MCKAGUE LAW GROUP, PC vs SHIRLEY

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 12/16/2025 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendants/cross-complainants Lori McCracken, et al.’s (collectively “McCracken”) “second/further” motion to deem admitted the Requests for Admissions which they previously propounded on defendant/cross-defendant in pro per Nathan Cole’s responses to Form Interrogatories and for monetary sanctions is ruled upon as follows.

Factual Background

This is an action for interpleader by a law firm which previously negotiated a settlement on behalf of its clients, who were ultimately unable to agree on a distribution of the settlement proceeds. Defendant in pro per Cole filed an answer to the complaint on 12/19/2024 but defendants McCracken and Shirley also filed a cross-complaint against defendant Cole for declaratory relief, common counts and accounting. No trial date has been set.

In February 2024, McCracken filed separate motions not only to compel Cole’s responses to Interrogatories and Requests for Production but also to deem admitted the Requests for Admissions which had been propounded to Cole. Cole filed no written opposition or other objection to any of these motions to compel and on 7/16/2025, the Court granted all of McCracken’s motions. More specifically, the Court not only ordered Cole to provide verified responses, without objections, to McCracken’s Form and Special Interrogatories and Requests for Production no later than 7/29/2025 but also granted the motion to deem admitted “unless [Cole], ‘before the hearing on the motion,’ proposed responses that are in substantial compliance with Code of Civil Procedure section 2033.220. (Code Civ. Proc. § 2033.280(c).).” This latter order included the following language in boldface print and underlined:

If substantial compliance occurs before the hearing, the parties are required to appear at hearing and inform the court. If such appearance does not occur, the Court will presume no such substantial compliance has occurred, and the motion will be granted. (7/16/2025 Min. Order.)

According to the Court’s 7/16/2025 Minute Order on the motion to deem admitted, Cole

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 12/16/2025 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

appeared for oral argument on 7/16/2025 but specifically noted the following:

There was no evidence or argument submitted that any responses were served that were in substantial compliance with Code of Civil Procedure section 2033.220.

As such, based on the plain language of the 7/16/2025 Minute Order, the motion to deem admitted was granted since there had been no showing of “substantial compliance” and since “the Court will presume no such substantial compliance has occurred.”

Curiously, although the 7/16/2025 Minute Order on the motion to deem admitted did not by its own terms require or compel Cole to take any particular action with respect to the underlying Requests for Admissions (for which requests were deemed admitted), he nevertheless subsequently filed with the Court on 7/29/2025 and later delivered to McCracken’s counsel on 8/4/2025, albeit without any proof of service, purported responses to the Requests for Admissions which not only include objections but also are not verified. Again, per the Court’s 7/16/2025 Minute Order, such late proposed responses to the Requests for Admissions do not impact or change the 7/16/2025 order of deemed admissions.

Moving Papers. McCracken now apparently seeks “an order that the Court’s previous order of July 16, 2025 as to the Requests for Admission, Set One, propounded on Defendant/Cross-Defendant NATHAN COLE be enforced, and additional sanctions be granted on the grounds that [Cole] has filed and late served Responses to Requests for Admission (Set One) after the court ordered that these Requests were deemed admitted ” (Not. of Mot., p.2:1-6.) The moving papers also include a request for terminating, evidentiary and monetary sanctions against Cole.

Opposition. Defendant in pro per Cole untimely filed on 12/8/2025 a purported opposition which may or may not actually pertain to the present motion, even though the deadline for such opposition was actually 12/3/2025. (See, Code Civ. Proc. §1005(b).) In fact, assuming arguendo this opposition is directed to the present motion, Cole’s opposition was so late as to be filed just one day prior to the deadline for the moving parties to file their reply papers (Id.) and to effectively deny the moving parties a meaningful opportunity to prepare appropriate reply papers.

Under such circumstances and again assuming arguendo this opposition is in fact directed to the present motion, this Court exercises its inherent discretion by disregarding in its entirety Cole’s untimely opposition to this motion but in any event, the Court adds that none of the arguments advanced in the untimely opposition filed on 12/8/2025 has any genuine bearing on the ultimate disposition of the current motion.

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24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 12/16/2025 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

While Cole’s untimely opposition papers contend that (1) the underlying discovery requests were improperly served before McCracken served the cross-complaint and were improperly served on Cole by “substituted service;” (2) McCracken’s discovery requests seek documents “equally obtainable by all parties;” and (3) McCracken failed to meet and confer, such contentions are relevant only to the disposition of the earlier motions and these arguments should therefore have been advanced in a timely opposition to the earlier motions.

However, as noted above, Cole filed no written opposition or other objection to any of these earlier motions by McCracken and although Cole did appear at the hearing on these earlier motions, the Court determined that each of the earlier motions were properly granted. As such, the three aforementioned arguments by Cole were not timely advanced by him and need not be considered here, as they have no bearing on the disposition of the current motion.

Cole’s remaining assertion that the earlier 7/16/2025 order was “obtained by misrepresentation” is fundamentally based on a combination of the three contentions discussed in the preceding paragraph. As such, this Court finds that the characterization of the 7/16/2025 being a result of “misrepresentation” not only lacks both factual and legal support but more importantly, Cole has to date neither sought nor obtained relief from the 7/16/2025 order based on his claim of being the product of some “misrepresentation” to the Court by McCracken.

