Case Number: 18STCV13616 Hearing Date: October 23, 2019 Dept: 47

Maria Heifetz v. Alexander Itkin, et al.

(1) DEMURRER TO FIRST AMENDED COMPLAINT;

(2) MOTION TO COMPEL DEFENDANT ALEXANDER ITKIN TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE;

(3) MOTION TO COMPEL DEFENDANT ALEXANDER ITKIN TO RESPOND TO SPECIAL INTERROGATORIES, SET ONE

(4) MOTION TO COMPEL DEFENDANT ALEXANDER ITKIN TO RESPOND TO FORM INTERROGATORIES, SET ONE[1]

(5) MOTION TO HAVE REQUESTS FOR ADMISSION PROPOUNDED TO DEFENDANT ALEXANDER ITKIN DEEMED “ADMITTED”

MOVING PARTY: (1) Defendants Alexander Itkin, Alena Itkin, and Akula Properties, LLC; (2)-(3) Plaintiff Maria Heifetz

RESPONDING PARTY(S): (1) Plaintiff Maria Heifetz; (2)-(3) Defendant Alexander Itkin

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that she agreed to purchase a residential property with Defendant Alexander Itkin to operate as a boarding home. Defendant Alexander Itkin then used his own construction company, Defendant Akula Properties, and inflated the construction costs. When the property was sold, Defendant Alena Itkin was used as the realtor agent on the sale, without Plaintiff’s knowledge of the conflict. Plaintiff alleges breach of fiduciary duty, misrepresentation, concealment, breach of contract, and unjust enrichment.

Defendants demur to the first amended complaint. Plaintiff moves to compel production responses to production of documents (set one), special interrogatories (set one), and form interrogatories (set one), and to have requests for admission deemed admitted.

TENTATIVE RULING:

Defendants Alexander Itkin, Alena Itkin, and Akula Properties, LLC’s demurrer to the first amended complaint is OVERRULED as to the first, third, and fourth causes of action. The demurrer is SUSTAINED as to the second cause of action. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If she does not, no leave to amend will be given. The demurrer is SUSTAINED without leave to amend as to the fifth cause of action.

Plaintiff Maria Heifetz’s motion to compel Defendant Alexander Itkin to respond to request for production of documents, set one, is GRANTED. Defendant is to provide code-compliant responses, without objection, to all of the requests for production of documents (set one) within 30 days of the date of this Order. Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger.

Plaintiff’s motion to compel Defendant Alexander Itkin to respond to special interrogatories, set one, is GRANTED. Defendant is to provide verified responses, without objection, to all of the special interrogatories (set one) within 30 days of the date of this Order. Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger.

Plaintiff’s motion to compel Defendant Alexander Itkin to respond to form interrogatories, set one, is GRANTED. Defendant is to provide verified responses, without objection, to all of the form interrogatories (set one) within 30 days of the date of this Order. Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger.

Accordingly, if not mooted prior to the hearing as a result of service of code-compliant responses, Plaintiff’s motion for an order deeming the truth of facts admitted in request for admissions, set one, served on Defendant Alexander Itkin is GRANTED. Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger.

All sanctions are to be paid to Plaintiff’s counsel within 30 days of the date of this Order.

(1) Demurrer

Unsigned Reply Brief

Not only is Defendants’ reply brief erroneously labeled “Plaintiffs [sic] Reply to Defendants [sic] Opposition to Plaintiffs [sic] Demurrer to First Amended Complaint,” but it is also unsigned.

Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(CCP § 128.7(a) (bold emphasis added).)

Defendants’ reply will be stricken unless the omission of the signature is corrected at or before this hearing.

