CAPITAL ONE, N.A. VS. FORTNER

CASE NUMBER: 25CVG-00896 Tentative Ruling on Motion for Order Deeming Matters Admitted: Defendant Nicole D. Fortner moves for an order compelling Defendant’s Requests for Admission, Set One deemed admitted by Plaintiff Capital One, N.A.

The motion was originally set for hearing on June 15, 2026, however, Proofs of Service, an Opposition, and Reply were filed in the five court days prior to the hearing. All were untimely. The Court continued hearing on the motion to July 13, 2026. The Court further notes that Plaintiff submitted an additional opposition on July 9, 2026, just two court days before the hearing. Despite the tardiness of the July 9 opposition, the Court will exercise its discretion and consider the late filed opposition.

Merits. “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” CCP § 2024.020(a).

Trial was initially calendared for June 29, 2026, making a June 15, 2026 hearing date just beyond the fifteen day cut off. The Court notes that the June 29, 2026 trial date was vacated on June 15, 2026. The Court also notes that Defendant moved ex parte on May 12, 2026 and was diligent in filing the motion within a week of the denied ex parte. Defendant has provided evidence regarding why the motion was not made sooner and the delays caused by Plaintiff not responding to discovery. The Court finds good cause to reopen discovery for the purpose of hearing this motion.

When a party fails to timely respond to Requests for Admission, the requesting party may move for an order deeming the genuineness of documents and the truth of matters specified in the requests admitted. CCP § 2033.280(b). Failure to timely respond also waives any objections to the discovery propounded. CCP § 2033.280(a).

The court shall make this order, 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. 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. CCP § 2033.280(c).

Plaintiff’s moving papers sufficiently demonstrate that Defendant failed to respond to Request for Admissions, Set One within the required time frame. Defendant has established that Defendant propounded Requests for Admission, Set One by mail on March 13, 2026 and that Plaintiff did not timely respond. Plaintiff presented evidence that verified responses were served via email (not permitted per CCP § 1010.6) and mail on June 10, 2026, which is five days before the date originally set for hearing.

Plaintiff objected to every request despite objections being waived due to the untimely response. Therefore, Plaintiff did not provide responses that were in substantial compliance. Plaintiff has provided no evidence for the reason for not timely responding. There is no request nor basis for an order relieving Plaintiff from the waiver of objections. The Court deems Requests for Admission, Set One admitted by Plaintiff.

Sanctions. Defendant seeks $120 in monetary sanctions which is comprised of the $60 motion filing fee and $60 for office supplies and mailing. The Court will award the motion filing fee of $60 only. Plaintiff is not responsible for expedited mailing or copying.

The motion is GRANTED. Defendant’s Requests for Admission, Set One is deemed to have been admitted by Plaintiff. Monetary sanctions are ordered in favor of Defendant in the amount of $60, payable within thirty days of today. Defendant provided a proposed Order, however, it did not include the text of the Requests for Admission being deemed admitted. Defendant is to prepare an Order consistent with the Court’s ruling. 5

Tentative Ruling on Discovery Motions: Plaintiff Nicole D. Fortner filed the following motions on May 18, 2026:

 Motion for Order Compelling Initial Responses to Form Interrogatories, Set One and Special Interrogatories, Set One  Motion for Order Compelling Plaintiff’s Initial Responses to Demand for Production of Documents, Set One  Motion for Order Precluding Evidence at Trial for Failure to Provide Sufficient Bill of Particulars

The motions were originally set for hearing on June 15, 2026, however, Proofs of Service, an Opposition, and Reply were filed in the five court days prior to the hearing. All were untimely. The Court continued hearing on the motion to July 13, 2026. In reviewing the motions, it appears that Plaintiff initially provided one Opposition to cover all three motions and Defendant filed the Reply in kind. Therefore, this tentative ruling will address all three motions. The Court further notes that Plaintiff submitted an additional opposition on July 9, 2026 just two court days before the hearing. Despite the tardiness of the July 9 opposition, the Court will exercise its discretion and consider the late filed opposition.

Reopening Discovery. “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” CCP § 2024.020(a).

Trial was initially calendared for June 29, 2026, making a June 15, 2026 hearing date just beyond the fifteen day cut off. The Court notes that the June 29, 2026 trial date was vacated on June 15, 2026. The Court also notes that Defendant moved ex parte on May 12, 2026 and was diligent in filing the motion within a week of the denied ex parte. Defendant has provided evidence regarding why the motions were not made sooner and the delays caused by Plaintiff not responding to discovery. The Court finds good cause to reopen discovery for the purpose of hearing these motions.

