Matthew Palleschi, et al. v. Daniel Fraiman Construction, Inc., et al.

sufficient facts as to what act or acts were performed by Defendant Hasbun that furthered the common design or conspiracy. The demurrer is well taken.

For the reasons noted previously, the Court will permit leave to amend.

8. CU0000090 Matthew Palleschi, et al. v. Daniel Fraiman Construction, Inc., et al.

The Court previously continued the hearing for this discovery matter from April 10, 2026, to April 17, 2026, at 10:00 a.m., with the following tentative ruling:

The Court grants Plaintiff Palleschi’s motion for an order deeming its Requests for Admission (Set Three) directed to Defendant Daniel Fraiman Construction, Inc. (“DFC, Inc.”) as admitted, unless DFC serves substantially compliant responses before the scheduled hearing. The Court denies, as moot, Plaintiff’s motion for an order directing Defendant DFC, Inc. to provide further responses to Plaintiff’s Requests for Admission (Set Three) and related Plaintiff’s Construction Form Interrogatory No. 326.1. The motion for monetary sanctions against DFI, Inc. and its counsel is granted.

Plaintiff argues the Court should order that the truth of all matters specified in Plaintiff’s requests for admission, set three, be deemed admitted because Defendant DFC, Inc. failed to serve verified responses to Plaintiff’s Requests for Admission, Set Three (“RFAs”). DFC, Inc. argues it served compliant, verified responses and that the motion to deem admitted is inappropriate as a matter of law. Plaintiff has the better argument.

“The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.”1 Code Civ. Proc. § 2033.240(a). “If that party is a .... private corporation . . . one of its officers or agents shall sign the response under oath on behalf of that party.” Code Civ. Proc. § 2033.240(b) (italics supplied).

A “response to [an] RFA ...fail[s] to conform to the statutory prescription” if “it was not signed by a party and was not under oath.” Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1550–1551, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 “Unsworn [or unverified] responses are tantamount to no responses at all.” Allen Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1550-1551, citing Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636 and Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.

A party may move for an order deeming the request for admissions admitted if the party to whom they are directed has failed to serve a timely response. Code Civ. Proc. § 2033.280(b). More specifically:

In the event responses to RFAs are not timely served, the responding party waives any objections thereto (§ 2033.280, subd. (a)), and “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the

1 The exception to this requirement, for responses with only objections, is not at issue. 8

requests be deemed admitted, as well as for a monetary sanction” (id. subd. (b)). Unless the court determines that the responding party “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 must order the RFAs deemed admitted. (Id. subd. (c).) “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox, supra, 21 Cal.4th at p. 979, 90 Cal.Rptr.2d 260, 987 P.2d 727.)

The court must also impose monetary sanctions upon the party and/or the attorney for the failure to serve a timely response to the RFAs. (§ 2033.280, subd. (c).) But a responding party's service, prior to the hearing on the “deemed admitted” motion, of substantially compliant responses, will defeat a propounding party's attempt under section 2033.280 to have the RFAs deemed admitted. (Tobin v. Oris (1992) 3 Cal.App.4th 814, 827, 4 Cal.Rptr.2d 736 (Tobin).) As one court put it: “If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion.

But woe betide the party who fails to serve responses before the hearing. In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you're out’ as applied to civil procedure.” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395–396, 42 Cal.Rptr.2d 260, fns. omitted (Demyer).)

St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.

At bar, the verification in connection with Defendant DFC, Inc.’s response to the request for admissions is legally inadequate. While Daniel Fraiman apparently signed the verification, there is no adequate indication that he executed the same as an officer or agent on behalf of the party requested to make the admission. See 3/16/26 Pl. Mot., Ex D. Indeed, the portion of the verification that calls for identification of the position of Fraiman vis a vis DFC, Inc. is left blank.2 The verification purportedly on behalf of DFC, Inc. does not meet the requirement that an officer or agent of the private party “shall sign the response under oath on behalf of that party.” Code Civ. Proc. § 2033.240(b) (italics supplied). 3

The conduct of Defendant necessitated this motion. Sanctions are mandatory and appropriate. See Code Civ. Proc. 2033.280(c). Sanctions are awarded jointly and severally against DFC, Inc. and its counsel.

2 On at least one previous verification, no such omission was made. See, e.g., 3/16/26 Pl. Mot., Ex G. 3 Plaintiff has advised the Court that DFC, Inc. is apparently not a going concern and was never a proper party to this action. Per Plaintiff, “Daniel Fraiman Construction” is the correct party. The Court defers to the parties to address this situation as deemed appropriate. 9