Case Number: BC611608 Hearing Date: June 27, 2018 Dept: 34

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

Moving Party: Defendant Rod Clough

Resp. Party: None

The motions are GRANTED. Plaintiffs are sanctioned in the total amount of $1,308.00.

BACKGROUND:

Plaintiffs commenced this action on 02/25/16. They later filed a First Amended Complaint on 07/06/16 and a Second Amended Complaint on 11/18/16.

On 08/31/17, plaintiffs filed a Fourth Amended Complaint against defendants for: (1) violation of professional standards; (2) fraud; (3) conspiracy to commit fraud; (4) securities fraud pursuant to California Corporations Code section 25401; (5) negligence; and (6) securities fraud pursuant to California Corporations Code section 25401.

On 08/14/17 defendants Moody National Lyndhurst, S, LLC and Moody National CY Lyndhurst MT, LLC filed a Cross-Complaint against plaintiffs for: (1) breach of contract.

ANALYSIS:

Motion to have Requests for Admission Deemed Admitted

Defendant moves the Court for an order that the truth of the matters in defendants’ Request for Admission, Set One be deemed admitted against each of the following plaintiffs: Courtney Sherman; Stephen Webber; Peter Webber; Passive Investments, LLC; David Rosenfield as owner of Tic Cy Lynhurst 19, LLC; Ensign Apartments, LC; Jean Dethiersant; Jerome Cowan, as Trustee of the Jerome Cowan Revocable Trust; Edward Griffith, as Trustee of the Edward W. and Carol H. Griffith Family Trust; Jeanette Solie, as Trustee of the Kenneth E. Solie Revocable Trust; Norris Whitmore, Donna Tong; Cecil Watts, as Trustee of the 2003, Cecil E. Watts and Marjorie E. Watts Revocable Trust; and Rosemarie Parr. (See Notice of Motion, p. 2:2-10.) Defendant also requests that the Court impose monetary sanctions against plaintiffs. (See Id. at p. 2:10-12.)

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

Defendant declares that each plaintiff was individually served with Requests for Admission, Set One on 01/18/18. (Sandler Decl., ¶2, Exh. A.) The Court notes that defendant has submitted proofs of service indicating that each of the plaintiffs named in this motion was served on 01/18/18. (See Ibid.) After defendant granted several extensions, plaintiffs’ responses were due on or before 04/29/18. (See Id. at ¶¶ 5-15.) Plaintiffs did not produce any responses and, on 04/30/18, plaintiffs’ counsel indicated that he would return defense counsel’s call but did not ask for any further extension. (Id. at ¶ 15.) As of 06/01/18, plaintiffs had not yet served any responses. (Id. at ¶ 16.)

Accordingly, the motion is GRANTED.

Defendant also seeks an order imposing sanctions on plaintiffs in the amount of $2,223.00 as compensation for the costs incurred in bringing this motion. (See Motion, p. 1:27-2:5; Onyett Decl., ¶ 5.) Counsel declares that he spent 2.2 hours drafting the motion and anticipates that he will spend a total of 3.5 additional hours reviewing the opposition, drafting a reply, and attending the hearing. (See Id. at ¶¶ 3-4.) Counsel further declares that he is billing $390.00 per hour in this matter. (Id. at ¶ 2.) Because the motion is unopposed, counsel will not need to spend time reviewing the opposition or drafting a reply. Accordingly, defendant may recover for the 2.2 hours that counsel spent drafting the motion, 1 additional hour to attend the hearing, and a $60.00 filing fee.

Plaintiffs are sanctioned in the amount of $1,308.00.

Motion to compel responses to Form Interrogatories

Defendant moves the Court for an order compelling responses to Form Interrogatories, Set One from each of the following plaintiffs: Courtney Sherman; Stephen Webber; Peter Webber; Passive Investments, LLC; David Rosenfield as owner of Tic Cy Lynhurst 19, LLC; Ensign Apartments, LC; Jean Dethiersant; Jerome Cowan, as Trustee of the Jerome Cowan Revocable Trust; Edward Griffith, as Trustee of the Edward W. and Carol H. Griffith Family Trust; Jeanette Solie, as Trustee of the Kenneth E. Solie Revocable Trust; Norris Whitmore, Donna Tong; Cecil Watts, as Trustee of the 2003, Cecil E. Watts and Marjorie E. Watts Revocable Trust; and Rosemarie Parr. (See Notice of Motion, p. 2:1-10.) Defendant does not seek sanctions in connection with this motion.

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

Defendant declares that each plaintiff was individually served with Form Interrogatories, Set One on 01/18/18. (Sandler Decl., ¶ 3, Exh. A.) The Court notes that defendant has submitted proofs of service indicating that each of the plaintiffs named in this motion was served on 01/18/18. (See Ibid.) After defendant granted several extensions, plaintiffs’ responses were due on or before 04/29/18. (See Id. at ¶¶ 4-15.) Plaintiffs did not produce any responses and, on 04/30/18, plaintiffs’ counsel indicated that he would return defense counsel’s call but did not ask for any further extension. (Id. at ¶ 15.) As of 06/01/18, plaintiffs had not yet served any responses. (Id. at ¶ 16.)

Accordingly, the motion is GRANTED.