To be clear, Cole is as a matter of law not entitled to obtain any affirmative relief relative to the 7/16/2025 order (or anything else) by virtue the arguments advanced in his current (untimely) opposition papers but he was instead obligated in the first instance to pursue such relief via a properly-noticed and duly-served code-compliant motion. Thus, the Court need not reconsider in the context of the present motion, the earlier 7/16/2025 order on which McCracken’s present motion is premised.

Discussion

As noted above, the Court’s 7/16/2025 Minute Order on the Requests for Admissions expressly stated that the motion to deem admitted is “GRANTED, unless [Cole], ‘before the hearing on the motion,’ proposed responses that are in substantial compliance with Code of Civil Procedure section 2033.220. (Code Civ. Proc. § 2033.280(c).).” This 7/16/2025 Minute Order also specifically noted that Cole appeared for oral argument but “[t]here was no evidence or argument submitted that any responses were served that were in substantial compliance with Code of Civil Procedure section 2033.220.” Thus, pursuant to the plain language of the 7/16/2025 Minute Order, the motion to deem admitted was granted as there had been no showing of “substantial compliance” and “the Court will presume no such substantial compliance has occurred.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 12/16/2025 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

In light of the foregoing, this Court holds that Cole’s filing with the Court on 7/29/2025 and subsequent delivery to McCracken’s counsel on 8/4/2025 purported responses to the Requests for Admissions was in effect a nullity and did not in any way alter the 7/16/2025 Minute Order granting the motion to deem admitted or otherwise affect the import of same. To be sure, while Code of Civil Procedure §2033.280 does permit under certain circumstances relief from waiver of objections and §2033.300 does permit under certain circumstances the withdrawal or amendment of an admission, Cole has to date neither sought nor obtained an order granting either form of relief (and the Court here expresses no opinion about whether or not such relief might be appropriate in this instance).

Consequently, McCracken’s present request for “an order that the Court’s previous order of July 16, 2025 as to the Requests for Admission, Set One, propounded on Defendant/Cross-Defendant NATHAN COLE be enforced” is DROPPED as moot but it is worth adding here that the Court is aware of no legal authority permitting a party to make a purported motion to “enforce” a prior order granting a motion to deem admitted, thereby precluding this Court from granting such relief here.

To the extent this motion alternatively seeks an order compelling Cole’s responses to the underlying Requests for Admissions, it is denied because Code of Civil Procedure §2033.010 et seq. does not authorize such a motion. Instead, §2033.280 merely permits a motion to deem admissions admitted but as noted above, this Court already granted such a motion on 7/16/2025 and it need not issue a second, redundant order here.

McCracken’s concurrent request for monetary sanctions pursuant to Code of Civil Procedure §2033.280 is DENIED because, as discussed above, the present motion is not fairly characterized as one under §2033.280 seeking to have matters deemed admitted but instead merely a motion which appears to seek, albeit without legal authority, an order “enforc[ing]” the prior order granting McCracken’s motion to deem admitted.

The Court also declines to grant McCracken’s additional requests for terminating, issue and/or evidentiary sanctions. Aside from the fact that the lack of legal authority for this Court to grant McCracken’s motion to “enforce” the order granting the prior motion to deem admitted, the Court finds that none of these requested sanctions are warranted at this time. For misuse of the discovery process, the Court may impose sanctions, up to and including terminating sanctions, if authorized by another provision of the Civil Discovery Act. (Code Civ.

Proc. §2023.030, subd. (a)-(d).) Failing to respond to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc. §2023.010, subd. (d).) Where a party fails to obey an order compelling responses, the Court is authorized to impose sanctions, including issue, evidence, or terminating sanctions. (Code Civ. Proc. §§2030.290, subd. (c) & 2031.300, subd. (c).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 12/16/2025 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

The Court may also impose a monetary sanction, either in lieu of or in addition to an issue, evidence, or terminating sanction. (Id.)

The Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. 174 Cal.App.4th 967, 991-992.) The Court may impose sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the Court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 304.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)

“A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Sanctions are generally imposed in an incremental approach starting with monetary sanctions, with terminating sanctions being a last resort. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

Based on the present record, this Court concludes that the drastic remedy of terminating sanctions is not appropriate at this time and would under the circumstances here constitute an unjustified windfall to McCracken. Accordingly, to the extent this motion seeks terminating sanctions against Cole, it is denied.

McCracken’s request for issue and/or evidentiary sanctions precluding Cole “from providing argument or evidence to support any claims against [McCracken] or to support a defense to the Cross-Complaint” (Mov. MPA, p.6:9-11) shall also be denied. First, the broad scope of the proposed issue and/or evidentiary sanction would have essentially the same effect as a terminating sanction and is inappropriate at this time for the reasons explained above. Second, CRC Rule 3.1345(a)(7) expressly requires that a separate statement be filed and served when any issue or evidentiary sanctions are sought but here, McCracken filed no separate statement in support of the present motion.

Third and perhaps most importantly, the 7/16/2025 order granting McCracken’s prior motion to deem admitted did not actually compel Cole to do (or not do) anything and thus, it cannot be fairly said that he has failed to comply with the 7/16/2025 order granting McCracken’s prior motion to deem admitted.

Moving parties to provide notice of this ruling and file proof of service of same

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV019993: MCKAGUE LAW GROUP, PC vs SHIRLEY 12/16/2025 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

within five (5) court days.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)