Preview
1 JACKSON LEWIS P.C.
JAMES T. JONES (SDN 167967) FlLED/EI00RSED
2 400 Capitol Mall, Suite 1600
Sacramento, Califomia 95814
3 Telephone: (916) 341-0404 AUG 1 6 2022
Facsimile: (916)341-0141
4 Email: james.jones^jacksonlewis.com By;. p. Viifi
Depu^y Clerk
5 JACKSON LEWIS P.C.
BENJAMIN A. MAINS (SBN 274056)
6 50 Califomia Street, 9"^ Floor
San Francisco, Califomia 94111
7 Telephone: (415)394-9400
Facsimile: (415)394-9401
8 Email: ben)amin.mains@iack:sonlewis.com
9 Attorneys for Defendant
LIQUI-BOX CORPORATION
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13 SAJIDA ZAMAN, CASE NO. 34-2019-00252121-CU-WT-GDS
14 Plaintiff, DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION FOR
15 vs. REQUESTS FOR ADMISSIONS, SET
ONE (1), BE DEEMED ADMITTED, AND
16 MONETARY SANCTIONS
LIQUI-BOX CORPORATION, and DOES 1
17 through 20, inclusive. Advanced Date: August 25, 2022
Time: 1:30 p.m.
18 Defendants. Dept: 53 p y FAY
Reservation ID: 2656706
19
Complaint Filed: March 8, 2019
20 Trial Date: September 12, 2022
21 I. INTRODUCTION
22 Plaintiffs motion to have her Requests for Admissions, Set One, deemed admitted must be
23 denied because Defendant has served Code compliant responses, without objections, in advance of
24 the hearing date, and the law therefore mandates that the motion be denied. Furthermore, two days
25 after the responses were due. Plaintiffs counsel knew the facts and circumstances justified relief
26 ///
27 ///
28 ///
1
Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted,
and Monetary Sanctions
1 under the Code, and they should have withdrawn this motion. The motion was not necessitated to
2 obtain responses, and therefore sanctions against Defendant or its counsel should be denied.'
3 II. STATEMENT OF FACTS
4 On May 27, 2022, Plaintiff electronically served Defendant with Plaintiffs Requests for
5 Admissions, Set One. They were delivered without a proof of service. The proof of service was
6 not delivered until May 31, 2022. (Declaration of James T. Jones In Support of Defendant's
7 Opposition to Motion ("Jones Decl."), | 2, Exh. A) Defendant's last day to respond to the Requests
8 for Admissions should have been calculated and calendared based upon the date the Requests were
9 served. May 27, not the date when the proof of service was received. May 31. Because the requests
10 were electronically served, the last day to respond should have been June 28, 2022. However,
11 Defense counsel's calendaring department made an error and calendared the response date based
12 upon the date the proof of service was received. Due to that error, an entry was made in the
13 calendaring system indicating responses were due on July 5, 2022. (Jones Decl., | 3, Exh. B.)
14 On June 29,2022, the day after the responses were due, without making any effort to resolve
15 matters informally. Plaintiff filed her motion to have the requests deemed admitted and requested
16 sanctions. On June 30, 2022, Defense counsel sent an email to Plaintiffs counsel and explained
17 the circumstances related to the calendaring error. (Jones Decl., 4, Exh. C.) Because Defense
18 counsel and his staff believed a response was not due until July 5, 2022, no response or objections
19 were served on the date they were actually due. (Jones Decl., 14, Exh. C.) In the June 30 email,
20 Defense counsel requested that Plaintiff withdraw the motion and grant an extension to respond,
21 with objections as appropriate. (Jones Decl., 4 and 5, Exh. C.) Rather than withdraw the motion,
22 or even discuss Defendant's request, Plaintiffs counsel castigated Defense counsel stating it was
23 inappropriate to, "throw your calendar clerk under the bus for allegedly failing to calendar the due
24 dates." Plaintiffs counsel further stated, "we find these excuses without merit and unbelievable ..
25 . ." (Jones Decl., H 5.)
26
27 ' If sanctions are imposed, they should be imposed only against Defendant's counsel, Jackson
Lewis P.C. Defendant certainly has done nothing wrong. Defendant's counsel simply made an
28 excusable calendaring error that is not attributable in any way to Defendant.
