30-2018-00982 oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 0 1 lectronically Filed by Superior Court of California, County of Orange, 07/07/2020 01:45:00 PM. D74-CU-PO-CJC -ROA #76 - DAVID H. YAMASAKI, Clerk of the Court By J onathan Aguilar, Deputy Clerk. Robert H. Stellwagen, Jr. Esq., (State Bar No. 150560) Jessica R. Stone, Esq., (State Bar No. 313426) COLLINS COLLINS MUIR +STEWART LLP 1100 El Centro Street South Pasadena, CA 91030 (626) 243-1100 - FAX (626) 243-1111 Attorneys for Defendant, TERRADYNE ENGINEERING, INC. formerly known as TERRADYNE LAX, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER JOEL OROS OLIVAS, an individual CASE NO. 30-2018-00982974-CU-PC-CJC [Assigned to Hon. Thomas A. Delaney, Dept C-24] MOTION TO DEEM ADMITTED TERRADYNE ENGINEERING, INC.’S REQUESTS FOR ADMISSION, SET ONE, TO PLAINTIFF JOEL OROS OLIVAS AND TO IMPOSE SANCTIONS IN THE SUM OF $ 2,295.00 Plaintiff, VS. WEBER-MADGWICK EXCAVATING, INC., a California corporation, and DOES 1 through 30, inclusive. [Filed Concurrently with Declaration of Jessica Defendants. Stone, Esq.; Proposed Order.] DATE: December 11, 2020 TIME: 10:00 A.M. DEPT: C-24 RESERVATION NO.: 73332066 Complaint Filed: 03/29/2018 Trial Date: None Ne N r N e N e N e N e N e N e N e N e N e N N N N N N N N N N TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 11, 2020 at 10:00 a.m. or as soon thereafter as the matter may be heard in Department C-24 of the above-referenced court located at 700 W. Civic Center Dr., Santa Ana, California 92701, defendant Terradyne Engineering, Inc. formerly known as Terradyne LAX, Inc. (“Terradyne”) will and hereby does move this court for an order that the truth 22227 1 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 of each matter specified and the genuineness of each documents specified in Terradyne’s Requests for Admission (Set One) to Plaintiff Joel Oros Olivas (“Plaintiff”) served on Plaintiff on April 9, 2020 be deemed admitted and established for all purposes in this action. A copy of the Requests for Admission (Set One) at issue is attached as Exhibit A to the Declaration of Jessica Stone, Esq. submitted concurrently herewith. PLEASE TAKE FURTHER NOTICE that as part of the instant motion and pursuant to Code of Civil Procedure sections 2033.280(b) and (c), 2023.030(a) and 2023.010(d) and (h), Defendant Terradyne will and hereby does move for an order that Plaintiff Joel Oros Olivas, and Plaintiff’s counsel of record, John Ksajikian, Esq., jointly and severally, pay the sum of $2,295.00 as the reasonable costs and attorneys fees incurred by Terradyne in bringing this motion. This motion is based on based on Code of Civil Procedure section 2033.280(b) and (c), and made on the grounds that the Requests for Admission at issue are relevant to the subject matter of the action, and that Plaintiff Joel Oros Olivas has not served a timely response to Terradyne’s Requests for Admission (Set One). This motion is based on this notice, the attached Memorandum of Points and Authorities, the Declaration of Jessica Stone, Esq. all exhibits submitted in support of this motion, all matters of which the Court may or shall take judicial notice, the papers, pleadings and records on file herein, and such oral and documentary evidence as may be presented at the hearing of this matter. DATED: July 7, 2020 COLLINS COLLINS MUIR + STEWART LLP \ESSICA STONE BERT H. STELLWAGEN, JR. Attorneys for Defendant, TERRADYNE ENGINEERING, INC. formerly known as TERRADYNE LAX, INC. 22227 2 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Joel Oros (“Plaintiff”) has unjustifiably failed to respond to Defendant Terradyne Engineering, Inc.’s (“Terradyne”) Requests for Admission, Set One (“Requests for Admission”). An order that the truth of each matter specified in the Requests for Admission be deemed admitted is, therefore, warranted under Code of Civil Procedure section 2033.280. Sanctions against Plaintiff are similarly warranted in light of Plaintiff’s abuse of the discovery process. (Code Civ. Proc. §§ 2033.280(b)-(c), 2023.030(a), 2023.010(d), (h).) In this construction accident case, Plaintiff Joel Oros Olivas alleges he was injured in a trench collapse that occurred on April 15, 2016 during the construction of a cell tower and underground storage vault at the Tustin Sports Park, located at 12850 Robinson Drive, Tustin, California 92677 (“Project”). (Complaint at | 1-7 pp. 2:4-3:16.) Plaintiff’s action for personal injury brings suit against several defendants Plaintiff alleges were involved with the Project and/or employed other involved with the Project. More specifically, Plaintiff claims that said defendants are liable to Plaintiff for the negligent hiring of contractors and/or employees hired to perform the subject excavation work at the Project, and for failing to take adequate measures to ensure safe work conditions at the Project