JEFFREY HENDERSON, ET AL. VS CITYWIDE TOWING, INC.

Tentative Rulings

Case Number: 19STLC04554    Hearing Date: February 02, 2021    Dept: 25

HEARING DATE: Tue., February 2, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Henderson, et al. v. Citywide Towing, Inc. COMPL. FILED: 05-09-19

CASE NUMBER: 19STLC04554 DISC. C/O: 01-26-21

PROCEEDINGS: MOTION FOR TERMINATING SANCTIONS

MOVING PARTY: Plaintiffs Jeffrey Henderson and Erica Henderson, in pro per

RESP. PARTY: Defendant Citywide Towing, Inc.

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Plaintiffs Jeffrey Henderson and Erica Henderson’s Motion for Order for Terminating Sanctions, Striking Defendant’s Answer, and Entering Default is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 20, 2021 [ ] Late [ ] None

REPLY: Filed on January 25, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On May 9, 2019, Plaintiffs Jeffrey Henderson and Erica Henderson (collectively, “Plaintiffs”), in pro per, filed an action for violation of Vehicle Code section 22658, conversion, trespass to chattels, negligence, violation of Business and Professions Code section 17200, and fraud against Defendant Citywide Towing, Inc. (“Defendant”). Defendant filed an Answer, without an attorney, on June 7, 2019.

On December 26, 2019, Plaintiffs filed a motion for an order deeming requests for admissions admitted against Defendant which was set for hearing for February 6, 2020. At the February 6th hearing, the Court informed Eli Shashoua that he could not appear on behalf of Defendant and that Defendant needed to be represented by counsel. (2/6/20 Minute Order.) The hearing on Plaintiffs’ motion to deem requests for admission admitted was continued. (Id.)

On July 24, 2020, Plaintiffs filed the instant Motion for Order for Terminating Sanctions, Striking Defendant’s Answer, and Entering Default (the “Motion”).

On August 8, 2020, Defendant filed a Substitution of Attorney form noting it was now being represented by Robert A. Ring with Ring & Green, APC.

On August 25, 2020, the Court denied Plaintiffs’ motion for an order deeming admissions admitted, finding that the discovery was not properly served until after the motion was filed. (8/25/20 Minute Order.) The Court further noted that Plaintiffs’ request consisted of 60 requests for admission, well over the combined limit of 35 questions imposed by Code of Civil Procedure section 94. (Id.) Notwithstanding this violation, Defendant served responses to the discovery on August 5, 2020. (Id.)

Finally, Defendant filed an Opposition to Plaintiff’s Motion on January 20, 2021, and Plaintiffs filed a Reply on January 25.

1. Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).)

1. Discussion

Plaintiffs seek a terminating sanction due to Defendant’s failure and refusal to answer Plaintiffs’ discovery requests. (Mot., p. 2:1-5.) Although Plaintiffs argue Defendant refused to provide discovery responses, they did not file motions to compel before filing this Motion for terminating sanctions. Even if they had, however, it is unlikely that the Court would have granted those motions as the Requests for Production of Documents and two sets of Form Interrogatories served on Defendant exceed the 35-question limit imposed by Code of Civil Procedure section 94, subdivision (a). (Oppo., Ring Decl., p. 3:8-19, Exh. A.) Notwithstanding this violation, Defendant provides evidence that it served responses to Requests for Production of Documents and two sets of Form Interrogatories via mail and email on January 20, 2021. (Id.) In addition, the only motion Plaintiffs did file, the motion to deem requests for admission admitted against Defendant, was denied by this Court on August 25, 2020 for the reasons noted above. (8/25/20 Minute Order.) Because Defendant has not disobeyed any discovery order, terminating sanctions are unwarranted.

In Reply, Plaintiffs argue that “Respondent” lacks standing to submit an opposition because “Respondent denies he owns [Defendant]”. (Reply, p. 4:3-6.) However, the Opposition was submitted by Defendant through his attorney of record. This argument is wholly unpersuasive.

Plaintiffs also argue that California Rules of Court, rule 8.54, subdivision (a)(3), required Defendant to file and serve any opposition within 15 days of the motion being filed. (Reply, p. 5:3-6.) However, Plaintiffs’ reliance on Rule 8.54 is misplaced as that rule only applies to cases on appeal. Rather, pursuant to Code of Civil Procedure section 1005, subdivision (b), an opposition to a motion must be filed at least nine (9) court days before the hearing. Defendant timely filed its Opposition on January 20.

Plaintiffs further argue that the responses served are insufficient. (Reply, p. 6:21-8:3.) However, a motion for terminating sanctions to deal with this issue is improper. Instead, Plaintiffs should have filed a motion to compel further responses. As less than thirty days remain before trial is set to begin, however, discovery is now closed. (Code of Civ. Proc., § 2024.020.) Importantly, Plaintiffs have not filed a motion to reopen discovery.

For all of the reasons discussed above, Plaintiffs’ Motion is DENIED.

1. Conclusion & Order

For the foregoing reasons, Plaintiffs Jeffrey Henderson and Erica Henderson’s Motion for Order for Terminating Sanctions, Striking Defendant’s Answer, and Entering Default is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC04554    Hearing Date: August 25, 2020    Dept: 25

HEARING DATE:    Tue., August 25, 2020 JUDGE /DEPT: ­­­­­Blancarte/25

CASE NAME:  Henderson, et al. v. Citywide Towing, Inc.   COMP. FILED: 05-09-19

CASE NUMBER:     19STLC04554 DISC. C/O: 01-26-21

PROCEEDINGS:  MOTION FOR ORDER DEEMING ADMISSIONS ADMITTED

MOVING PARTY:    Plaintiffs Jeffrey and Erica Henderson, in pro per

RESP. PARTY:  Defendant City Wide Towing, Inc.  

