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California plaintiff failed to respond to RFA's...even after a one week extension!


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Brief recap:

Plaintiff is TD Bank for an account stated claim. To date, answer was filed, and a trial date set for next month. Discovery they sent was answered. They objected to pretty much every doc request claiming most of the items were irrelevant, including a statement of account and proof of entering the "new contract".

The request for docs was followed by a set of RFA's. They requested a two week extension despite having two remaining weeks to respond. A one week extension was granted in a letter mailed to the plaintiff as the two week extension took the date right to (literally on) the discovery cutoff! They also claimed defendant wouldn't be prejudiced as no trial date was set....WRONG. One was set.

The new due date given to them has passed. A CCP96 was served on them, and their response is due in a couple of weeks. In response to the CCP96, they sent a CCP98 for a person admitting they are in Minnesota. They also have not sent the defendant a CCP96, rather, they sent the 1987 (notice to appear in lieu of subpoena).

Okay, whew. So the question is, can a motion to deem admissions admitted be filed now? Or must a meet and confer be sent. I read that if no response has been given for admissions that no meet and confer was required, but I'd like clarification if possible.

Thank you everybody.

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I don't believe there is any Civil Procedure that requires "M&C" and besides you have already granted them an extension.  If you want to cover the meet and confer, call them, you will likely leave a message.  Leave message if you don't hear from them in 24 hours, M&C is done. 

 

They may or may not return, who cares then file the Motion to Deem admited...

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In California, you need to meet and confer before filing a motion to compel.  You should do this is a letter.  However, by failing to respond when due, plaintiff has waived all objections to the RFAs including any objection based upon the attorney-client privilege.  Your letter will look something like this:

 

I write regarding [insert Plaintiff’s name]’s failure to respond to Defendant’s First Set of Requests For Admission.

 

Defendant served these [Requests] on _____.  At plaintiff's request, defendant granted a one-week extension of time to respond.  Plaintiff’s verified response was therefore due on ____.  As noted above, plaintiff has failed to serve any response at all.

 

Pursuant to California Code of Civil Procedure section 2033.280, because plaintiff has failed to serve a timely response, it has waived “any objection to the requests, including one based on privilege or on the protection for work product.”

 

Please serve a verified response, without objection, on or before [insert date that will give you enough time to move to compel] or defendant will have no alternative other than to file a motion to compel such a response.  Should such a motion be necessary, please be advised that defendant will also ask the Court to have these requests be deemed admitted pursuant to Code of Civil Procedure section 2033.280( B).

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In California, you need to meet and confer before filing a motion to compel.  You should do this is a letter.  However, by failing to respond when due, plaintiff has waived all objections to the RFAs including any objection based upon the attorney-client privilege.  Your letter will look something like this:

 

I write regarding [insert Plaintiff’s name]’s failure to respond to Defendant’s First Set of Requests For Admission.

 

Defendant served these [Requests] on _____.  At plaintiff's request, defendant granted a one-week extension of time to respond.  Plaintiff’s verified response was therefore due on ____.  As noted above, plaintiff has failed to serve any response at all.

 

Pursuant to California Code of Civil Procedure section 2033.280, because plaintiff has failed to serve a timely response, it has waived “any objection to the requests, including one based on privilege or on the protection for work product.”

 

Please serve a verified response, without objection, on or before [insert date that will give you enough time to move to compel] or defendant will have no alternative other than to file a motion to compel such a response.  Should such a motion be necessary, please be advised that defendant will also ask the Court to have these requests be deemed admitted pursuant to Code of Civil Procedure section 2033.280( B).

Is this required despite having already conferred with Plaintiff regarding an allowed extension, wherein Defendant has noticed Plaintiff that in the event no response is served by a specified date, that further action would be taken?

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You are not worried about the discovery cut off.  That is for RESPONDING to discovery.  You are worried about the last day to hear motions concerning discovery:

 

2024.020.  (a) Except as otherwise provided in this chapter, any
party shall be entitled as a matter of right to complete discovery
proceedings on or before the 30th day, and to have motions concerning
discovery heard on or before the 15th day, before the date initially
set for the trial of the action.

 

 

 

So you need to calendar 16 court days before 15 days before trial (plus 5 if you serve your discovery motion by mail).

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@calawyer

 

Thank you so much, that's been the worry. This is exactly what I needed to know. I found it particularly interesting that they requested an extension that took them to the actual cutoff date, but I suppose it doesn't really matter. I was afraid that the defendant only has until the cutoff to do something about their not answering.  Whew.

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No, I failed to file anything regarding their objections. That's unfortunate because some of the items requested such as a statement of account providing the alleged amount and also proof the defendant received the statements (COA is account stated) "May be irrelevant". I'm learning as I go because I'm only used to a breach of contract with account stated. not just AC.

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