2
Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted,
and Monetary Sanctions
1 Defendant has served Code compliant responses to Plaintiffs Requests for Admissions, Set One,
2 without objections, in advance of the original hearing date, and in advance of the modified hearing date.
3 (Jones Decl., ] | 6, Exh. D.) Due to the circumstances. Defendant requests and order from the Court
4 relieving Defendant from any waiver of objections to the Requests for Admission and permitting
5 Defendant to serve appropriate objections to accompany the responses previously served.
6 111. LEGAL ARGUMENT
7 "[A] deemed admitted order establishes, by judicial fiat, that the nonresponding party has
8 responded to the requests by admitting the truth of all matters contained therein." St. Mary v.
9 Superior Court (2014) 223 Cal.App.4''^ 762, 776. Code of Civil Procedure section 2033.280(c)
10 states that the court shall order matters admitted for failure to serve a timely response "unless it
11 finds that the party to whom the requests for admission have been directed served, before the
12 hearing on the motion, a proposed response to the requests for admission that is in substantial
13 compliance with section 2033.220." A responding party's service of substantially compliant
14 responses to the requests for admission before the hearing on a "deemed admitted" motion will
15 defeat the moving party's motion. St Mary, 223 Cal.App.4''' at 776. Because Defendant has
16 served Code compliant responses. Plaintiffs motion to have the requests deemed admitted must be
17 denied.
18 Generally, a party who does not timely respond to a request for admissions waives
19 objections to the request. (Code of Civil Procedure section 2033.280.) However, under Code of
20 Civil Procedure section 2033.280(a), a party may be relieved from the waiver of objections to the
21 request for admissions where the party has subsequently served a response that is in substantial
22 compliance with the Code, and the party's failure to serve a timely response was the result of
23 mistake, inadvertence, or excusable neglect. The error by Defense counsel's calendaring
24 department was certainly an inadvertent mistake and is excusable. Therefore, Defendant's request
25 for relief from a waiver of objections should be granted.
26 The court must order sanctions where a failure to respond necessitates a motion to compel
27 responses. Code of Civil Procedure section 2033.280(c); Stover v. Bruntz (2017) 12 Cal.App.5'''
28 19, 32 (imposing sanctions when the responding party failed to serve responses to the requests for
3
Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted,
and Monetary Sanctions
1 admission before the hearing.) In this matter, responses have been served far in advance of the
2 original hearing date and the modified hearing date. Furthermore, opposing counsel was informed
3 of the error made by Defense counsel's calendaring department, which confused the date of service
4 with the date the proof of service was received. Plaintiffs motion, which was filed just one day
5 after the response date, could have been avoided by simply alerting Defendant's counsel that
6 responses had not been received. Even if there was no duty to meet and confer before filing the
7 motion, that does not mean the motion was necessitated. When Defense counsel reached out, one
8 day after the motion was filed, and only two days after the responses were due, to explain the
9 circumstances justifying some additional time to respond. Plaintiffs counsel turned to insult and
10 accusation rather than diplomacy. Thus, the Court is burdened with a motion that is patently
11 unnecessary. Accordingly, Defendant requests that sanctions also be denied.
12 IV. CONCLUSION
13 For the foregoing reasons. Defendant respectfully requests that the Court deny Plaintiffs
14 motion and request for sanctions in its entirety.
15 Dated: August 16, 2022 JACKSON LEWIS P.C.
16 '.Jro^'^^l-J
By: ^-
17
JAMES T. JONES
18 „
Attorneys for Defendant
19 LIQUI-BOX CORPORATION
20
21
22
23
24
25
26
27
28
Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted,
and Monetary Sanctions
1 PROOF OF S E R V I C E
2 I am employed in the County of Sacramento, State of Califomia. I am over the age of
eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 400
3 Capitol Mall, Suite 1600, Sacramento, Califomia 95814.
4 On August 16, 2022,1 served the within:
5 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REQUESTS FOR
ADMISSIONS, SET ONE (1), BE DEEMED ADMITTED, AND MONETARY
6 SANCTIONS
7 on all interested parties in said action, through their attorneys of record as listed below, by placing
a true and correct copy thereof, addressed as shown below, by the following means:
8
I I PERSONAL SERVICE - by causing personal delivery of a true and correct copy
9 thereof to the person at the address set forth below, in accordance with Code of Civil
Procedure section 1011(a).