Meet and Confer

The Declaration of Attorney Jackie Rose Kruger is irrelevant to the extent that it includes meet-and-confer efforts directed to the complaint, as opposed to the first amended complaint. However, Paragraphs 6 through 9 of the Kruger Declaration describe meet-and-confer efforts that post-date the filing of the first amended complaint, and Paragraph 10 indicates that Plaintiff did not respond to those efforts. Thus, the Kruger Declaration reflects that the meet-and-confer requirement set forth in CCP § 430.41 was satisfied. Before Defendants filed the meet-and-confer declaration, Plaintiff had argued that Defendants had not engaged in that process. (Oppo., at p. 8.) The Kruger Declaration and its exhibits now demonstrate, however, that Defendants satisfied the meet-and-confer requirement.

Discussion

Defendants failed to distinctly specify the grounds for the demurrer as required by CCP § 430.60. Nor did Defendants separately state the individual grounds for the demurrer and whether they apply to the whole complaint or a particular cause of action, as required by CRC 3.1320(a). As a result, the whole demurrer could be disregarded. Nevertheless, because it appears that Defendants are demurring to each cause of action on the ground that they fail to state facts sufficient to constitute a cause of action (CCP § 430.10(e)), the Court will address the demurrer to each cause of action on that ground.

1. First Cause of Action (Breach of Fiduciary Duty)

Plaintiff alleges breach of fiduciary duty only against Defendant Alexander Itkin (and the Doe Defendants).

The elements of a cause of action for breach of fiduciary duty are: “(1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Plaintiff alleges that Defendant Alexander Itkin was the manager of the company Plaintiff formed with him and that he breached his fiduciary duties of care and loyalty to Plaintiff. (1AC ¶¶ 27, 30-32.) Specifically, Plaintiff alleges the following actions on the part of Defendant breached his fiduciary duty to her:

30. ALEXANDER has breached his fiduciary duties owed MARIA . . . . With respect to his fiduciary duty of care to MARIA, he has failed to act in good faith . . . by, among other things, (1) refusing MARIA any participation in any of the decision making; (2) failing to apprise MARIA of adverse events detrimental to the company such as the numerous Code violations and fines levied on the company; and (3) refusing MARIA access to the company’s business and financial records and access to the company’s bank account, despite repeated requests by MARIA. Further, on or about December 26, 2018, ALEXANDER – without speaking to or informing MARIA – began taking steps to dissolve ALMA by filing a Certificate of Dissolution with the California Secretary of State. A Certificate of Cancellation was filed on February 11, 2019 – again, without ever speaking to MARIA.

31. ALEXANDER has, likewise, breached his fiduciary duty of loyalty to MARIA in myriad ways, including, but not limited to, by (1) his failure to inform MARIA of his relationship with the financial institution from which they obtained their loan, (2) his failure to inform MARIA of his ownership interest in the construction company ALMA utilized, ALKULA PROPERTIES; and (3) his failure to inform MARIA that their selling agent was . . . his wife, ALENA. ALEXANDER’s utilizing these entities/persons with close business and familial ties for his own personal gain, without informing MARIA of the conflicts and obtaining her consent, is textbook breach of the fiduciary duty of loyalty.

32. Making matters worse, ALEXANDER took further advantage of MARIA by having AKULA PROPERTIES fraudulently bill ALMA for its work in a number of different ways, including by inflating the amounts in invoices and submitting invoices for work actually performed on other properties, all to ALEXANDER’s personal financial benefit.

(¶¶ 30-32.) Plaintiff also alleges damage caused by the breach. (¶ 33.)

Defendant argues that it is a “question of fact whether one is either an investment adviser or a party to a confidential relationship that gives rise to a fiduciary duty under common law.” (Demurrer, at p. 4.) At the demurrer stage, “questions of fact” are irrelevant. The question is whether Plaintiff has sufficiently alleged a fiduciary duty. Here, by alleging that Defendant was the manager of an LLC she formed with him, she has sufficiently alleged a fiduciary duty. (See, e.g., Charton v. Harkey (2016) 247 Cal.App.4th 730, 735 [explaining that the plaintiffs in that case had alleged breach of fiduciary duty against the manager of an LLC in which the plaintiffs had invested].)

Plaintiff’s allegations are sufficient to allege a cause of action for breach of fiduciary duty. The demurrer to the first cause of action is OVERRULED.