site, including committing employer violations under California Code of Regulations sections 1509 and 1541.1, Business and Professions Code section 17200, and California Labor Code section 6402. Defendant Terradyne’s Requests for Admission - served on Plaintiff on April 9, 2020 - were related to establishing the truth of factual matters relevant to this construction accident case, including: the employment relationship, if any, between Plaintiff and Defendants; the employment relationship, if any, between the Defendants and those performing services on the Project; Terradyne’s scope of work on the Project and responsibility for overseeing workplace and/or worker safety on the Project; and facts related to Plaintiff’s allegations of employer violations under California Code of Regulations sections 1509 and 1541.1, Business and Professions Code section 17200, and California Labor Code section 6402. Thus, the Requests for Admission inquire into matters and issues that are relevant in this dangerous condition of public property litigation and that are within the scope of discovery. Such factual matters are undeniably relevant to the subject matter of the pending litigation, and the Requests for Admission 22227 3 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 probe into matters well-within the scope of discovery. The time for Plaintiff to respond to the discovery has passed and, to date, Plaintiff has failed to provide any response - much less a response in “substantial compliance” with Plaintiff’s discovery obligations under Code of Civil Procedure sections 2033.210, 2033.220, or 2033.230. For these reasons and those set forth in further detail below, Defendant Terradyne respectfully requests that the Court grant its motion and issue an order that the truth of each matter specified and the genuineness of each documents specified in the Requests for Admission be deemed admitted and established for all purposes in this action, and ordering that Plaintiff Joel Oros Olvias pay the sum of $2,295.00 as the reasonable costs and attorney’s fees incurred by Terradyne in bringing this motion. II. PROCUDEDURAL HISTORY Defendant Terradyne’s Requests for Admission (Set One) to Plaintiff Joel Oros Olivas were served by mail on April 9, 2020. (Declaration of Jessica Stone, Esq. [“Stone Decl.”’] at q 2, Terradyne’s Requests for Admission, attached as Exhibit A.) Plaintiff Joel Oros Olivas was required to serve responses to the Requests for Admission by May 14, 2020. (Code Civ. Proc. § 2033.250(a) [requiring responding party to serve response to request for admission within 30 days after service of requests for admission]; Stone Decl. at 4.) The time for Plaintiff to respond to the Requests for Admission has not been extended by stipulation or by court order. (Stone Decl. at J 4.) To date, however, Plaintiff has failed to serve any response to the Requests for Admission. (/bid.) Due to Plaintiff’s failure to respond, Defendant Terradyne has incurred and will incur reasonable costs and attorneys fees for bringing this motion in the amount of $2,295.00. (Stone Decl. at 95-8.) III. AN ORDER ESTABLISHING ADMISSISIONS IS NECESSARY AND PROPER Where a responding party fails to timely serve a response to requests for admission, the court is required to grant the propounding party’s motion for deemed admissions “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 request for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc.§ 2033.280(c) [emphasis added]; St. Mary v. Superior 22227 4 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 Court (2014) 223 Cal. App.4th 762, 778.) What’s more, a responding party’s failure to timely respond to requests for admission, alone, requires a court order for monetary sanctions. (Code Civ. Proc. § 2033.280(a)-(b); St. Mary, supra, 223 Cal.App.4th at 776.) Terradyne properly served Plaintiff with the Requests for Admission. Plaintiff failed to timely serve a timely response pursuant to Code of Civil Procedure section 2033.250 and has failed to serve a response of any kind to the Requests for Admission. Plaintiff’s failure to submit to this authorized method of discovery is unwarranted and an abuse of the discovery process, justifying the imposition of sanctions. (Code Civ. Proc.§ 2033.280(c), see also Code Civ. Proc. § 2023.010(d).) Indeed, Terradyne’s Requests for Admission inquire into matters that are relevant to the subject matter of this dangerous condition of public property litigation, and Plaintiff’s failure to respond to the discovery is inexcusable. Terradyne’s motion for an order establishing admissions is proper under Code of Civil Procedure section 2033.280, subds. (b) and (c), and such order is both necessary and proper under the facts before this Court. A. Defendant Terradyne’s Requests for Admission Are Relevant to the Subject Matter of the Action and Properly Within the Scope of Discovery “The purpose of the RFA procedure is to expedite trials and to eliminate the need for proof when matters are not legitimately contested.