Plaintiff, Eitan Beznos (“Plaintiff”), moves for an order compelling Defendant Horizon Construction & Remodeling, Inc. (“Horizon”) to serve verified responses and responsive documents, without objections to Plaintiff’s Requests for Production, Set One, within 10 calendar days of the hearing of the motion, and for an order that Horizon and its counsel of record Fred Hayes and Rogers, MacLeith & Stolp, LLP jointly and severally pay monetary sanctions in the amount of $2,963.15.
Plaintiff also moves for an order deeming admitted Plaintiff’s Requests for Admission, Set One to Horizon and an order that Horizon and its counsel of record Fred Hayes and Rogers, MacLeith & Stolp, LLP jointly and severally pay monetary sanctions in the amount of $2,963.15.
Lastly, Plaintiff moves for an order deeming admitted Plaintiff’s Requests for Admission, Set One to Defendant Mark Besnos (“Besnos”) and an order that Besnos and his counsel of record Fred Hayes and Rogers, MacLeith & Stolp, LLP jointly and severally pay monetary sanctions in the amount of $2,963.15.
Plaintiff contends that Defendant Horizon has failed to timely respond to Plaintiff’s Requests for Production, Set One (“RFP 1”) and Requests for Admission, Set One (“RFA 1”) and that Defendant Besnos has failed to timely respond to Plaintiff’s RFA 1, such that all objections have been waived. Plaintiff also contends that the Court has no discretion to deny a motion to deem RFA 1 admitted as Defendants have failed to respond to Plaintiff’s timely-served RFA 1; that there is no substantial justification for Defendants’ failure to substantively respond to Plaintiff’s written discovery requests; that sanctions in the amount of $3,187.50 is mandatory and appropriate as to the motion to compel responses to RFP 1; and that sanctions in the amount of $2,963.15 is mandatory and appropriate as to each motion to deem RFA 1 admitted. Plaintiff additionally asserts that even if Defendants serve responses after the motions are filed, this Court should still grant the motion to compel responses to RFP 1 and issue sanctions, and that the Court must carefully examine any responses to RFA 1 to ensure they are in “substantial compliance,” otherwise, the Court must sanction Defendants for forcing Plaintiff to file the motion to deem RFA 1 admitted pursuant to Code of Civil Procedure section 2033.280(c).
No opposition has been filed.
RFP 1
If a party to whom requests for production of documents were directed fails to serve a timely response, the propounding party may move for an order compelling responses, and for monetary sanctions. (Code Civ. Proc. § 2031.300(b).) If a party fails to serve a timely response to requests for production, all objections are waived. (Code Civ. Proc. § 2031.300(a).)
A response to a request for production may consist of a statement that the responding party will comply, a statement that the responding party lacks the ability to comply, or an objection to the request. (Code Civ. Proc. § 2031.210(a).)
A response to an inspection demand which consists only of objections does not require a verification. (Code Civ. Proc. § 2031.250(a).) The portion of a response which consists of objections does not require a verification, and if timely made, does not result in a waiver of objections. (Code Civ. Proc. § 2031.310(c); Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657–658.)
Here, Plaintiff provides that in or around December 2021, Plaintiff served his first round of written discovery on Defendants, including Form Interrogatories, Requests for Production and Requests for Admission, Set One. (ROA 111, Declaration of Olaf J. Muller, ¶ 3.) Plaintiff argues that Horizon and Besnos never responded to Plaintiff’s written discovery, but also provides that Defendants served all boilerplate objections to Plaintiff’s written discovery “in late February 2022,” after Plaintiff granted a thirty-day extension to serve responses. (Id., Muller Decl., ¶¶ 3-4.)
Plaintiff then provides that after his motion to resume court proceedings was granted, on March 2, 2023, Plaintiff “re-served [his] first round of written discovery on Defendants, i.e., his Form Interrogatories, Requests for Production, and Requests for Admission, Sets One to both Defendants Horizon and Besnos,” including the discovery at issue by way of the present three (3) motions. (ROA 111, Muller Decl., ¶ 11; Exs. 1 and 2.)
Based on the foregoing, it appears that Horizon timely responded to Plaintiff’s RFP 1 in late February 2022 such that objections have not been waived. In turn, Plaintiff was required to file a motion to compel further responses to address any objections, which Plaintiff has not done.
The Court DENIES Plaintiff’s motion to compel responses from Horizon to Plaintiff’s RFP 1.
RFA 1
Code of Civil Procedure section 2033.280 provides that if a party to whom requests for admission are directed fails to serve a timely response, the party waives any objection to the requests. The requesting party may also move for an order that the genuineness of documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc. § 2033.280(a)-(b).) The court shall deem the matters 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).)
Each answer in response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc. § 2033.220(b).) “If only a part of a request for admission is objectionable, the remainder of the request shall be answered.” (Code Civ. Proc. § 2033.230(a).) Code of Civil Procedure section 2033.230(b), states in relevant part: “If an objection is made to a request or to a part of a request, the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc. § 2033.230(b).) Code of Civil Procedure section 2033.240 requires that the responding party sign responses to requests for admission under oath unless the response contains only objections.
As set forth above, it appears that Defendants Horizon and Besnos served timely objections to RFA 1 in February 2022, and that the instant motions concern Plaintiff’s “re-served” RFA 1. (ROA 99, 115, Declaration of Olaf J. Muller, ¶¶ 3-4, 11, Exs. 1 and 2.) As objection-only responses need not be verified pursuant to Code of Civil Procedure section 2033.240, and it appears that Defendants served a timely response consisting of objections, the objections are not waived, and Plaintiff was required to file a motion to compel further responses to address the objections.
The Court DENIES Plaintiff’s Motions to Deem RFA 1 Admitted.
In light of the Court’s ruling above, the Court DENIES Plaintiff’s requests for monetary sanctions.
Defendants to give notice.