2. Second Cause of Action (Fraud – Intentional Misrepresentation)

Plaintiff alleges intentional misrepresentation only against Defendant Alexander Itkin (and the Doe Defendants).

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (italics omitted).)

Fraud must be pleaded with specificity rather than with “general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made . . . .

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.’” (Id. at pp. 216–217.)

(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Here, the second cause of action does not plead exactly when or where Defendant made the alleged misrepresentations, in what manner they were made (orally or in writing), and why the representations – such as that Defendant “was an expert in real estate and construction matters” (¶ 36) was known to be false when made (as opposed to non-actionable opinion).

Accordingly, the demurrer is SUSTAINED as to the second cause of action.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If she does not, no leave to amend will be given.

3. Third Cause of Action (Fraud – Concealment)

Plaintiff alleges fraudulent concealment only against Defendant Alexander Itkin (and the Doe Defendants).

“The elements of a cause of action for fraud based on concealment are: ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’”

(Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198 (citation omitted).)

There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) when the defendant makes partial representations but also suppresses some material fact.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

Here, Plaintiff properly alleges a fiduciary relationship with Defendant, as discussed above, which results in a duty to disclose. As to the other elements of fraudulent concealment, Plaintiff alleges the following:

(1) Defendant “intentionally failed to disclose certain facts to MARIA, including that he intended to use his own construction company ALKULA PROPERTIES to perform the renovations and, further, intended to have ALKULA PROPERTIES fraudulently inflate the construction costs.”

(2) Defendant “concealed these facts with the intent of deceiving MARIA and inducing her to co-sign the bank loan, purchase the Property, and agree to enter into an agreement which gave ALEXANDER total decision-making powers and control over the company’s business records and bank account.”

(3) Plaintiff “had no knowledge of these concealed facts.”

(4) Plaintiff “has suffered harm as a result of ALEXANDER’s concealment of material facts in that had she known that ALEXANDER in fact intended to use his own construction company, intended to inflate the construction costs, and later intended to sell the Property using his wife as the selling agent, . . . MARIA would not have gone into business with ALEXANDER in the first place.

(5) MARIA will amend this Complaint when her damages have been fully ascertained.

(1AC ¶¶ 42-44.)

Defendant complains that Plaintiff incorporated by reference all of the preceding paragraphs. Defendant is correct that this is a disfavored practice, but this does not render the third cause of action subject to demurrer. As explained above, Plaintiff has sufficiently alleged each of the elements of fraudulent concealment. Accordingly, the demurrer to the third cause of action is OVERRULED.

4. Fourth Cause of Action (Breach of Contract)

Plaintiff alleges breach of contract only against Defendant Alexander Itkin.

To state a cause of action for breach of contract, Plaintiff must “plead the contract, [her] performance of the contract or excuse for nonperformance, [defendant]’s breach and the resulting damage.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458.) Further, the complaint “must indicate on its face whether the contract is written, oral, or implied by conduct.” (Id. at 458-459.) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Id. at 459.) More recent case law is even more permissive, allowing a plaintiff to plead the legal effect of a written contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)

Here, Defendants argue that Plaintiff has not alleged whether the contract is written, oral, or implied. However, Plaintiff specifically alleges that the agreement “is attached . . . as Exhibit ‘A.’” (1AC ¶ 10.) Defendants point out that the exhibit is unsigned, but that does not negate Plaintiff’s allegation of a written agreement with the terms stated in Exhibit A. As explained above, there is no requirement to attach a copy of a written agreement to the complaint, and therefore Plaintiff could have set out its terms “in the body of the complaint” without attaching it. (Otworth, supra, 166 Cal.App.3d at 45.)

Defendants also argue that the breach of contract claim is barred by the statute of frauds. Given that Plaintiff alleges a written agreement and attaches a written agreement to the first amended complaint, this argument is without merit. The fact that the attached agreement is unsigned does not prevent Plaintiff from proving the existence of a validly executed agreement in accordance with her allegations.