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783.) Indeed, requests for admission “are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial.” (St. Mary, supra, 223 Cal. App.4th at pp. 774-775 [quoting Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429]; see also Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864, 112) [instead of “seeking to uncover information, [requests for admission] seek to eliminate the need for proof”].) As to the scope of requests for admission, a party may request that another litigant “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc. § 2033.010.) Defendant Terradyne’s Requests for Admission were properly aimed at setting at rest “matters of fact” and “application of law to fact” that are not legitimately contested in this matter. Plaintiff’s 22227 5 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 complaint alleges that Defendants are liable for various employer violations of California workplace safety law for failing to maintain a safe workplace, and for the negligent hiring of employees and/or contractors who were incompetent to perform the excavation work at the Project. The Requests for Admission at issue ask Plaintiff Joel Oros Olivas to admit the truth of matters relevant to the pending litigation, including, but not limited to the employment relationship, if any, between Plaintiff and Terradyne; the employment relationship, if any, between the Terradyne and those performing services on the Project (including the named defendants in this matter); Terradyne’s scope of work on the Project and responsibility for overseeing workplace and/or worker safety on the Project; and facts related to Plaintiff’s allegations of employer violations under California Code of Regulations sections 1509 and 1541.1, Business and Professions Code section 17200, and California Labor Code section 6402. Such matters are undoubtedly relevant to the pending litigation - litigation wherein Plaintiff alleges that Terradyne is at fault due to its negligent hiring, and failure to maintain a safe work place by committing employer violations violations under California Code of Regulations sections 1509 and 1541.1, Business and Professions Code section 17200, and California Labor Code section 6402. The Requests for Admission inquire into matters well-within the scope of discovery and are properly aimed at expediting the trial, thus serving the interests of judicial economy and fairness. An order that the truth of each matter specified in the Requests for Admission be deemed admitted is just and proper under these circumstances. B. Plaintiff Failed to Timely Serve Responses to Requests for Admission In the event responses to Requests for Admission are not timely served, the responding party waives any objections thereto - including claims of privilege or work product protection - 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 requests be deemed admitted, as well as for a monetary sanction” (Code Civ. Proc. § 2033.280(a)-(b); see St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.) 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,” the court must order the requests for admission deemed admitted. (Code Civ. Proc. § 2033.280 (c) [emphasis added].) As one court put it: 22227 6 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 “[W]oe 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 [emphasis added].) Thus, the party bringing a motion for deemed admissions pursuant to Code of Civil Procedure section 2033.280 need only show that the requests were properly served on the opposing party, that the time to respond has expired, and that no response of any kind was served. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404). The moving party is not required to show a “reasonable” or “good faith” attempt to resolve the matter informally. (Id. at 411). Defendant Terradyne has shown that the Requests for Admission were properly served to Plaintiff Joel Oros and that Plaintiff has failed to serve a response - of any kind - to the discovery. As stated previously, Terradyne properly mail-served the Requests for Admission on April 9, 2020. (Stone Decl. § 2.) Plaintiff failed to respond to the Requests for Admission by May 14, 2020 - the statutory deadline. (Decl. at 4.) To date, Plaintiff has failed to serve any response of any kind to the Requests for Admission. (Ibid.) Plaintiff’s failure to respond to the Requests for Admission justifies. and indeed necessitates, a court order establishing the matters specified in the discovery admitted. IV. MONETARY SANCTIONS ARE MANDATORY AND MUST BE AWARDED The court must impose monetary sanctions upon the responding party and/or the attorney for the failure to serve a timely response to properly served requests for admission. (Code Civ. Proc. §2033.280(c); St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776.) Although a delayed response to requests for admissions served prior to the hearing on a “deemed admitted” motion may defeat the motion (where the response served is in “substantial compliance” with Code of Civil Procedure section 2033.220), the tardy response will not assist the non-moving party in avoiding monetary sanctions for the failure to timely respond to the discovery. (/bid.) Regardless of the reason for the delay in responding, it is mandatory that a monetary sanction be imposed on the party or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed- admitted motion. (Code Civ. Proc. § 2033.280(c).) 