Case Number: BC672117 Hearing Date: December 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: MOTION TO COMPEL DEFENDANT LUIS LUQUE’S RESPONSES TO DISCOVERY AND DEEM ADMITTED REQUESTS FOR ADMISSIONS; MOTION GRANTED

On August 14, 2017, Plaintiffs Santiago Banuelos and Jasmine Torres (collectively, “Plaintiffs”) filed this action against Defendants Luis Roberto Luque (“Defendant”) and Jorge Luque (collectively, “Defendants”) for motor vehicle and general negligence relating to a May 22, 2016 automobile accident. On February 23, 2018, Plaintiffs served Special Interrogatories, Form Interrogatories, Requests for Production of Documents, and Requests for Admission on Defendant. Plaintiffs’ counsel contacted defense counsel, who advised he could not locate his client. (Declaration of David A. Carnie, ¶¶ 7, 8, 9.) As of October 22, 2018, no responses were received. (Carnie Decl., ¶ 12.) Plaintiffs move to compel responses, to deem admitted requests for admissions, and monetary sanctions.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code of Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code of Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Where a party fails to timely respond to a request for admission, the propounding 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. (Code of Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)

The court shall grant a motion to deem admitted requests for admissions, “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 of Civ. Proc., § 2033.280, subd. (c).)

Defendant provided unverified responses in February 2018, but counsel could not locate his client to obtain verifications. In November 2018, Kinkle, Rodiger and Spriggs associated as counsel for Defendant and discovered the outstanding discovery. Defense counsel embarked on a series of efforts to locate Defendant, including, but not limited to hiring a private investigator. Defense counsel contends the court has discretion to allow more time for Defendant to respond to outstanding discovery, rather than to later rule on a motion for relief from deemed admissions. Defense counsel states Defendants only speak Spanish, but thus far, all communication attempts have been in English.

In Reply, Plaintiffs argue that they, in good faith, already gave defense counsel approximately seven months to provide verified responses and sanctions for the time spent writing these motions and replies and traveling to the hearing is warranted.

Having reviewed the moving, opposition, and reply papers, the Court finds Defendant has still not served verified responses to Plaintiff’s discovery requests. It is well-settled that “unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1888) 206 Cal.App.3d 632, 636; Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.) Prior and present defense counsel had an additional seven months to locate their client and to obtain verifications. Further delay would impact Plaintiffs’ ability to prosecute their case. Additionally, it is mandatory that the court grant a motion to deem admitted requests for admissions unless, prior to the hearing on the motion, substantially compliant responses were served. (Code of Civ. Proc., § 2033.280, subd. (c).)

Accordingly, the Motions to compel Defendant’s responses to Plaintiffs’ discovery are GRANTED. Defendant is ordered to serve verified responses, without objection, to Plaintiffs’ Form Interrogatories, Special Interrogatories, and Requests for Production of Documents within twenty (20) days of the date of this Order.

The Motion to deem admitted requests for admissions is GRANTED.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code of Civ. Proc., § 2030.290, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code of Civ. Proc., § 2033.280, subd. (c).)

Plaintiffs’ request for monetary sanctions is GRANTED and imposed against Defendant and his attorney of record, jointly and severally, in the reduced amount of $1,140.00 for three hours at Plaintiffs’ counsel’s hourly rate of $300.00 and $240.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT7@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.