Form Interrogatories. This is a limited case, however, Plaintiff propounded DISC-001, which is the judicial council form for unlimited cases. Rather than providing a response or objecting within the time limits, Plaintiff chose to not respond. The main difference between a DISC-001 and a DISC-004 is that the DISC-004 does not have subparts, which assists a party in staying under the limit set for limited cases. The Court notes that the only box checked in Section 5 of the DISC-001 is Item 17.0, which seeks information regarding the Requests for Admission.

Given the Court’s ruling deeming Requests for Admission admitted, it appears that Defendant likely no longer requires this information. However, should Plaintiff somehow be relieved from the Order Deeming Requests for Admission Admitted, discovery will remain open for the limited purpose of propounding Form Interrogatories on the correct form. The deadline will be based on the next trial date selected.

Special Interrogatories. A party has thirty days after service to respond to Special Interrogatories. CCP § 2030.260(a). Not providing a timely response results in a waiver of objections. CCP § 2030.290(a). If a party to whom a discovery request is directed fails to serve a timely response, the party propounding discovery may move for an order compelling a response. CCP § 2030.290(c).

Defendant has presented evidence that Special Interrogatories, Set One was propounded and that Plaintiff did not respond within the timeframe required. On July 7, 2026, Plaintiff finally submitted responses to the Special Interrogatories which included objections. The Court finds that Plaintiff failed to timely file its responses and therefore objections are waived. Plaintiff shall provide further verified responses to Special Interrogatories, Set One, without objections, within fifteen days of today’s hearing.

Request for Production. A party has thirty days after service to respond to a Request for Production. CCP § 2031.260(a). Not providing a timely response results in a waiver of objections. CCP § 2031.300(a). If a party to 6 whom a discovery request is directed fails to serve a timely response, the party propounding discovery may move for an order compelling a response. CCP § 2031.300(b).

Defendant has presented evidence that Request for Production, Set One was propounded and that Plaintiff did not respond within the timeframe required. On July 7, 2026, Plaintiff finally submitted responses to the Requests for Production which included objections. The Court finds that Plaintiff failed to timely file its responses and therefore objections are waived. Plaintiff shall provide further verified responses to Request for Production, Set One, without objections, within fifteen days of today’s hearing.

Bill of Particulars. Defendant moves for an order excluding evidence at trial for Plaintiff’s failure to comply with CCP § 454.

It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.

If the pleading is verified the account must be verified by the affidavit of the party to the effect that he believes it to be true; or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney has his office or from some cause unable to make the affidavit, by the affidavit of the agent or attorney. CCP § 454.

Defendant has presented evidence that a demand was made pursuant to CCP § 454 and that an unverified response was provided by Plaintiff. The response consists of statements from August 2023 to August 2024. The Court notes that these statements do not include any charges that form the principal balance, only penalties and interest charged. This is insufficient. Defendant moves for preclusion of evidence, however, the Court notes that Plaintiff stated in the response that a Supplemental Bill of Particulars would be served.

When a bill of particulars is provided but defective, the remedy is a noticed motion for a further account and bill of particulars. Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal. App. 2d 427, 433. The Court orders Plaintiff to serve a verified bill of particulars that is in compliance with CCP § 454 within fifteen days of today’s hearing. Should Plaintiff fail to do so, Defendant may bring a noticed motion for exclusion of evidence pursuant to CCP § 454.

Sanctions. Plaintiff requests monetary sanctions in the amount of $120 on each the two motions that address Interrogatories and Request for Production. Each request is comprised of the $60 motion filing fee and $60 for office supplies and mailing. The Court finds that Plaintiff did not act with substantial justification in not responding to propounded discovery. The Court will award the motion filing fee of $60 on each motion only. Plaintiff is not responsible for expedited mailing or copying.

The Motion for Order Compelling Responses to Interrogatories is GRANTED. Further verified responses, without objections, are to be served as noted above. The Motion for Order Compelling Responses to Request for Production is GRANTED. Further verified responses, without objections, are to be provided as noted above. The Motion Precluding Evidence at Trial is DENIED without prejudice. Defendant may bring this motion again if Plaintiff does not comply as noted above. Monetary sanctions are ordered in favor of Defendant in the amount of $120, payable within thirty days of today. Defendant provided proposes Orders that will be modified to reflect the Court’s rulings.

3.110(g), and failure to timely prosecute. Hearing on the Order to Show Cause Re: Dismissal will be on Monday September 14, 2026 at 8:30 a.m. in Department 63. The clerk is directed to prepare the Order to Show Cause Re: Dismissal.

WIEMERS, ET AL. VS. HOERNING, ET AL.