David R. Lajeunesse vs. James Albert

Motion to Deem Answers Admitted

Cal. Super. - 4th Dist.February 16, 2016

N D 1 N h B W N Y N N N o N N N R O N e m e m m m o d me m pe d e m pe d e d e s 0 N N n n B R W N O C 0 N N R W = O o SIMON & SIMON, LLP Jeffrey S. Simon, Esq. (State Bar#146658) David A. Simon, Esq. (State Bar#172307) Cameron D. Aronson, Esq. (State Bar#305663) 4100 Newport Place, Suite 850 Newport Beach, California 92660 (949) 585-5150 (949) 585-5151 (FAX) Attorneys for Plaintiffs David and Loree Lajeunesse SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER DAVID R. LAJEUNESSE, an individual, Case No.: 30-2016-00835348-CU-BC-CIC LOREE L. LAJEUNESSE, an individual, } Assigned for all purposes to: . fen Honorable Judge Linda S. MarksPlaintiffs, Dept: C-10 Vs. NOTICE OF MOTION AND MOTION ) ) ) ) ) ) JAMES ALBERT,an individual; DAWN ) TO DEEM THE ADMISSIONS OF ) ) ) ) ) ALBERT,an individual; and DOES 1 through 25, inclusive, DEFENDANT JAMES ALBERT ADMITTED AND REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT JAMES ALBERT AND/OR HIS ATTORNEY OF RECORD, PAUL S. SIENSKI; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFFREY S. SIMON IN SUPPORT THEREOF Defendants. Date: September 19, 2016 Time: 10:00 a.m. Dept.: C-10 Reservation Number; 72408996 1 MOTION TO DEEM ADMISSIONS ADMITTED O 0 0 N N N Y n n R k W N B N R R N N N N N N e e e m e m e m be e e l pe d p e pe d p e ° K N Y n n B R W N = O Y e N N i R W N = D o TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: Please take notice that on September 19, 2016, at 10:00 a.m., in Department C-10 ofthe above captioned court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Plaintiffs DAVID R. LAJEUNESSE and LOREE L. LAJEUNESSE (collectively “Plaintiffs”) will and do hereby respectfully move this Court for an Order to Deem the Admissions of Defendant JAMES ALBERT (“Defendant”), an individual, Admitted as to each request in Plaintiffs’ First Set of Requests for Admission, and for a further Order that Defendant and/or his attorney of record, Paul Sienski, of the Law Offices of Paul Sienski, pay a monetary sanction of $1,650.00 to Plaintiffs on the grounds that Defendant has misused the discovery process by failing without justification to respond to Plaintiffs’ First Set of Requests for Admission. Said Motionis based on this Notice, the accompanying Memorandum of Points and Authorities, the accompanying Declaration of Jeffrey S. Simon, upon all pleadings and papers on file inthis action, and upon such other matters as the Court may permit to be presented at the time of the hearing. DATED: July1 2016 SIMON & SIMON, LLP By: TY Jeffrey simon Attorneys for Plaintiffs David and Loree Lajeunesse 2 MOTION TO DEEM ADMISSIONS ADMITTED O e N N A N n n B R W N ) e s [\ "] N o N N n o N o b o N o r o [ = p d — — — _ —_ — — Po d — — _ 0 N N B R W N = D Y R O N N R W N e s MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION On or about February 16,2016, Plaintiffs DAVID LAJEUNESSE and LOREE LAJEUNESSE (collectively “Plaintiffs”) filed a Complaint against Defendants JAMES ALBERT, an individual; and DAWN ALBERT, an individual, (collectively “Defendants”) for breach of contract, breach of implied covenant of good faith and fair dealing, fraud, and negligent misrepresentation. On April 26, 2016, Plaintiffs served Defendant James Albert (“Defendant”) via U.S. Mail with Plaintiffs’ First Set of Requests for Admission. A true and correct copy of Plaintiffs’ First Set of Requests for Admission propounded to Defendant JAMES ALBERT is attached to the Declaration of Jeffrey S. Simon (“Simon Decl.”) as Exhibit “A”. The deadline for Defendant to respond to Plaintiffs’ Form Interrogatories was May 31, 2016. Plaintiffs received no timely responses. On May 31, 2016, Plaintiffs received a correspondence from Defendants requesting an extension for Defendant to respond to the already outstanding discovery. A true and correct copy of the correspondence from Defendant on May 31, 2016 is attached to the Simon Decl. as Exhibit “B”. So as to avoid judicial intervention, Plaintiffs granted an extension to June 14,2016, for Defendant to respond to Plaintiffs’ Form Interrogatories without objections. A true and correct copy of Plaintiffs’ correspondence from June 1, 2016 is attached to the Simon Decl. as Exhibit “C. On June 14, 2016, Defendant reached out to Plaintiffs to request an additional extension to Defendant’s responses to Plaintiffs’ discovery requests. Considering the personal nature of Defendant’s request for extension, Plaintiffs granted Defendant an additional extension. A true and correct copy of Defendants’ June 14, 2016, correspondence is attached to the Simon Decl. as Exhibit “D”. Following receipt of Defendant’s June 14, 2016, correspondence, Plaintiffs telephoned Defendant and extended an additional extension to Plaintiffs’ discovery requests. Defendant’s responses became due on June 22, 2016. On June 28, 2016, after not receiving any responses from Defendant, Plaintiffs sent 3 MOTION TO DEEM ADMISSIONS ADMITTED N o 0 N h R W R N = D N N N D N D N N N N N = h m m k pe d e d e m m l pe d p e p m © N A l s W N = D O 0 N N R W e e correspondence to Defendant requesting that Defendant provide verified responses, without objections, to Plaintiffs’ discovery requests by the close of business on June 30, 2016, or Plaintiffs would otherwise seek a motion to compel Defendant’s responses. A true and correct copy of the correspondence from Plaintiffs to Defendant dated June 30, 2016, is attached to the Simon Decl. as Exhibit “E”. As