Case Number: BC641560 Hearing Date: November 04, 2019 Dept: 4A

Motion to Deem Matters Within Request for Admissions (Set One) as True

Having considered the moving and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. and Dusty Watson alleging negligence and products liability relating to a heavy cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff amended her complaint to name Defendant S & N Construction, Inc. as Doe 1.

On April 30, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a cross-complaint against Cross-Defendant Room & Board, Inc. seeking total equitable indemnity, comparative equitable indemnity, contribution, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed Defendants Watson Construction Company, Inc. and Dusty Watson.

On October 8, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a motion to deem matters set forth in its Request for Admissions (Set Two) as true as against Plaintiff pursuant to California Code of Civil Procedure section 2033.280.

Trial is set for April 22, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant S & N Construction, Inc. (“Moving Party”) asks the Court deem Plaintiff to have admitted the truth of the matters in its Request for Admission (Set Two).

Moving Party also asks the Court impose monetary sanctions in the amount of $1,565 against Plaintiff and her counsel of record.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “party may move 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 under Chapter 7 (commencing with section 2023.010).” The court “shall” grant the motion to deem requests for admission admitted “unless it finds that 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).)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

DISCUSSION

On July 19, 2019, Moving Party served Plaintiff with its Request for Admissions (Set Two) by U.S. Mail. (Waghalter Decl., ¶ 2, Exh. 1.) Moving Party extended Plaintiff’s deadline to provide the outstanding responses until October 2, 2019. (Waghalter Decl., ¶ 8, Exh. 5.) No responses had been received as of the signing of Po Waghalter’s declaration on October 8, 2019. (Waghalter Decl., ¶ 9.)

On that same date, however, Plaintiff emailed and mailed verified responses, without objections, to all of Moving Party’s RFAs. (Hoffman Decl., ¶2; Plaintiff’s Notice of Lodging of RFA Responses.)

The Court finds the motion must be denied. (Code of Civil Procedure section 2033.280(c).)

The Court finds that Moving Party’s sanctions request should be granted. While Plaintiff provided her responses to the RFAs only six days after Moving Party’s last extension granted to her, and her responses apparently crossed in the mail with Moving Party’s motion, the Court cannot find that Plaintiff acted with substantial justification in serving late responses without notifying counsel for Moving Party that it intended to do so. The failure to contact opposing counsel led to needless work in preparing the discovery motion before the Court.

Moving Party’s request for $1,565 in monetary sanctions consists of 3 hours to draft the moving papers, 2.5 hours in drafting a reply, and 1.5 hours in traveling to and attending the hearing at a rate of $215 an hour, plus one $60 filing fee. (Waghalter Decl., ¶ 10.) The Court finds this amount to be unreasonable because no reply was filed and the motion is relatively straight-forward. Rather, the Court finds $705 ($215/hr. x 3 hrs. plus one $60 filing fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and her counsel of record for their abuse of the discovery process.

The motion is therefore DENIED.

The Court orders Plaintiff and Plaintiff’s counsel to pay Moving Party $705, jointly and severally, within 30 days of this ruling.

Moving Party is ordered to give notice of this ruling