On 21 February 2014, the motion of Robin Schaufler (“Plaintiff”) for notice, to deem requests for admissions – truth of facts, motion to compel oral deposition, and for monetary sanctions was argued and submitted. The Douglas Conant Day, et. al. (“Defendants”) did not file formal opposition to the motion.

Parties are reminded that all papers must comply with Rule of Court 3.1110(f).

Statement of Facts

This action arises from an alleged insurance fraud against an elderly plaintiff.

On 30 May 2013, Plaintiff wrote Defendant, advising Defendant of settlement offer for approximately $20,000 immediately and a promissory note for approximately $50,000.

On 6 January 2014, defendants accepted the Plaintiff’s settlement offer from May 2013. Per the Defendant, Plaintiff’s accepted via phone; however, in Defendant’s Exhibit 7, Plaintiff rescinded the May 2013 settlement due to a lapse in time, and proposed a new settlement offer of $150,000.

Discovery Dispute

On 19 November 2013, Plaintiff mailed Defendant a Notice of Taking Oral Deposition of Defendant, with the deposition to occur 16 December 2013. Defendant asserts they did not receive the notice until 13 December 2013, because it was mailed to an incorrect address. No evidence is given that it the wrong person received the notice.

Upon alleged receipt on 13 December 2013, Defendant emailed Plaintiff at 4 p.m. on a Friday, requesting continuance from the Monday deposition. Defendant indicated in their email that if Plaintiff did not object to the continuance, which was requested at the very last business hour before the aforementioned deposition, that Plaintiff’s assent would be assumed. Plaintiff claims to have not received the email before the 16 December 2013 deposition date.

On 19 November 2013, Plaintiff also mailed Defendant a Request for Admission – truth of facts, of which Defendant alleges they did not receive until 13 December 2013. Defendant also requested continuance on this document. Subsequently, the matter was allegedly discussed over the telephone on 31 December 2013.

Later that day on 31 January 2013, Defendant’s counsel emailed Plaintiff, and stated that the responses would be given by 10 January 2014 as Defendant was out of town. Responses were finally sent 31 January 2013, via email, a discovery method the parties did not agree to.

Discussion

I. Notice of Motion and Motion for an Order Compelling Defendant to Appear for Oral Deposition

A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

Here, the papers at issue are the attempts to depose the Defendant on the alleged fraud. Plaintiff’s request for judicial notice is accordingly GRANTED.

For the motion for the order to compel defendant to appear for oral deposition, plaintiff incorrectly cites Code of Civil Procedure § 2025.41, which provides the timeline for service of a written objection. It appears Plaintiff should have cited Code of Civil Procedure § 2025.450 (a), which stipulates actions for a failure to comply with a deposition notice.

Here, Defendant was mailed notice of a deposition; however, claimed they did not receive it.

Code of Civil Procedure § 2025.450 (b)(1) requires good cause for the motion to compel.

Here, the Plaintiff requested the deposition in order to ascertain the facts of the alleged fraud.

The motion to compel oral deposition is GRANTED. Parties shall agree upon a date to depose Defendant Doug Day within 20 days of this order.

II. Notice of Motion and Motion to Deem Requests for Admission – Truth of Facts

A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

Here, the papers at issue are the attempts to have the Defendant admit to facts for the alleged fraud in this case. Plaintiff’s request for judicial notice is accordingly GRANTED.

Plaintiff cites Code of Civil Procedure § 2033.280 (b), which provides that a party may move for a motion to the documents submitted as genuine and admitted. However, Code of Civil Procedure § 2033.280 (c) states the Court shall make this order, unless it finds the party to whom the requests for admission have been served, before the hearing on the motion, serves an answer.

Here, the Defendant served an answer to Plaintiff’s Request for Admissions on 20 January 2014. (Plaintiff Exhibit C).

The motion is DENIED.

III. Motion for Monetary Sanctions

Plaintiffs makes a request for monetary sanctions. The requests are not code-compliant.

Code of Civil Procedure, § 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 also Rule of Court 2.30(c): “Sanctions must not be imposed under this rule except on noticed motion by the party seeking sanctions or on the court’s own motion after the court has provided notice and an opportunity to be heard. A party’s motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought. The court on its own motion may issue an order to show cause that must (1) state the applicable rule that has been violated, (2) describe the specific conduct that appears to have violated the rule, and (3) direct the attorney, law firm, party, witness, or other person to show cause why sanctions should not be imposed against them for violation of the rule.”

Here, Plaintiff does not cite any authority in his memorandum of points and authorities. Plaintiff’s request for Monetary Sanctions is DENIED.

Conclusion

Plaintiff’s request for Judicial Notice of the Motion for an Order Compelling Defendant to Appear for Oral Deposition is GRANTED. The Motion to Compel Oral Deposition is GRANTED. Parties shall agree upon a date to depose Defendant Doug Day within 20 days of this order. Plaintiff’s request for Judicial Notice of the Motion for Requests to Deem Admission – Truth of Facts is GRANTED. The Motion for Requests to Deem Admission – Truth of Facts is DENIED. Plaintiff’s request for Monetary Sanctions is DENIED.