Case Number: BC666968 Hearing Date: June 11, 2018 Dept: 34

SUBJECT: Motions to compel responses to interrogatories and deem requests for admission be admitted

Moving Party: Defendants California Department of Social Services and Carlos Ocampo

Resp. Party: None

The motions are GRANTED. Plaintiff and her counsel are sanctioned in the total amount of $850.00.

PRELIMINARY COMMENTS:

The Court is always concerned when a party fails to oppose a discovery motion – particularly a motion such as this one, which seeks to have Requests for Admission be deemed admitted. When Requests for Admission are admitted, the opposing party usually loses the case; after all, any Requests for Admission worth the price of annual bar dues is designed to have the opposing party admit critically prejudicial facts. In this case, the result of admitting these Requests for Admission is that Plaintiff has conclusively admitted that she has no facts to support any of her causes of action.

Thus, it is not clear to the Court whether plaintiff is still pursuing the causes of action that remain after the Court granted defendants’ Motions for Summary Adjudication on May 23, 2017.

BACKGROUND:

Plaintiff commenced this action on 06/27/17. On 11/15/17, plaintiff filed a First Amended Complaint (“FAC”) against defendants for: (1) race discrimination – disparate treatment in violation of FEHA; (2) gender discrimination in violation of FEHA; (3) age discrimination in violation of FEHA; (4) harassment in violation of FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent discrimination in violation of FEHA; (7) intentional infliction of emotional distress; and (8) declaratory relief.

On 05/23/18, the Court granted defendant California Department of Social Services (“CDSS”) motion for summary adjudication as to plaintiff’s first, second, third, fourth, sixth, and eighth causes of action. (See Notice of Ruling [CDSS] filed 05/24/18, p. 2:1-7.)

On 05/23/18, the Court granted defendant Carlos Ocampo’s motion for summary adjudication as to the fourth and seventh causes of action and ruled that Mr. Ocampo is no longer a party to this action. (See Notice of Ruling [Ocampo] filed 05/24/18, p. 2:1-6.)

ANALYSIS:

Motion to have Requests for Admission Deemed Admitted

Defendants move the Court for an order that the truth of the matters in defendants’ Request for Admission be deemed admitted and request that the Court impose sanctions on plaintiff and her counsel in the amount of $2,890.00 as compensation for the attorney fees incurred in bringing this motion. (See Notice of Motion, p. 2:5-11.)

Relevant Law

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280(a).) The requesting party may then “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 monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., §2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Edmon & Karnow, Civ. Pro. Before Trial (The Rutter Group 2017) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., §2033.280(c); Edmon & Karnow, supra, at ¶ 8:1375.)

“The party to whom RFAs were directed must sign the response under oath. The responding party must also sign a response that contains an objection. If the response consists entirely of objections, then only the attorney’s signature is necessary.” (Edmon & Karnow, supra, at & 8:1360; See Code Civ. Proc. § 2033.240, subd. (a), (c).) “Where a verification is required, an unverified response is ineffective; it is the equivalent of no response at all.” (Edmon & Karnow, supra, at ¶ 8:1364.1; See Appleton v. Sup. Ct. (Cook) (1988) 206 Cal.App.3d 632, 636.)

Discussion

Defendants declare that plaintiff was served with CDSS’s Requests for Admission, Set One on 03/23/18. (Yi Decl., ¶ 2, Exh. A.) On 05/07/18, plaintiff “served unverified responses to CDSS’ Requests for Admission. (Yi Decl., ¶ 4, Exh. C.) Because plaintiff has provided responses to the Requests for Admission, the responses should have been verified by plaintiff. (See Code Civ. Proc. § 2033.240, subd. (a), (c).) Defense counsel made multiple attempts to meet and confer with plaintiff’s counsel regarding plaintiff’s responses but did not receive a response. (See Yi Decl., ¶¶ 5, 7.)

Accordingly, the motion is GRANTED.

Defendants also seek an order imposing sanctions on plaintiff and her counsel in the amount of $2,890.00 as compensation for the costs incurred in bringing this motion. (See Yi Decl, ¶ 8.) Counsel declares that he spent 11 hours drafting the motion and anticipates that he will spend a total of 6 hours reviewing the opposition, drafting a reply, and attending the hearing. (See Ibid.) Counsel further declares that CDSS is billed at the rate of $170.00 per hour in connection with this matter. (Ibid.) The hours claimed are excessive. This is a straight-forward motion to have requests for admission deemed admitted; the MPA is only four pages long. It should not have taken more than two hours to draft the motion; the compilation of the accompanying documents could easily be done by a legal secretary. Additionally, the motion is unopposed, so counsel will not need to spend any additional time reviewing an opposition or drafting a reply. Defendants may reasonably recover one additional hour so that counsel may attend the hearing.

Plaintiff and her counsel are therefore sanctioned in the total amount of $510.00.

Motion to compel responses to Interrogatories

Defendants move for an order compelling plaintiff to provide responses to CDSS’ Form Interrogatories – General (Set Two) and request that the Court impose sanctions on plaintiff in the amount of $2,210.00. (See Notice of Motion, p. 2:4-12.)

Relevant Law

California Code of Civil Procedure requires a response from the party to whom interrogatories are propounded within 30 days after service of the interrogatories. (Code Civ. Proc., § 2030.260(a).) If a party fails to serve timely responses, “the party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290(b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. § 2030.290(a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Discussion

Defendants declare that plaintiff was served with Form Interrogatories (Set Two) on 03/23/13. (Yi Decl. ¶ 2, Exh. A.) Defendant later granted plaintiff an extension such that her responses were due on 05/07/18. (See Id. at ¶ 3.) As of 05/17/18, plaintiff had not produced any responses to the interrogatories. (See Id. at ¶ 6.)

Accordingly, the motion is GRANTED.

Defendants also seek an order imposing sanctions on plaintiff and her counsel in the amount of $2,210.00 as compensation for the costs incurred in bringing this motion. (See Yi Decl, ¶ 7.) Counsel declares that he spent 7 hours drafting the motion and anticipates that he will spend a total of 6 hours reviewing the opposition, drafting a reply, and attending the hearing. (See Ibid.) Counsel further declares that CDSS is billed at the rate of $170.00 per hour in connection with this matter. (Ibid.) This amount is excessive.

In addition to the reasons indicated by the Court above when reducing the request for attorney’s fees in connection with the motion to deem Requests for Admission admitted, because this motion will be heard simultaneously with defendant’s motion to have the requests for admission deemed admitted, defendants have already recovered the attorney fees that will be incurred for counsel to attend the hearing.

Plaintiff and her counsel are therefore sanctioned in the total amount of $340.00.