10
I I M A I L - by placing a true and correct copy thereof enclosed in a sealed envelope with
11 postage thereon fully prepaid for deposit in the United States Post Office mailbox, at my
business address shown above, following Jackson Lewis P.C.'s ordinary business
12 practices for the collection and processing of mail, of which I am readily familiar, and
addressed as set forth below. On the same day correspondence is placed for collection
13 and mailing, it is deposited in the ordinary course of business with the United States
Postal Service.
14
I I OVERNIGHT DELIVERY - by depositing a true and correct copy thereof enclosed in
15 a sealed envelope with delivery fees thereon fully prepaid in a box or other facility
regularly maintained by UPS or delivering to an authorized courier or driver authorized
16 by UPS to receive documents, addressed as set forth below.
17 ^ E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil
Procedure Section 10I0.6(e)(l)(2), 1 caused the document(s) described above to be sent
18 from e-mail address kellv.asano@iacksonlewis.com to the person(s) at the e-mail
address(es) listed below. 1 did not receive, within a reasonable time after the
19 transmission, any electronic message or other indication that the transmission was
unsuccessful.
20
Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246)
21 FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C.
1901 Avenue of the Stars, Suite 450 1010 F Street, Suite 300
22 Los Angeles, CA 90067 Sacramento, CA 95814
Telephone: (818)456-6168 Telephone: (916) 573-0469
23 Facsimile: (888) 505-0868 Facsimile: (866)700-0787
Email: Josh(a),Falakassalaw.com Email: ash@libertvmanlaw.com
24 1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing
25 is true and correct, and that this declaration was executed on August 16, 2022 at Sacramento,
Califomia.
26
27 Kelly Asano
28
PROOF OF SERVICE
Preview
1 JACKSON LEWIS P.C. JAMES T. JONES (SDN 167967) FlLED/EI00RSED 2 400 Capitol Mall, Suite 1600 Sacramento, Califomia 95814 3 Telephone: (916) 341-0404 AUG 1 6 2022 Facsimile: (916)341-0141 4 Email: james.jones^jacksonlewis.com By;. p. Viifi Depu^y Clerk 5 JACKSON LEWIS P.C. BENJAMIN A. MAINS (SBN 274056) 6 50 Califomia Street, 9"^ Floor San Francisco, Califomia 94111 7 Telephone: (415)394-9400 Facsimile: (415)394-9401 8 Email: ben)amin.mains@iack:sonlewis.com 9 Attorneys for Defendant LIQUI-BOX CORPORATION 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 SAJIDA ZAMAN, CASE NO. 34-2019-00252121-CU-WT-GDS 14 Plaintiff, DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR 15 vs. REQUESTS FOR ADMISSIONS, SET ONE (1), BE DEEMED ADMITTED, AND 16 MONETARY SANCTIONS LIQUI-BOX CORPORATION, and DOES 1 17 through 20, inclusive. Advanced Date: August 25, 2022 Time: 1:30 p.m. 18 Defendants. Dept: 53 p y FAY Reservation ID: 2656706 19 Complaint Filed: March 8, 2019 20 Trial Date: September 12, 2022 21 I. INTRODUCTION 22 Plaintiffs motion to have her Requests for Admissions, Set One, deemed admitted must be 23 denied because Defendant has served Code compliant responses, without objections, in advance of 24 the hearing date, and the law therefore mandates that the motion be denied. Furthermore, two days 25 after the responses were due. Plaintiffs counsel knew the facts and circumstances justified relief 26 /// 27 /// 28 /// 1 Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted, and Monetary Sanctions 1 under the Code, and they should have withdrawn this motion. The motion was not necessitated to 2 obtain responses, and therefore sanctions against Defendant or its counsel should be denied.' 3 II. STATEMENT OF FACTS 4 On May 27, 2022, Plaintiff electronically served Defendant with Plaintiffs Requests for 5 Admissions, Set One. They were delivered without a proof of service. The proof of service was 6 not delivered until May 31, 2022. (Declaration of James T. Jones In Support of Defendant's 7 Opposition to Motion ("Jones Decl."), | 2, Exh. A) Defendant's last day to respond to the Requests 8 for Admissions should have been calculated and calendared based upon the date the Requests were 9 served. May 27, not the date when the proof of service was received. May 31. Because the requests 10 were electronically served, the last day to respond should have been June 