Jeffrey Lee, et al. v. Maryanne Wong, et al.		CASE NO. 113CV254105
DATE: 11 September 2014	TIME: 9:00	LINE NUMBER: 10

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

1987) 201 Cal.App.3d 467, 472 n.1der of an individual’ any privacy objections should be set aside. pposed to policies held by thOn 11 September 2014, the motion[1] of Plaintiff Jeffrey Lee to deem have matters admitted and for monetary sanctions was argued and submitted. Defendant Maryanne Wong filed an opposition to this motion.

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

I.       Background

This matter arises out of a collection case. Plaintiff alleges that Defendant entered into a promissory note in the sum of $100,000 and failed to repay all monies owed. Defendant generally denies each allegation.

On 1 April 2014, Plaintiffs served discovery, including Requests for Admission, on Defendant. Defendant failed to respond to the Requests for Admission. On 13 May 2014, Plaintiff’s counsel sent a letter to Mr./Ms. Damien Rickert Law Offices stating that responses were due on 13 May 2014 and were therefore now late. On 8 August 2014, Plaintiff filed the instant motion to have the matters in the Requests for Admission deemed admitted. On 3 September 2014, Defendant served an opposition.

II.      Analysis

         A.  Late Filing

Opposition to a motion must be filed at least nine court days prior to the hearing. Code Civ. Proc. §1005(b). A court may refuse to consider a late-filed opposition, in its own discretion. Cal. Rules of Court, rule 3.1300(d).

The hearing for this matter is 11 September 2014. Nine court days prior to the hearing date was 29 August 2014. Defendant filed her opposition on 3 September 2014. This opposition is late. The Court notes that this late filing does not give Plaintiff adequate time to formulate and serve a reply. The Court considered not considering the opposition for that reason.

The Court’s analysis of Plaintiff’s request for sanctions does not change with the arguments made in Defendant’s memorandum. The arguments as to the merits of the motion would alter the result. However, using the exact same facts, Defendant could simply bring a later motion under Code of Civil Procedure Section 2033.300(a) and likely achieve the same result as the instant motion.

In the interest of judicial economy, the Court will consider the arguments raised in Defendant’s opposition.

         B.  Service of Requests for Admission

Documents that are properly served are presumed to have been received by the addressee. See Evid. C. §641; Jones v. Catholic Healthcare W. (3d Dist. 2007) 147 Cal.App.4th 300, 308; Colleen M. v. Fertility & Surgical Assocs. (2d. Dist. 2005) 132 Cal.App.4th 1466, 1479-80. The responding party may rebut the presumption by introducing evidence that the document was not received. See Phay Him v. City & Cty. of S.F. (1st Dist. 2005) 133 Cal.App.4th 437, 445. Such evidence can include sworn testimony that the addressee never received the documents. See, e.g., Bonzer v. City of Huntington Park (2d Dist. 1993) 20 Cal.App.4th 1479-80. It should also include evidence of the addressee’s mail handling procedures. Phay Him, supra, 133 Cal.App.4th at 444-45; Colleen M, supra, 132 Cal.App.4th 1466, 1480.

Plaintiff declares that he sent discovery requests, including the requests for admission at issue, “on or about April 1, 2014.”[3] Plaintiff then declares that discovery requests were due “on or before May 13, 2014”.[4] The proof of service attached to the discovery requests indicates service by mail on 1 April 2014. Defendant’s counsel asserts that he did not receive the discovery requests. Counsel does not provide any evidence of his office’s mail handling procedures, thus not providing evidence that these documents were not simply left on someone’s desk and that is why he did not receive them. This is insufficient to rebut the presumption of service. The Court finds that service was effective 1 April 2014 and responses were due 6 May 2014.

       C. Motion to Have Matters Deemed Admitted

A party may move to have requests deemed admitted if the party serves no response or a late response. Code Civ. Proc. §2033.280(b). There is no deadline to file a motion to deem requests for admissions admitted, aside from before the discovery cut-off date. Code Civ. Proc. §§2024.020, 2033.280(b). The responding party may avoid having the responses deemed admitted by serving a response that is in substantial compliance with the discovery code’s requirements to properly answer requests for admission and the failure to serve a response was the result of 00

Plaintiff served requests for admission on 1 April 2014. Defendant was required to respond to these requests by 6 May 2014, but failed to do so. Plaintiff sent a letter dated 13 May 2014 to “Mr./Ms. Damian Rickert Law Offices:” stating that discovery responses, including Requests for Admission, were served on “April 1, 2014” (emphasis in original) and that responses were “due on or prior to May 13, 2014” (emphasis in original) and were therefore late. Defendant’s counsel declares that he received the meet and confer letter, but believed it sent in error[5].

As part of its opposition, Defendant includes verified, code-compliant answers to Plaintiff’s requests for admission and served them 26 August 2014. The Court also finds Defendant’s counsel’s statement that he did not personally receive the discovery requests credible.[6] Because of the unusual response date indicated in the letter, as well as the fact that the latter was dated, and therefore presumably sent, on the same day that discovery responses were due, the Court finds Defendant’s counsel’s statement that he believed the letter to be sent in error to be credible.[7] Defendant’s lack of response was due to excusable neglect.

Plaintiff’s motion to have matters deemed admitted is DENIED WITHOUT PREJUDICE to Plaintiff filing a motion to compel further responses to the requests for admissions.

         D.  Request for Monetary Sanctions

Plaintiff makes a request for monetary sanctions.  The request is not code-compliant.

Code of Civil Procedure Section 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).

Plaintiff’s motion makes a request for monetary sanctions but does not identify against whom the sanctions are sought, e.g., whether against Defendant herself, against Defendant’s counsel, or against both. The request is therefore deficient.

Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Plaintiff’s motion to have matters deemed admitted is DENIED WITHOUT PREJUDICE to Plaintiff filing a motion to compel further responses to the requests for admission.

Plaintiff’s request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] Plaintiff’s motion states that the matter is a Limited Civil Case. The Court notes that this matter was filed as an Unlimited Civil Case and treats the motion before it as such.

[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] Because discovery deadlines often turn on the difference of a day, the Court recommends that in the future, counsel become more certain and specific of dates of service.

[4]Assuming a service date, by mail, of 1 April 2014, the requests would have been due 6 May 2014. See Code Civ. Proc. §§1013, 2016.050.

[5] Because it is not relevant to the motion, the Court will not comment on whether the letter that Plaintiff sent meets the requirements under Code of Civil Procedure Section 2016.040.

[6] The Court does not require documentation of Defendant’s counsel’s mail handling processes for evaluation of this portion of the motion.

[7] The Court recommends that counsel follow up with each other in the future if a similar situation occurs. While the dates appeared in error, the letter referenced a case that counsel was familiar with sent from the opposing party. Due diligence should have entailed at least a phone call asking about the circumstances of the letter.