Motion for Order for Admissions Deemed Admitted & Sanctions
Case No. 23CV416519 Motion for Order for Admissions Deemed Admitted and Sanctions
I. BACKGROUND This case stems from a personal injury/premises liability case that was filed on May 18, 2023. Before the Court is Plaintiff Linda Lisner’s (“Lisner”) Motion for Order for Admissions to be Deemed Admitted and monetary sanctions against Defendant Johnstone Moyer Inc’s (“JMI”) that was filed on October 30, 2025. The motion was accompanied by a proof of service indicating electronic mail service on that same day.
The Court has carefully reviewed Plaintiff’s moving papers including, notice of motion, memorandum of points and authorities, Declaration of Jerome Belloti and attached Exhibit A, and proof of service (totaling 24 pages); Defendant JMI’s Opposition (totaling 20 pages); Declaration of Nicholas K. Wong in support of defendant’s opposition and Exhibits 1-11 (totaling 74 pages); proofs of service; and the pleadings.
II. LEGAL STANDARD A. PROCEDURAL VIOLATION The Court notes procedural violation by the defendant. Defendant filed opposition papers on July 10, 2026. Per Code of Civil Procedure section 1005(b) opposition papers were to be filed by July 8, 2026. The papers were two days late.
California Rules of Court, rule 3.1300, subdivision (d) states, “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”
Here, the Court balances the totality of circumstances, including judicial economy to avoid the expenditure of any further judicial resources, the court will look past the procedural violations and consider the motion and opposition on its merits. However, the Defendant JMI and defense counsel is hereby admonished to comply with Rule of Court and Code of Civil Procedure. Any future violations may result in the court’s refusal to consider untimely filed papers.
B. REQUEST FOR ADMISSIONS
Pursuant to California Code of Civil Procedure sections 2033.280: “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (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 under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.
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(b) 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 (commencing with Section 2023.010).
(c) 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.” (Code Civ. Proc., § 2033.280).
III. ANALYSIS On August 9, 2025, Plaintiff served JMI with Request for Admissions (“RFA”), Set One, that contained a total of 56 RFA via electronic mail service. (Declaration of Bellotti, at p.7 and Exhibit A). Per Plaintiff, responses were due on September10, 2025. (Id.). Plaintiff avers that no extensions by stipulation of the parties or court order was extended. (Id.). Plaintiff did not receive any responses on September10, 2025 or at the time of filing this motion on October 30, 2025. (Id.).
Defendant JMI opposes the motion and asserts that responses to RFA were served on February 13, 2026 and verified responses were served on March 19, 2026. (Declaration of Wong; Exhibit 9). JMI thereby avers that there has been substantial compliance prior to this hearing date. (Opposition, at p. 4). JMI also points to the fact that verified responses have been submitted, the motion is dispositive, and that the plaintiff has not filed a motion to compel further responses. (Id.). JMI asserts that it was added late and served with the Complaint on February 26, 2025, nearly 21 months after the Complaint was filed on May 18, 2023.
Because JMI’s insurance carrier was investigating the claim, JMI did not Answer until August 8, 2025. (Declaration of Wong, p. 2). A day later, Plaintiff served discovery via electronic service on JMI. (Id.). JMI asserts that at that juncture, parties had not agreed to electronic service. (Id.; Exhibit 1). On October 5, 2025, plaintiff’s counsel emailed JMI that discovery responses were overdue and that objections were waived, and requested an estimated date for responses. (Id., at p. 3; Exhibit 2).
Defense counsel Wong was not assigned to the matter until October 6, 2025, which nearly one month after discovery responses were due. (Id.).
Parties met-and-conferred on November 6, 2026 and discussed having responses due on December 22, 2025. Defense asserts that Mr. Bellotti stated he would consider withdrawing the motion at that time. (Id., at p. 4). Thereafter, JMI asserts to receiving material from the plaintiff on November 18, 2025 that required preparation to responses. (Id.). On February 13, 2026, JMI served responses to discovery nothing “verifications to follow.” (Id.). On February 20, 2026, Plaintiff sent a letter identifying deficiencies in initial discovery responses.
However, JMI notes that none of the deficiencies were to defendant’s RFA. (Id.; Exhibit 6). On March 2-3, 2026, parties metand-conferred about the location where the alleged incident occurred. Given the discrepancy of the location of the incident, defense counsel Ms. Cappelluti as plaintiff’s counsel to re-issue the RFA with the correct location, which was rejected. (Id., at p. 5). Ms. Cappelluti sent a letter on March 5, 2026, memorializing the plaintiff’s counsel refusal to update RFAs and defense confirmed it had substantially complied with produced verified responses. (Id.).
On March 19, 2026, JMI served verified responses to RFA defining “the premises” as the location clarified by plaintiff’s counsel. (Id.; Exhibit 9-10).
IV. SANCTIONS Pursuant to Code of Civil Procedure section 2033.280(c), the Court shall impose monetary sanctions for failure to timely respond to requests for admission unless the party acted with substantial justification, or the circumstances
render imposition of sanctions unjust. The Court must impose a monetary sanction on the party or attorney whose failure to serve timely Requests for Admission responses necessitated the motion.
Plaintiff Lisner seeks $1,260.00 in sanctions based on a three hours of work to prepare and file the submit motion, one hour of anticipated time to appear for the hearing at the hourly rate of $300.00, as well as $60.00 in cost. (Declaration of Bellotti, at p. 8).
Defendant JMI opposes the request for sanctions on the grounds that it has provided verified responses on March 19, 2026. JMI also opposes sanctions against Mr. Wong—and points out that plaintiff’s counsel incorrectly identifies defense counsel as Mr. Wang—stating that he was not assigned to work on the matter until October 6, 2025, which was weeks after the initial responses were due. (Opposition, at p. 13-14). Further, JMI states that discovery was served via electronic service before parties had consented to electronic service in violation of Code of Civil Procedure section 1010.6 (b)(3).
JMI also asserts that it has complied with discovery and served verified responses prior to the hearing date. JMI asked plaintiff’s counsel on three separate dates to withdraw the motion and cited St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776. (Declaration of Wong, at p. 5). Defendant further avers that the plaintiff did not file a motion to compel further responses.
Separately, JMI seeks sanctions against the plaintiff under Code of Civil Procedure section 128.5 for failing to withdraw this motion after receiving verified responses and rendering the motion moot. (Opposition, at p. 17). Defense counsel requested that the plaintiff withdraw its motion on March 5, July 9, and July 10, 2026. (Id.). Per JMI, plaintiff’s counsel conditioned any withdrawal on provisions of unrelated defense medical examinations and depositions, thus leveraging other discovery in bad faith or tactics. Thus, JMI seeks $4,025.00 against the plaintiff for attorney’s fees based on nine hours of work researching, reviewing, and opposing the motion, and 2 hours of anticipatory time in reviewing a reply brief –no reply brief was submitted—and 0.5 hours for attending the court hearing for a total of 11.5 hours at the hourly rate of $350.00.
V. CONCLUSION Based on the foregoing, and the defendant JMI serving verified responses on March 19, 2026 prior to the hearing, the motion to deem admissions admitted is rendered MOOT. Thus, the plaintiff’s request for sanctions is DENIED.
Based on the procedural history and timeline of the motion and opposition, the defendant’s motion for sanctions is DENIED. Both parties are admonished that discovery is not to be misused and any future motions to compel and request for sanctions will be scrutinized for monetary and evidentiary sanctions. The Court will prepare the formal Order.
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