28, 2022. However, 11 Defense counsel's calendaring department made an error and calendared the response date based 12 upon the date the proof of service was received. Due to that error, an entry was made in the 13 calendaring system indicating responses were due on July 5, 2022. (Jones Decl., | 3, Exh. B.) 14 On June 29,2022, the day after the responses were due, without making any effort to resolve 15 matters informally. Plaintiff filed her motion to have the requests deemed admitted and requested 16 sanctions. On June 30, 2022, Defense counsel sent an email to Plaintiffs counsel and explained 17 the circumstances related to the calendaring error. (Jones Decl., 4, Exh. C.) Because Defense 18 counsel and his staff believed a response was not due until July 5, 2022, no response or objections 19 were served on the date they were actually due. (Jones Decl., 14, Exh. C.) In the June 30 email, 20 Defense counsel requested that Plaintiff withdraw the motion and grant an extension to respond, 21 with objections as appropriate. (Jones Decl., 4 and 5, Exh. C.) Rather than withdraw the motion, 22 or even discuss Defendant's request, Plaintiffs counsel castigated Defense counsel stating it was 23 inappropriate to, "throw your calendar clerk under the bus for allegedly failing to calendar the due 24 dates." Plaintiffs counsel further stated, "we find these excuses without merit and unbelievable .. 25 . ." (Jones Decl., H 5.) 26 27 ' If sanctions are imposed, they should be imposed only against Defendant's counsel, Jackson Lewis P.C. Defendant certainly has done nothing wrong. Defendant's counsel simply made an 28 excusable calendaring error that is not attributable in any way to Defendant. 2 Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted, and Monetary Sanctions 1 Defendant has served Code compliant responses to Plaintiffs Requests for Admissions, Set One, 2 without objections, in advance of the original hearing date, and in advance of the modified hearing date. 3 (Jones Decl., ] | 6, Exh. D.) Due to the circumstances. Defendant requests and order from the Court 4 relieving Defendant from any waiver of objections to the Requests for Admission and permitting 5 Defendant to serve appropriate objections to accompany the responses previously served. 6 111. LEGAL ARGUMENT 7 "[A] deemed admitted order establishes, by judicial fiat, that the nonresponding party has 8 responded to the requests by admitting the truth of all matters contained therein." St. Mary v. 9 Superior Court (2014) 223 Cal.App.4''^ 762, 776. Code of Civil Procedure section 2033.280(c) 10 states that the court shall order matters admitted for failure to serve a timely response "unless it 11 finds that the party to whom the requests for admission have been directed served, before the 12 hearing on the motion, a proposed response to the requests for admission that is in substantial 13 compliance with section 2033.220." A responding party's service of substantially compliant 14 responses to the requests for admission before the hearing on a "deemed admitted" motion will 15 defeat the moving party's motion. St Mary, 223 Cal.App.4''' at 776. Because Defendant has 16 served Code compliant responses. Plaintiffs motion to have the requests deemed admitted must be 17 denied. 18 Generally, a party who does not timely respond to a request for admissions waives 19 objections to the request. (Code of Civil Procedure section 2033.280.) However, under Code of 20 Civil Procedure section 2033.280(a), a party may be relieved from the waiver of objections to the 21 request for admissions where the party has subsequently served a response that is in substantial 22 compliance with the Code, and the party's failure to serve a timely response was the result of 23 mistake, inadvertence, or excusable neglect. The error by Defense counsel's calendaring 24 department was certainly an inadvertent mistake and is excusable. Therefore, Defendant's request 25 for relief from a waiver of objections should be granted. 