Case Number: BC574259 Hearing Date: June 05, 2018 Dept: 37

CASE NAME: Rolando Guzman v. Pacific Alliance Medical Center, Inc., et al.

CASE NO.: BC574259

HEARING DATE: 6/5/18

DEPARTMENT: 37

CALENDAR NO.: 6

FILING DATE: 3/4/15

FSC/TRIAL DATE: 8/27/18 (FSC), 9/4/18 (Trial)

NOTICE: OK

SUBJECT: Motion for Order to Deem Admitted Defendant’s Request for Admissions, Set Two, Request for $1,050 in Monetary Sanctions

MOVING PARTY: Defendant Pacific Alliance Medical Center

OPPOSING PARTY: Plaintiff Rolando Guzman
COURT’S TENTATIVE RULING

Defendant Pacific Alliance Medical Center’s motion is DENIED. The court awards a monetary sanction of $1,230, jointly and severally against Plaintiff and his counsel Raymond J. McMahon of Zinder, Koch & McBratney. Counsel for Defendant to give notice.
STATEMENT OF THE CASE

This is an action for alleged general negligence. Plaintiff Ronaldo Guzman alleges that Defendants Pacific Alliance Medical Center, Inc. (“PAMC”) and Dana N. Scott (“Scott”) failed to have sufficient and functional equipment present for his scheduled surgery, resulting in an inability to perform the procedure and that this increased the likelihood of an infection. Plaintiff also alleges that the procedure was not performed within the standard of care and that he did not give informed consent. Finally, Plaintiff alleges that appropriate discharge medications were not provided and that Defendants did not respond appropriately to Plaintiff’s post-procedure complaints.

Plaintiff filed the Complaint on March 4, 2015, alleging one cause of action for general negligence against Defendants PAMC and Scott. Plaintiff dismissed Scott from the matter with prejudice on April 18, 2018.

Defendant now moves for an order deeming admitted the truth of the matters asserted in its Request for Admissions, Set Two (“RFAs”). Plaintiff did not file an opposition, but represented to the court at the May 20, 2018 hearing that he had served responses the prior day. The court continued the hearing on the subject motion and allowed supplemental briefing. The matter now comes again to hearing.

DISCUSSION
I. Analysis

In the event a party fails to timely respond to requests for admission, the party waives any objection to the requests. (Code Civ. Proc., § 2033.280, subd. (a).)[1] The requesting party may move then 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 a monetary sanction….” (Id., § 2033.280, subd. (b).) Unless the court finds that the responding party has served, before the hearing date, a proposed response substantially complying with section 2033.220, the court must deem the requests admitted and impose a monetary sanction on the party whose failure to respond necessitated this motion. (Id., § 2033.280, subd. (c).)

Defendant PAMC presents evidence that it propounded its RFAs to Plaintiff by mail on December 13, 2017. Plaintiff’s responses were therefore due by January 17, 2018. Defendants extended Plaintiff’s time to respond to February 21, 2018. (Declaration of David Klehm (“Klehm Decl.”) Ex. B.) Defendant’s counsel attests that Plaintiff has not responded to the subject discovery. (Klehm Decl. ¶ 5.) PAMC filed the subject motion on March 9, 2018 and requests the court enter an order deeming the matters in these RFAs admitted.

Plaintiff presents evidence that he served responses to the subject discovery on May 9, 2018, which was the day prior to the original hearing on this motion. Section 2033.280, subdivision (c) provides that the court is not to make the order deeming matters admitted if “the party to whom the requests for admission 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.” (Code Civ. Proc., § 2033.280, subd. (c).)

Defendant responds that the service was not in substantial compliance with the statutory requirements because it was served through e-mail at 5 p.m. on May 9, 2018, the night before the hearing and because the parties have not agreed to electronic service. However, the proof of service of Plaintiff’s response states that the response was served by mail on May 9, 2018. (Declaration of David Darren T. McBratney (“McBratney Decl. Ex. 2.) Defendant does not argue that the mailed service of the responses was insufficient or present any legal authority that would require Defendant to have received the document in question prior to the hearing for service to be proper. Accordingly, Defendant’s argument fails.

Defendant additionally contends that the motion should be granted because Plaintiff has failed to respond to the interrogatories that were served with the RFAs. Defendant does not present any legal authority for the proposition that a party’s responses to requests for admissions may be deficient for its failure to respond to interrogatories, which constitute a different type of discovery device. The court is unaware of any such authority.[2]

To the contrary, sections 2033.210 and 2033.220 only provide that the response “shall answer the substance of the requested admission, or set forth an objection to the particular request” (Code Civ. Proc., § 2033.210, subd. (b)), that each response to the RFAs must be “complete and straightforward” (id. § 2033.220, subd. (a)) and that the responding party shall admit as much of the request that is true, “either as expressed in the request itself or as reasonably and clearly qualified by the responding party” (id., subd. (b)(1)), “[d]eny so much of the matter involved in the request as is untrue” (id., subd. (b)(2)) or “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge” (id., subd. (b)(3)). Plaintiff’s submitted responses unequivocally deny all of the propounded RFAs at issue. Accordingly, Plaintiff has substantially complied with the statutory requirements in his response. (See St. Mary v. Sup. Ct. (2014) 223 Cal.App.4th 762, 778-781 (St. Mary) [finding a trial court erred in deeming RFAs admitted where the responding party served its response prior to the hearing].)

As Plaintiff has served a response prior to the hearing, the court DENIES the motion.

II. Monetary Sanctions

It is mandatory that the court impose a monetary sanction “on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc. § 2033.280, subd. (c).)
Defendant’s counsel attests to an hourly rate of $180 and to spending two and a half hours in drafting and revising this motion and supporting papers and additionally requests $60 in costs for the filing fees. (Klehm Decl. ¶ 6.) The court finds that this hourly rate and the requested amount of time are reasonable. As no opposition was originally filed, the court found it reasonable to award an additional hour’s time for the May 10, 2018 hearing on the subject motion and previously awarded monetary

[1] All subsequent statutory references will be to the Code of Civil Procedure, unless otherwise specified.

[2] Defendant asserts that Plaintiff’s denial of the RFA related to its interrogatory 17.1 “makes a mockery of the Discovery Act because plaintiff could provide responses to Judicial Interrogatory 17.1 that raises objections to the Requests for Admissions, even though plaintiff has already waived his right to object by failing to provide timely responses.” (Supp. Reply 4.) Defendant does not present any legal authority for its proposition that a party’s responses to a discovery device do not comply with the statutory requirements because the party could potentially raise objections through its responses to other propounded discovery. The court is not aware of any such authority. To the extent Defendant contends that Plaintiff’s responses are deficient, the proper course is for Defendant to bring a motion to compel further responses pursuant to section 2033.290. (See St. Mary, supra, 223 Cal.App.4th at pp. 776-777, 780.)