2016-00204441-CU-BT

Folsom Ready Mix-Anderson LLC vs. Randy David Barnes

Nature of Proceeding: Motion to Deem Matters Admitted (Folsom Ready Mix, Inc.)

Filed By: Finnerty, Kathleen E.

Plaintiff Folsom Ready Mix-Anderson LLC’s Motion for Order Deeming Requests for Admission (Sets 1, 2 and 3) Admitted is granted, unless defendant serves responses before the hearing that are in substantial compliance with CCP 2033.220.

If compliant responses are served before the hearing, the moving party shall inform the court clerk forthwith.

Plaintiff served three sets of requests for admission on the defendant. No responses were served within 30 days of the service of each separate request.

In opposition, defendant contends that the number of Requests for Admissions is excessive and that the Declaration of Finnerty served with each request does not justify serving more than 35 requests for admissions. However, any objections that defendant had to the requests were waived by failure to respond within 30 days. ” If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission 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). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” CCP 2033.280(c) (emphasis added) No motion is before the court seeking relief from waiver.

A noticed motion for protective order is the vehicle to challenge the representation in counsel’s declaration regarding the necessity to exceed thirty-five requests. [Code Civ. Proc. §§ 2033.080(a)- (b)(2); 2033.040(a).] Section 2033.080(a) requires a motion for protective order be made “promptly,” when requests for admission are made. “Promptly” means prior to the deadline for responses, or the objection is waived. (See Weil & Brown, Civil Procedure Before Trial, vol. 2, at 8:1304.1 (The Rutter Group 2017).) Barnes failed to file a motion for protective order prior to the response deadline. Thus, his untimely objections to the requests in his opposition, including any objections to the number of requests and counsel’s declaration regarding necessity of exceeding thirty-five requests, are waived. [Code Civ. Proc. § 2033.280(a) and Id.]

Sanctions are awarded to be paid in the reasonable mount of $537, which is one hour of the associate rate, .3 hour of Ms Finnerty’s time, plus $60 filing fee to be paid by Defendant David Barnes to plaintiff pursuant to CCP 2033.280(c).

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 4 2016-00204441-CU-BT

Folsom Ready Mix-Anderson, LLC vs. Randy David Barnes

Nature of Proceeding: Motion to Deem Matters Admitted (Folsom Ready Mix-Anderson, LLC)

Filed By: Finnerty, Kathleen E.

Plaintiff Folsom Ready Mix, Inc.’s Motion for Order Deeming Requests for Admission (Sets 1, 2 and 3) Admitted is granted, unless defendant serves responses to the requests before the hearing that are in substantial compliance with CCP 2033.220.

If compliant responses are served before the hearing, the moving party shall inform the court clerk forthwith.

Plaintiff served three sets of requests for admission on the defendant. No responses were served within 30 days of the service of each separate request.

In opposition, defendant contends that the number of Requests for Admissions is excessive and that the Declaration of Finnerty served with each request does not justify serving more than 35 requests for admissions. However, any objections that defendant had to the requests were waived by failure to respond within 30 days. ” If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission 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). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” CCP 2033.280(c) (emphasis added) No motion is before the court seeking relief from waiver.

A noticed motion for protective order is the vehicle to challenge the representation in counsel’s declaration regarding necessity to exceed thirty-five requests. [Code Civ. Proc. §§ 2033.080(a)- (b)(2); 2033.040(a).] Section 2033.080(a) requires a motion for protective order be made “promptly,” when requests for admission are made. “Promptly” means prior to the deadline for responses, or the objection is waived. (See Weil & Brown, Civil Procedure Before Trial, vol. 2, at 8:1304.1 (The Rutter Group 2017).) Barnes failed to file a motion for protective order prior to the response deadline. Thus, his untimely objections to the requests in his opposition, including any objections to the number of requests and counsel’s declaration

regarding necessity of exceeding thirty-five requests, are waived. [Code Civ. Proc. § 2033.280(a) and Id.]

Sanctions are awarded to be paid in the reasonable amount of $700 (two hours associate rate) plus $212.50 for 1/2 hour of Ms Finnerty’s time plus $60 filing fee for a total fee award of $972.50, to be paid by Defendant David Barnes to plaintiff pursuant to CCP 2033.280(c).

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.