26 The court must order sanctions where a failure to respond necessitates a motion to compel 27 responses. Code of Civil Procedure section 2033.280(c); Stover v. Bruntz (2017) 12 Cal.App.5''' 28 19, 32 (imposing sanctions when the responding party failed to serve responses to the requests for 3 Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted, and Monetary Sanctions 1 admission before the hearing.) In this matter, responses have been served far in advance of the 2 original hearing date and the modified hearing date. Furthermore, opposing counsel was informed 3 of the error made by Defense counsel's calendaring department, which confused the date of service 4 with the date the proof of service was received. Plaintiffs motion, which was filed just one day 5 after the response date, could have been avoided by simply alerting Defendant's counsel that 6 responses had not been received. Even if there was no duty to meet and confer before filing the 7 motion, that does not mean the motion was necessitated. When Defense counsel reached out, one 8 day after the motion was filed, and only two days after the responses were due, to explain the 9 circumstances justifying some additional time to respond. Plaintiffs counsel turned to insult and 10 accusation rather than diplomacy. Thus, the Court is burdened with a motion that is patently 11 unnecessary. Accordingly, Defendant requests that sanctions also be denied. 12 IV. CONCLUSION 13 For the foregoing reasons. Defendant respectfully requests that the Court deny Plaintiffs 14 motion and request for sanctions in its entirety. 15 Dated: August 16, 2022 JACKSON LEWIS P.C. 16 '.Jro^'^^l-J By: ^- 17 JAMES T. JONES 18 „ Attorneys for Defendant 19 LIQUI-BOX CORPORATION 20 21 22 23 24 25 26 27 28 Defendant's Opposition to Plaintiffs Motion for Requests for Admissions, Set One (1), be Deemed Admitted, and Monetary Sanctions 1 PROOF OF S E R V I C E 2 I am employed in the County of Sacramento, State of Califomia. I am over the age of eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 400 3 Capitol Mall, Suite 1600, Sacramento, Califomia 95814. 4 On August 16, 2022,1 served the within: 5 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR REQUESTS FOR ADMISSIONS, SET ONE (1), BE DEEMED ADMITTED, AND MONETARY 6 SANCTIONS 7 on all interested parties in said action, through their attorneys of record as listed below, by placing a true and correct copy thereof, addressed as shown below, by the following means: 8 I I PERSONAL SERVICE - by causing personal delivery of a true and correct copy 9 thereof to the person at the address set forth below, in accordance with Code of Civil Procedure section 1011(a). 10 I I M A I L - by placing a true and correct copy thereof enclosed in a sealed envelope with 11 postage thereon fully prepaid for deposit in the United States Post Office mailbox, at my business address shown above, following Jackson Lewis P.C.'s ordinary business 12 practices for the collection and processing of mail, of which I am readily familiar, and addressed as set forth below. On the same day correspondence is placed for collection 13 and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 14 I I OVERNIGHT DELIVERY - by depositing a true and correct copy thereof enclosed in 15 a sealed envelope with delivery fees thereon fully prepaid in a box or other facility regularly maintained by UPS or delivering to an authorized courier or driver authorized 16 by UPS to receive documents, addressed as set forth below. 17 ^ E-MAIL OR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil Procedure Section 10I0.6(e)(l)(2), 1 caused the document(s) described above to be sent 18 from e-mail address kellv.asano@iacksonlewis.com to the person(s) at the e-mail address(es) listed below. 1 did not receive, within a reasonable time after the 19 transmission, any electronic message or other indication that the transmission was unsuccessful. 20 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246) 21 FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C. 1901 Avenue of the Stars, Suite 450 1010 F Street, Suite 300 22 Los Angeles, CA 90067 Sacramento, CA 95814 Telephone: (818)456-6168 Telephone: (916) 573-0469 23 Facsimile: (888) 505-0868 Facsimile: (866)700-0787 Email: Josh(a),Falakassalaw.com Email: ash@libertvmanlaw.com 24 1 declare under penalty of perjury under the laws of the State of Califomia that the foregoing 25 is true and correct, and that this declaration was executed on August 16, 2022 at Sacramento, Califomia. 26 27 Kelly Asano 28 PROOF OF SERVICE