Although Defendants admit that Plaintiff “alleges a contractual business relationship existed between the parties,” they argue that she “fails to provide sufficient facts to prove the existence of the relationship.” (Demurrer, at p. 7.) In making this argument, however, Defendants confuse the rules of pleading with the rules of proof. Plaintiff sufficiently pleads breach of contract here; whether Plaintiff actually proves these allegations remains to be seen.

The demurrer is OVERRULED as to the fourth cause of action.

5. Fifth Cause of Action (Unjust Enrichment)

Although Defendants do not make this argument, there is no cause of action for unjust enrichment:

“[T]here is no cause of action in California for unjust enrichment. ‘The phrase “Unjust Enrichment” does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.’ (Citation omitted.) Unjust enrichment is ‘“a general principle, underlying various legal doctrines and remedies,”’ rather than a remedy itself. (Citation omitted.) It is synonymous with restitution.”

(Melchior v. New Line Productions, Inc., (2003) 106 Cal.App.4th 779, 793; see also Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370-71 [“[T]here is no cause of action in California for unjust enrichment.”]).

Moreover, it does not appear from the face of the complaint that Plaintiff could amend this cause of action to plead a quasi-contract cause of action, in connection with which restitution might be appropriate, because “an unjust enrichment theory is inapplicable” where, as here, the Plaintiff alleges that “the parties entered into express contracts.” (Durell, supra, at 1370.)

Accordingly, the demurrer to the fifth cause of action for unjust enrichment is SUSTAINED without leave to amend. In light of this decision, it is unnecessary to reach Defendants’ bases for demurring to this cause of action.

(2) Motion To Compel Responses To Request for Production of Documents

When a party to whom an inspection demand is directed fails to respond under CCP § 2031.300(b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (CCP § 2031.300(a).)

Here, the requests for production were served by mail on June 1, 2019, and responses were due by July 8, 2019. (Declaration of Nathan Benham ¶ 2 & Exh. A.) Plaintiff then gave counsel an extension until July 26, 2019. (Id. ¶ 3.) Although Defendant’s counsel stated that she had already served responses and would serve additional copies, as of the date of the filing of this motion, Plaintiff had not received any responses. (Benham Decl. ¶¶ 5, 6.)

Defendant’s counsel declares that her office “prepared” responses “on or around July 16” and that she was “informed” that they were mailed to Plaintiff’s counsel (though she does not indicate when they were supposedly mailed). (Declaration of Jackie Rose Kruger ¶ 3.) However, the alleged proof of service “has been misplaced.” (Id. ¶ 4.) Defendant’s counsel also apparently made no attempt to re-send the documents until after this motion was filed (Id. ¶¶ 5, 6), and Plaintiff’s counsel declared that he did not receive any “additional” copy before filing this motion. (Benham Decl. ¶ 6.) Defendant is correct that the proper response when inadequate discovery responses are received would be to file a motion to compel further responses, but there is no evidence that any initial responses were received in a timely manner.

If Defendant had now served verified responses to the requests for production (set one), without objection, the motion would be moot. The so-called response attached to Defendant’s opposition, however, is to one out of forty-one document requests. That hardly evinces “substantial compliance” with CCP § 2031.300. Plaintiff states in her reply that she has now received responses that are unverified and full of objections, which suggests Defendant may have served more than a response to one request, but additional responses were not attached to Defendant’s opposition. Defendant’s claim that many of the requests are irrelevant because Plaintiff has filed a first amended complaint does not justify his failure to respond to the requests. Accordingly, the motion to compel responses to requests for production (set one) is GRANTED. Defendant is to provide code-compliant responses, without objection, to all of the requests for production of documents (set one) within 30 days of the date of this Order.

Plaintiff’s request for sanctions, which are mandatory (CCP § 2031.300(c)), is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger. (2.0 hours at $250/hour, plus filing fee.) There is no evidence that the failure to respond was the fault of Defendant himself. Indeed, if they were prepared on July 16 as Defendant’s counsel claims, the responsibility for any failure to serve them in a timely manner – and retain a proof of service – lies squarely with Defendant’s counsel. Sanctions are to be paid to Plaintiff’s counsel within 30 days of the date of this Order.

