plaintiff’s request for monetary sanctions is DENIED at this time without prejudice.

Were the court to grant a motion to re-open discovery, which can be accomplished by ex parte application with briefing, the court would enter the following ruling:

Motion to Deem Documents Genuine and the Truth of Matters Admitted in Requests for Admissions, Set One, is GRANTED. Defendant has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The court therefore orders that all matters specified in the Requests for Admission, Truth of Facts and Genuineness of Documents, Set No. One, propounded by are deemed admitted as true and the documents admitted as genuine, pursuant to CCP § 2033.280(b) and (c). Monetary sanctions in the amount of $2,460.00 [$4,590 requested] are awarded against defendant Maria Malek, payable within 30 days. CCP sections 2033.280(c), 2023.010(d), 2023.030(a).

Or, if substantially compliant responses served prior to hearing:

Motion to Deem Documents Genuine and the Truth of Matters Admitted in Requests for Admissions, Set One, is denied. The court finds that defendant Maria Malek has served responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. However, mandatory monetary sanctions are awarded against defendant Maria Maled pursuant to CCP section 2033.280(c) (“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”). Monetary sanctions in the amount of $2,460.00 [$4,590 requested] are awarded against defendant Maria Malek, payable within 30 days. CCP sections 2033.280(c), 2023.010(d), 2023.030(a).

RELIEF REQUESTED:

Order that the genuiness of any documents and the truth of the matters specified in Requests for Admissions, Set One, are deemed admitted.

CHRONOLOGY

Date Discovery served: December 22, 2017

Extension to Respond to: March 1, 2018, without objection (Ex. H)

Date Responses served: NO RESPONSES SERVED

Date Motion served: April 24, 2018 Timely

ANALYSIS:

Procedural

The opposition primarily argues that the subject discovery is no longer viable, as the discovery cut off has expired.

The file shows that on February 27, 2017, the case was originally set for trial on February 26, 2018.

On February 9, 2018, the court heard an ex parte application to continue trial filed on behalf of defendant Malek. The court granted the request and continued the trial date to August 13, 2018. The minute order does not mention reopening discovery. The ex parte application indicates that the parties have “agreed to re-open discovery, pending court approval, to conduct two depositions with companion document production requests. The depositions to be conducted are of the Plaintiff Constance Hilton and the Defendant Maria Malek.” This language is reflected in a written stipulation of the parties filed with the court. There is no mention made of any other outstanding written discovery, including the RFAs which are the subject of this motion.

Under CCP § 2024.020:

“(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”

(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.”

Section 2024.050 provides a procedure for a party to bring a noticed motion for leave to complete discovery or have a discovery motion heard closer to the initial trial date or to reopen discovery after a new trial date has been set. This motion requires a meet and confer, and that the court take into consideration certain specified factors.

The last day to being a motion to compel discovery, other than that stipulated to by the parties, was accordingly 15 days prior to February 26, 2018, on February 11, 2018. The motion here was not filed until April 25, 2018. Plaintiff has not filed a noticed motion to reopen discovery.

Case law reiterates that the trial court may not consider an untimely discovery motion without first hearing and granting a proper motion for leave brought under Section 2024.050. Pelton-Shepard Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568. In Pelton-Shepard, the court addressed a situation like the one presented here, where a motion to compel had been brought to be heard beyond fifteen days before the date initially set for trial after the trial date had been continued. The court of appeal found that the trial court’s decision to consider and grant the untimely motion to compel was an abuse of discretion, analyzing the statutory scheme and reasoning:

“Here, the trial court’s discretion to hear [the] motion to compel was governed by section 2024.020, which provided that (1) the last day for Pelton-Shepard to have its motion to compel heard as a matter of right was October 31, 2005, and that (2) the postponement of the trial date did not ‘operate to reopen discover proceedings’ ‘except as provided in Section 2024.050′– that is except upon a successful motion for leave to reopen discovery. Moreover, under section 2024.050, subdivision (b), the trial court’s discretion to grant such a motion was not unfettered, but could be exercised only upon ‘taking into consideration any matter relevant to the leave requested, including, but not limited to ……the necessity and the reasons for the discovery’ and ‘the diligence or lack of diligence of the party seeking …the hearing of a discovery motion, and the reasons that…the discovery motion was not heard earlier.’”

Pelton-Shepard, at 1587-1588 (italics in original).

The court of appeal held that because the trial court had not required the moving party to file a motion for leave under section 2024.050, there was no indication on the record that it had considered the appropriate factors and appropriately exercised its discretion. The court of appeal concluded:

“By simply hearing the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances, the trial court transgressed the confines of the applicable principles of law and thereby abused its discretion.”

Pelton-Shepard, at 1588.

The same circumstances are presented here, no motion for leave has been filed, and the motion to compel will not be considered by the court.

Substantive

In the event the court recalls some other agreement with respect to the reopening of discovery, it appears that the February 9, 2018 order was entered before the deadline to bring a motion to compel had expired, and the following analysis is provided.

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions “waives any objection to the requests.” In addition, the requesting party may move for an order that “the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction….” CCP Section 2033.280(b). The code specifies that “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 request for admissions that is in substantial compliance with section 2033.220.” CCP section 2033.280(c).

In this case, requests for admissions were served on defendant on December 22, 2018. When no responses were served, plaintiff granted a unilateral extension of time to respond without objection to March 1, 2018. [Ex. H]. Defendant has failed to serve timely responses, and has therefore waived all objections. Plaintiff has filed a noticed motion requesting an order that the requests be deemed admitted as truth.

The opposition indicates that responses will be prepared prior to the hearing, but does not submit them with the opposition, so that the court is unable to confirm that the responses substantially comply with statute. Unless a satisfactory response is served before the hearing, the court must grant the motion, assuming discovery is re-opened.

Sanctions

With respect to Requests for Admissions, CCP section 2033.280(c) provides:

“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.”

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP section 2023.030(a), “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct….If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP §2023.030(a).

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant failed to respond to an authorized method of discovery and plaintiff has provided evidence that she has incurred expenses as a result of the conduct. The opposition makes an argument that there was some confusion with respect to defendant representing herself, and the status of outstanding discovery, but this does not appear to justify defendant basically ignoring without obtaining extensions of time the service of this discovery on three separate occasions. The court may determine that the confusion with the discovery cut off constitutes a justification for the delay, or may determine that under the circumstances, plaintiff should not have to bear the expense of having had to prepare this motion, particularly since the sanctions are essentially mandatory. If the court were to award sanctions, plaintiff requests $4,590, which is extremely high for a motion of this nature. 8.6 total hours are sought for meeting and conferring and drafting this motion at $300 hour, which seems very high. Some significantly reduced portion of the sanctions awarded will be awarded, assuming discovery is re-opened. The court would reduce sanctions as follows: 1 hour for meet and confer; 3 hours for drafting the motion, and 2 hours travel time for a total of 8 attorney hours for a total for attorney fees of $2,400.