Case Number: BC695703 Hearing Date: July 23, 2018 Dept: 34

SUBJECT: Motions to have Requests for Admission Deemed Admitted

Moving Party: Plaintiff Thomas J. Phillips, M.D., a Professional Corporation

Resp. Party: None

The motion is GRANTED. Defendant is sanctioned $1,260.00.

BACKGROUND:

Plaintiffs commenced this action on 02/27/18 against defendants for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) conversion; and (4) violations of penal code sections 484 and 496(c).)

ANALYSIS:

Plaintiff moves for an order to have the Requests for Admission served on defendant Lawrence Levy deemed admitted. (See Notice of Motion, p. 1:25-27.) Plaintiff also seeks sanctions in the amount of $2,460.00. (See Id. at p. 1:28-2:2.)

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]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 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); Weil & Brown, ¶ 8:1375.)

A court will deem requests 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(c).) “It 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 Civ. Proc., § 2033.280(c).)

Discussion

Plaintiff Thomas J. Phillips, M.D., a Professional Corporation served its first set of Requests for Admission on or about 05/08/18. (Nguyen Decl., ¶ 3, Exh. 1.) As of 06/21/18, defendant had not served responses to the Requests. (Id. at ¶ 5.) Because Defendant failed to timely serve compliant responses to Plaintiff’s discovery request, the requests for admission are deemed admitted.

Sanctions

“It 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 Civ. Proc., § 2033.280(c).)

Plaintiff’s counsel requests the Court to impose sanctions in the amount of $2,460.00. (Motion, p. 4:2-27.) This sum represents a total of 6 hours for counsel to draft the motion, draft a reply, and appear at the hearing. (Nguyen Decl., ¶ 6.) Counsel bills $400 per hour. (Ibid.) Plaintiff also seeks to recover the $60 filing fee. (Ibid.) This sum is excessive. The Court will impose sanctions to compensate plaintiff for two hours of counsel’s time to draft the motion and one hour to attend the hearing at which both motions will be heard. Plaintiff may also recover the filing fee.

Accordingly, the motion is GRANTED. The Court sanctions defendant in the amount of $1,260.00 in connection with this motion.

Moving Party: Plaintiff Fashion Island Surgery Center, LLC

Resp. Party: None

The motion is GRANTED. Defendant is sanctioned $460.00

ANALYSIS:

Plaintiff moves for an order to have the Requests for Admission served on defendant Lawrence Levy deemed admitted. (See Notice of Motion, p. 1:25-27.) Plaintiff also seeks sanctions in the amount of $2,460.00. (See Id. at p. 1:28-2:2.)

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]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 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); Weil & Brown, ¶ 8:1375.)

A court will deem requests 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(c).) “It 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 Civ. Proc., § 2033.280(c).)

Discussion

Plaintiff Thomas J. Phillips, M.D., a Professional Corporation served its first set of Requests for Admission on or about 05/08/18. (Nguyen Decl., ¶ 3, Exh. 1.) As of 06/21/18, defendant had not served responses to the Requests. (Id. at ¶ 5.) Because Defendant failed to timely serve compliant responses to Plaintiff’s discovery request, the requests for admission are deemed admitted.

Sanctions

“It 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 Civ. Proc., § 2033.280(c).)

Plaintiff’s counsel requests the Court to impose sanctions in the amount of $2,460.00. (Motion, p. 4:2-27.) This sum represents a total of 6 hours for counsel to draft the motion, draft a reply, and appear at the hearing. (Nguyen Decl., ¶ 6.) Counsel bills $400 per hour. (Ibid.) Plaintiff also seeks to recover the $60 filing fee. (Ibid.) This sum is excessive. This motion is nearly identical to Plaintiff Thomas J. Phillips, M.D., a Professional Corporation’s motion.

The Court is concerned that the request for sanctions for both this motion and the motion above are inflated. Also, both requests are identical.

“‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . .’ (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court declines to award sanctions. Plaintiff may recover its filing fee in the amount of $60.00.

The motion is GRANTED. Defendant is sanctioned $60.00.