of July 1, 2016, Defendant has not provided any responses to Plaintiffs’ First Set of Requests for Admissions. Plaintiffs are thus left with no alternative but to obtain a court order compelling Defendantto fulfill his discovery obligations. Under the relevant statutes, Plaintiffs are entitled to reimbursement of their attorneys fees expended in bringing such a motion. IL. PLAINTIFFS ARE ENTITLED TO AN ORDER DEEMING THE ADMISSIONS OF DEFENDANT JAMES ALBERT ADMITTED AND FOR MONETARY SANCTIONS A. Statutory Authority Code of Civil Procedure, section 2033.210(a) provides in pertinent part: “(a) The party to whom requests for admission have been propounded shall respond in writing under oath separately to each request.” Section 2033.250(a) states: “Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the responseon all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” Section 2033.280 specifies that: “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). . . . (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 4 MOTION TO DEEM ADMISSIONS ADMITTED O X N N B W N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.” B. Defendant James Albert Has Failed to Respond to Plaintiffs’ First Set of Requests for Admission As shown by the Simon Decl. attached hereto, Plaintiffs served their First Set of Requests for Admission on April 26, 2016, by mail, to Defendant. (Simon Decl. § 2.) Under Code ofCivil Procedure Sections 2031.260, and 1013(a), Defendant had thirty five (35) days to respond thereto. Accordingly, Defendant’s responses were due on May 31, 2016. In response to the multiple requests for extension by Defendant, Plaintiffs granted extensions up to June 28, 2016 for Defendant to respond to Plaintiffs’ First Set of Requests for Admission without objections. (Simon Decl. 99 3-7.) As of the date of this filing, Defendant’s required responses have not been received by Plaintiffs, despite Plaintiffs’ good faith attempts to obtain such responses voluntarily and without judicial intervention. (Simon Decl.7.) C. Plaintiffs Are Entitled to Monetary Damages Against Defendant James Albert and/or His Attorney of Record, Paul Sienski Code of Civil Procedure Section 2023.010 describes one of the “misuses of the discovery process” as failing to respond to or submit to authorized discovery. Section 2031.290 provides that the Court shall impose such sanctions on anyone unsuccessfully opposing a motion to compel a response to a discovery request. As a result of Defendant’s unjustified refusal to provide discovery, which refusal has made this Motion necessary, and pursuant to Code of Civil Procedure § 2033.280(c), monetary sanctions in the amount of $1,375.00 should be imposed against Defendant and/or his attorney of record. (Simon Decl. § 8.) 1 5 MOTION TO DEEM ADMISSIONS ADMITTED N O 0 I N n n B R W N N O R O N N O N N N N N m m e m pm s pe d pe d fe d e m e m © N A w n B W N N - = O \ O c o N l S N S W N = o O III. CONCLUSION Based upon all of the foregoing, Plaintiffs respectfully request that the Motion for an Order Establishing Admissions of Defendant JAMES ALBERT to each request in Plaintiffs’ First Set of Requests for Admission be granted in its entirety and sanctions be awarded against Defendant JAMES ALBERT and/or his attorney of record, Paul Sienski, in the amount of $1,650.00. DATED: July 0’, 2016 SIMON & SIMON, LLP By: JZ Jeffrey S. Simon Attorneys for Plaintiffs David and Loree Lajeunesse 6 MOTION TO DEEM ADMISSIONS ADMITTED O 0 0 1 Y N n n B W NY ) e e N O R N N N N N N N R m m e e h e e d pe t pe d pe s e d Co O 1 O N h h B A W N s O N D N Y n n B W N = O O PROOF OF SERVICE I am employed in the County of Orange. I am over the age of eighteenyears and not a party to the within entitled action; my business address is 4100 Newport Place, Suite 850, Newport Beach, CA 92660. On July 14, 2016, I served a copy of the following document(s) described NOTICE OF MOTION AND MOTION TO DEEM THE ADMISSIONS OF DEFENDANT JAMES ALBERT ADMITTED AND REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT JAMES ALBERT AND/OR HIS ATTORNEY OF RECORD, PAUL S. SIENSKI; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFFREY S. SIMON IN SUPPORT THEREOF on the interested party(ies) in this action as ollows: Paul S. Sienski, Esq. Law Offices of Paul S. Sienski 711 South Brea Blvd. Brea, CA 92821-5310 (714) 990-5521 paulsienski@sienskilaw.com Attorney for Defendants James Albert and Dawn Albert [ 7 BY OVERNIGHT DELIVERY: I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier and addressed as above. I placed the envelope or package for collection and overnight delivery at an office ora regularly utilized drop box of the overnight delivery carrier. [X] BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am “readily familiar” withthis business’ practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the U.S. PostalService in Newport Beach, California, in a sealed envelope with postage fully prepaid. [ 1 FACSIMILE: Based on an agreement of the parties to accept service by fax transmission, I faxed the document(s) to the person(s) at the fax number(s) listed above. The telephone numberof the sending facsimile machine was (949) 585-5151. [ ] BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail orelectronic transmission, I caused the document(s) to be sent from marina@simonlawcorp.com(sender's email address) to the person(s) at the e-mail address(es) listed above. [X] STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 14, 2016 at Newport Beach, California.Yu - vi C. Ventura 1 PROOF OF SERVICE