(3) Motion To Compel Responses To Special Interrogatories (Set One)

When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (CCP § 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (CCP § 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)

Here, the special interrogatories were served by mail on June 1, 2019, and responses were due by July 8, 2019. (Declaration of Nathan Benham ¶ 2 & Exh. A.) Plaintiff then gave counsel an extension until July 26, 2019. (Id. ¶ 3.) Although Defendant’s counsel stated that she had already served responses and would serve additional copies, as of the date of the filing of this motion, Plaintiff had not received any responses. (Benham Decl. ¶¶ 5, 6.)

Defendant’s counsel declares that her office served responses on July 16 (though she does not indicate the method of service used). (Declaration of Jackie Rose Kruger ¶ 3.) However, the alleged proof of service “was misplaced.” (Id. ¶ 5.) Defendant’s counsel also apparently made no attempt to re-send the documents until after this motion was filed (Id. ¶ 4), and Plaintiff’s counsel declared that he did not receive any “additional” copy before filing this motion. (Benham Decl. ¶ 5.) Defendant is correct that the proper response when inadequate discovery responses are received would be to file a motion to compel further responses, but there is no evidence that any initial responses were received in a timely manner.

If Defendant had now served verified responses to the special interrogatories (set one), without objection, the motion would be moot. The so-called response attached to Defendant’s opposition, however, contains precisely no responses. (Kruger Decl., Exh. B.) Plaintiff states in her reply that she has now received responses that are unverified and full of objections, but those were not attached to Defendant’s opposition. Nor is the “updated” proof of service even signed! (Ibid.) Defendant has hardly shown “substantial compliance” with CCP § 2031.290(a)(1). Any objections Defendant had to the interrogatories should have been made via timely responses, not as a justification for failing to respond. Accordingly, the motion to compel responses to special interrogatories (set one) is GRANTED. Defendant is to provide verified responses, without objection, to all of the special interrogatories (set one) within 30 days of the date of this Order.

Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger. (2.0 hours at $250/hour, plus filing fee.) There is no evidence that the failure to respond was the fault of Defendant himself. Indeed, if they were prepared on July 16 as Defendant’s counsel claims, the responsibility for any failure to retain proof that they were served in a timely manner lies squarely with Defendant’s counsel. Sanctions are to be paid to Plaintiff’s counsel within 30 days of the date of this Order.

(4) Motion To Compel Responses To Form Interrogatories (Set One)

When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (CCP § 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (CCP § 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)

Here, the special interrogatories were served by mail on June 1, 2019, and responses were due by July 8, 2019. (Declaration of Nathan Benham ¶ 2 & Exh. A.) Plaintiff then gave counsel an extension until July 26, 2019. (Id. ¶ 3.) Although Defendant’s counsel stated that she had already served responses and would serve additional copies, as of the date of the filing of this motion, Plaintiff had not received any responses. (Benham Decl. ¶ 5.)

Defendant’s counsel declares that her office served responses on July 16 (though she does not indicate the method of service used). (Declaration of Jackie Rose Kruger ¶ 3.) However, the alleged proof of service “was misplaced.” (Id. ¶ 5.) Defendant’s counsel also apparently made no attempt to re-send the documents until after this motion was filed (Id. ¶ 4), and Plaintiff’s counsel declared that he did not receive any “additional” copy before filing this motion. (Benham Decl. ¶ 5.) Defendant is correct that the proper response when inadequate discovery responses are received would be to file a motion to compel further responses, but there is no evidence that any initial responses were received in a timely manner.