22227 7 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 Pursuant to Code of Civil Procedure section 2033.280, subd. c., the court must impose monetary sanctions on Plaintiff Joel Oros Olivas for his failure to serve a timely response to the Requests for Admission at issue. As such, Defendant Terradyne requests the Court issue an order that Plaintiff and Plaintiff’s counsel of record, jointly and severally, pay the sum of $2,295.00 as the reasonable costs and attorney’s fees incurred by Terradyne in bringing this motion. V. CONCLUSION Defendant Terradyne respectfully requests that the Court grant its motion and issue an order that the truth of each matter specified and the geniuses of each documents specified in Terradyne’s Requests for Admission (Set One) to Plaintiff Joel Oros Olivas be deemed admitted and established for all purposes in this action, and ordering that Plaintiff Joel Oros Olivas and Plaintiff’s counsel of record, John Ksajikian, Esq., jointly and severally, pay the sum of $2,295.00 as the reasonable costs and attorney’s fees incurred by Terradyne in bringing this motion. DATED: July 7, 2020 COLLINS COLLINS MUIR + STEWART LLP VESSICA STONE BERT H. STELLWAGEN, JR. Attorneys for Defendant, TERRADYNE ENGINEERING, INC. formerly known as TERRADYNE LAX, INC. 22227 8 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS oe R N N n R A W O N N N N N N N N N e e m m em p m p m em N O S tn RA W N = O R d N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 1100 EI Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Los Angeles. ) I am employed in the County of Los Angeles. Iam over the age of 18 and not a party to the within action. My business address is 1100 El Centro Street, South Pasadena, California 91030. On this date, I served the foregoing document described as MOTION TO DEEM ADMITTED TERRADYNE ENGINEERING, INC.’S REQUESTS FOR ADMISSION, SET ONE, TO PLAINTIFF JOEL OROS OLIVAS AND TO IMPOSE SANCTIONS IN THE SUM OF $ 2,295.00 on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST XI (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collectior] and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [J (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in South Pasadena, California. gd BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY Xx (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List: [J FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents witH delivery fees provided for. [0 BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimilg number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1111 indicated al pages were transmitted. [0 BY PERSONAL SERVICE) - I caused such envelopes) to be delivered by hand to the office(s) of the addressee(s). Executed on July 7, 2020 at South Pasadena, California. XJ (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [0 (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. ~~ Kristian M. Eulloqui keulloqui @ccmslaw.com 22227 9 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS 1 JOEL OROS OLIVAS vs. WEBER-MADGWICK EXCAVATING, INC. OCSC CASE NUMBER: 30-2018-00982974-CU-PC-CJC 2 CCMS FILE NUMBER: 22227 3 SERVICE LIST 4 John Ksajikian, Esq. Michael W. Goodin, Esq. KSAJIKIAN LAW FIRM CLAUSEN MILLER P.C. 5 330 N. Brand Blvd., Suite 920 17901 Von Karman Avenue, Suite 650 Glendale, CA 91203 Irvine, CA 92614 (818) 924-4222 - FAX: (818) 924-4261 Fax: (949) 260-3190 6 john @ksajikianlaw.com mgoodin @clausen.com Legal Assistant: emma @ksajikianlaw.com COUNSEL FOR LIEN CLAIMANT AMERICAN 7 ATTORNEYS FOR PLAINTIFF JOEL OROS OLIVAS ZURICH INSURANCE CO. 8 Thomas G. Oesterreich, Esq. Dustin E. Woods, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 9 650 Town Center Drive., Suite 1400 Costa Mesa, CA 92626 10 Tel: (714) 545-9200 - Fax: (714) 850-1030 Thomas.Oesterreich @lewisbrisbois.com 11 Dustin. Woods @lewisbrisbois.com ATTORNEYS FOR RL CLOTWORTHY 12 CONSTRUCTION, INC. AND DEAN HINSON 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLLINS COLLINS MUIR + STEWART.{ | 22227 1100 EI Centro Street So. Pasadena, CA 91030 10 Phone (626) 243-1100 Fax (626)243-1111 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND IMPOSING SANCTIONS
