MACFARLANE PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs WARREN, et al.

23CV013826: MACFARLANE PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs WARREN, et al. 09/19/2024 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

Tentative Ruling

NOTICE:

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23CV013826: MACFARLANE PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs WARREN, et al. 09/19/2024 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

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:

Plaintiff MacFarlane Partners, LLC’s (“Plaintiff”) motion to deem requests for admissions admitted is UNOPPOSED and GRANTED unless Defendant Allen W. Warren (“Defendant”) serves, “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, subd.(c).)

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing.

Plaintiff served Defendant with its first set of requests for admission on March 14, 2024. (Declaration of Fredrick C. Crombie (“Crombie Decl.”) ¶2, Exh. A.) On April 11, 2024, Defendant requested an extension to provide responses, which Plaintiff granted such that responses were due on May 2, 2024. (Crombie Decl. ¶3, Exh. B.) After close of business on May 2, 2024, Defendant against requested a further extension. (Crombie Decl. ¶4, Exh. C.) Plaintiff granted a further extension until May 16, 2024 but noted that since the responses were untimely prior to the request, any objections were waived. (Crombie Decl. ¶3, Exh. C.) At the time the motion was filed, Defendant had not responded to the subject discovery. (Crombie Decl. ¶5.)

Plaintiff now moves to deem the matters in its request for admissions admitted. Defendant did not file any opposition. A party’s failure to oppose a motion is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.)

Code of Civil Procedure section 2033.280 provides that where a party to whom requests for admissions have been directed fails to serve a timely response, the party waives any objection to the requests, and that the requesting party may move for an order that the truth of any facts enumerated in the requests shall be deemed admitted. Defendant failed to serve any responses or objections to the subject discovery. Therefore, Plaintiff’s motion to deem the matters in the subject discovery admitted is GRANTED unless Plaintiff serves, “before the hearing on the motion,” proposed responses that are in substantial compliance with Code of Civil Procedure

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV013826: MACFARLANE PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs WARREN, et al. 09/19/2024 Hearing on Motion to Deem Request for Admissions Admitted in Department 53

section 2033.220. (Code Civ. Proc. § 2033.280, subd. (c).)

The Court notes that on September 12, 2024, Plaintiff filed a reply acknowledging that (1) Defendant did not oppose the instant motion and (2) Defendant served responses to Plaintiff’s request for admissions, set one on September 10, 2024. (See Declaration of Anita Chu (“Chu Decl.”) ¶3.) The Court makes no determination whether Defendant’s belated responses are in substantial compliance with Code of Civil Procedure section 2033.220.

Plaintiff’s request for sanction is DENIED. While sanctions to requests for admissions are mandatory, discovery sanctions may be imposed only after proper notice. (Code Civ. Proc. §2023.050, subd.(d). The notice of motion fails to provide notice that sanctions are being requested or to specify the type of sanctions sought and the person, party and/or attorney against whom sanctions are requested. (Code Civ. Proc. §2023.040.) The Court further notes that Plaintiff requested further monetary sanctions for filing a reply to an unopposed motion. (Chu Decl. ¶4.) As no reply was necessary, the Court would not have awarded these additional sanctions in any event.

The minute order is effective immediately. No formal order pursuant to California Rule of Court 3.1312 or further notice is required.