If Defendant had now served verified responses to the form interrogatories (set one), without objection, the motion would be moot. The so-called response attached to Defendant’s opposition, however, contains precisely no responses. (Kruger Decl., Exh. B.) Plaintiff states in her reply that she has now received responses that are unverified and full of objections, but those were not attached to Defendant’s opposition. Nor is the “updated” proof of service even signed! (Ibid.) Defendant has hardly shown “substantial compliance” with CCP § 2031.290(a)(1). Any objections Defendant had to the interrogatories should have been made via timely responses, not as a justification for failing to respond. Accordingly, the motion to compel responses to form interrogatories (set one) is GRANTED. Defendant is to provide verified responses, without objection, to all of the form interrogatories (set one) within 30 days of the date of this Order.

Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger. (2.0 hours at $250/hour, plus filing fee.) There is no evidence that the failure to respond was the fault of Defendant himself. Indeed, if they were prepared on July 16 as Defendant’s counsel claims, the responsibility for any failure to retain proof that they were served in a timely manner lies squarely with Defendant’s counsel. Sanctions are to be paid to Plaintiff’s counsel within 30 days of the date of this Order.

(5) Motion To Deem Matters Admitted – Requests for Admission (Set One)

When a party to whom requests for admission are directed fails to respond, the party propounding the requests may move for an order that the truth of any matters specified in the requests be deemed admitted. (CCP § 2033.280(b).) “The court shall make this order [deem the requests admitted], unless it finds that the party to whom the request for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with section 2033.220.[2]” (CCP § 2033.280(c).)

Plaintiff’s requests for admission (set one) were served on June 1, 2019, and Defendant’s responses were due by July 8, 2019. (Declaration of Nathan Benham ¶ 2.) Plaintiff then gave counsel an extension until July 26, 2019. (Id. ¶ 3.) Although Defendant’s counsel stated that she had already served responses and would serve additional copies, as of the date of the filing of this motion, Plaintiff had not received any responses. (Benham Decl. ¶ 5.)

Defendant’s counsel declares that her office “prepared” responses “on or around July 16” and that she was “informed” that they were mailed to Plaintiff’s counsel (though she does not indicate when they were supposedly mailed). (Declaration of Jackie Rose Kruger ¶ 3.) However, the alleged proof of service “has been misplaced.” (Id. ¶ 4.) Defendant’s counsel also apparently made no attempt to re-send the documents until after this motion was filed (Id. ¶¶ 5, 6), and Plaintiff’s counsel declared that he did not receive any “additional” copy before filing this motion. (Benham Decl. ¶ 5.)

This motion would be mooted if Defendant had served responses to the RFAs in substantial compliance with § 2033.220. Here, however, the response attached to Defendant’s opposition is to only two of the thirty-five propounded RFAs, and it purports to be a “supplemental” response, when no original response was ever received.

Accordingly, if not mooted prior to the hearing as a result of service of code-compliant responses, Plaintiff’s motion for an order deeming the truth of facts admitted in request for admissions, set one, served on Defendant Alexander Itkin is GRANTED.

Plaintiff’s request for sanctions is GRANTED in the amount of $560.00 against Defendant’s counsel of record only, Jackie Kruger. (2.0 hours at $250/hour, plus filing fee.) There is no evidence that the failure to respond was the fault of Defendant himself. Indeed, if they were prepared on July 16 as Defendant’s counsel claims, the responsibility for any failure to retain proof that they were served in a timely manner lies squarely with Defendant’s counsel. Sanctions are to be paid to Plaintiff’s counsel within 30 days of the date of this Order.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: October 23, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] This motion and the motion to deem requests for admission “admitted” were not calendared for this date. The reservations for the two discovery motions that are on calendar indicate that they are for “1 motion” each, but then under number of motions, both reservations indicate “2,” and Plaintiff paid for 2 motions with each of the 2 reservations. All four presumably should not have been scheduled on the same day (plus the demurrer), but because Plaintiff paid the filing fee for all four, they are all addressed here. The “Hearings” section for eCourt for this case shows two discovery motions scheduled for October 29, but they do not appear on the October 29 calendar.

[2] CCP § 2033.220 requires responses to requests for admission to meet the following requirements:

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.