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiffs Jeffrey and Erica Henderson’s Motion for Order Deeming Admissions Admitted is DENIED.  

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on August 6, 2020 [   ] Late [   ] None

REPLY:  Filed on August 14, 2020 [   ] Late [   ] None

ANALYSIS:

I. Background

On May 9, 2019, Plaintiffs Jeffrey and Erica Henderson (“Plaintiffs”), in pro per, filed an action for violation of vehicle code section 22658, conversion, trespass to chattels, negligence, violation of business and professions code section 17200, and fraud against Defendant Citywide Towing, Inc. (“Defendant”). On June 7, 2019, Defendant filed its Answer, in pro per.

On December 26, 2019, Plaintiffs filed the instant Motion for Order Deeming Admissions Admitted (the “Motion”). At the initial hearing on February 6, 2020, the Court ordered Plaintiffs to file a proof of service demonstrating the Requests for Admission were served on Defendant. (2/6/20 Minute Order.) The Court also noted that because Defendant was a corporation, it needed to obtain legal counsel to proceed. (Id.) 

Defendant filed a Substitution of Attorney and an Opposition to this Motion on August 6, 2020. Plaintiffs filed a Reply on August 14, 2020.

II. Legal Standard

A party must respond to requests for admissions within 30 days after service of such requests. (Code Civ. Proc., § 2033.250, subd. (a).) “The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product privilege…” (Code Civ. Proc., § 2033.280, subd. (a).) “The requesting 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.” (Id. at subd. (b).) However, a court will not make such an order “if a party to whom 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.” (Id. at subd. (c).)

III. Discussion

Plaintiffs seek an order deeming Requests for Admission admitted, which they argue were served on Defendant on July 3, 2019. (Mot., Henderson Decl., ¶ 2.) As noted above, because Plaintiffs’ Motion did not initially include a proof of service for the Requests for Admission, the Court continued the hearing and ordered Plaintiffs to file a proof of service demonstrating the requests were properly served on Defendant. (2/6/20 Minute Order.)

Notably, the proof of service Plaintiffs filed on June 15, 2020 demonstrates that the Requests for Admission were mailed to Defendant on February 10, 2020, more than one month after filing the instant Motion, and four days after the initial hearing. (6/15/20 Proof of Service.) Indeed, it appears Plaintiffs did not actually serve the Requests for Admission on July 3, 2019, as they originally represented to the Court. Thus, Plaintiffs’ argument that Defendant failed to timely respond to the Requests for Admission purportedly served on July 3, 2019 is wholly unsupported.

The Court also notes that Plaintiffs’ discovery request, which consists of 60 requests for admission, violates Code of Civil Procedure section 94. Section 94 limits discovery in limited civil cases to any combination of 35 interrogatories, demand for production of documents, and requests for admission. (Code Civ. Proc., § 94, subds. (a)(1)-(3).) Despite this violation, Defendant provided substantially compliant responses to Plaintiffs’ discovery request on August 5, 2020. (Oppo., Ring Decl., p.1, Exh. A.) Thus, Plaintiffs’ Motion is DENIED. (Code Civ. Proc., § 2033.280, subd. (c).)

IV. Conclusion & Order

For the foregoing reasons, Plaintiffs Jeffrey and Erica Henderson’s Motion for Order Deeming Admissions Admitted is DENIED. 

Moving party is ordered to give notice.

Case Number: 19STLC04554    Hearing Date: February 06, 2020    Dept: 94

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiffs Jeffrey and Erica Henderson’s Motion for Order Deeming Admissions Admitted is CONTINUED to APRIL 14, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next hearing, Plaintiffs are to file a proof of service demonstrating the Requests for Admission were served on Defendant as indicated in their declaration.

I. Background

On May 9, 2019, Plaintiffs Jeffrey and Erica Henderson (“Plaintiffs”) filed an action for violation of vehicle code section 22658, conversion, trespass to chattels, negligence, violation of business and professions code section 17200, and fraud against Defendant Citywide Towing, Inc. (“Defendant”). On June 7, 2019, Defendant filed an Answer.

On December 26, 2019, Plaintiffs filed the instant Motion for Order Deeming Admissions Admitted (the “Motion”). To date, no opposition or reply briefs have been filed.

II. Legal Standard

A party must respond to requests for admissions within 30 days after service of such requests. (Code Civ. Proc., § 2033.250, subd. (a).) “The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product privilege…” (Code Civ. Proc., § 2033.280, subd. (a).) “The requesting 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.” (Id. at subd. (b).) However, a court will not make such an order “if a party to whom 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.” (Id. at subd. (c).)

A motion dealing with the failure to respond, rather than with inadequate responses, does not require the requesting party to meet and confer with the responding party. (Deymer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4 [disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973]. There is no time limit within which a motion to have matters deemed admitted must be made. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1585.)

III. Discussion

Here, Plaintiffs state they mailed Request for Admissions, Set One, to Defendant on July 3, 2019 and that as of December 18, 2019, no responses had been received. (Mot., Henderson Decl., ¶¶ 2, 4.) Although Plaintiffs attach a copy of the Requests for Admission purportedly served on Defendant, no proof of service demonstrating such service is attached. (Id., Exh. A.) Accordingly, Plaintiffs are ordered to file a proof of service demonstrating the discovery requests were served on Defendant.

IV. Conclusion & Order

For the foregoing reasons, Plaintiffs Jeffrey and Erica Henderson’s Motion for Order Deeming Admissions Admitted is CONTINUED to APRIL 14, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next hearing, Plaintiffs are to file a proof of service demonstrating the Requests for Admission were served on Defendant as indicated in their declaration.

Moving party is ordered to give notice.