O. L. v. City of El Monte, et al Case No. 2:20-cv-00797-RGK (JDE) United States District Court, C.D. California Filed February 08, 2021 Counsel Maria Barr, Deputy Clerk, Attorneys Present for Plaintiff: n/a n/a, Court Reporter / Recorder, Attorneys Present for Defendants: n/a Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order re Motion for Relief [Dkt. 143] I. INTRODUCTION *1 On January 27, 2020, Plaintiff O.L. (“Plaintiff”), proceeding pro se, filed the instant action alleging thirteen claims, including alleged civil rights violations pursuant to 42 U.S.C. § 1983. Dkt. 1. On March 19, 2020, Plaintiff filed the operative Second Amended Complaint. Dkt. 40 (“SAC”). The Court granted in large part a motion to dismiss the SAC, dismissing or staying all claims except a single Section 1983 claim based upon an alleged Fourth Amendment violation against Defendants Lilian Jara (“Jara”) and Richard Ruiz (“Ruiz”) (collectively, “Defendants”). Dkt. 72. Defendants answered the SAC on August 14, 2020. Dkt. 80. Following a motion for a protective order regarding confidential information filed by Plaintiff, the Court, on October 30, 2020, entered a Protective Order governing the handling of confidential information. Dkt. 113. On January 5, 2021, Plaintiff filed a Motion for Relief from Deemed Admissions and Waived Objections (Dkt. 143, “Motion”) with a Joint Stipulation (Dkt. 144, “Joint Stipulation” or “Jt. Stip.”) and supporting and opposing evidence (Dkt. 144-1 to 144-3). No party filed a supplemental memorandum. The Court previously found the Motion may properly be decided without oral argument. See Dkt. 160. The Court rules as follows. II. RELEVANT LAW A. Relevance for Discovery Purposes “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. (“Rule”) 26(b)(1). Relevance under Rule 26(b)(1) is defined broadly. See Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019), aff'd sub nom. V5 Techs., LLC v. Switch, LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020) (noting that relevance for discovery purposes remains broad even after the 2015 amendments of the Federal Rules of Civil Procedure). Moreover, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted). District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). B. Rule 33 Interrogatories Pursuant to Rule 33, a party may propound to another party up to 25 interrogatories relating to “any matter that may be inquired into under Rule 26(b).” Rule 33(a)(1), (2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Rule 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity.” Rule 33(b)(4). “Any grounds not stated in a timely objection unless the Court, for good cause, excuses the failure.” Id. C. Rule 36 Requests for Admission *2 Rule 36 provides that a “party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.” Rule 36(a)(1). “If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it.” Rule 36(a)(4). A denial “must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only part of a matter, the answer must specify the part admitted and qualify or deny the rest.” Id. If a party objects to a request for admission, it must state its grounds for the objection and “must not object solely on the ground that the request presents a genuine issue for trial.” Rule 36(a)(5). “A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.” Rule 36(a)(1). “A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.” Rule 36(b). Although recognizing the importance of resolving actions on the merits, Rule 36(b) also protects parties who justifiably rely on admission in preparation for trial. See Rule 30(b)(6), Advisory Committee Notes (1970 amendment). D. Objections Not Timely Asserted or Maintained Are Waived Generally, a party who fails to make timely objections to a discovery request waives those objections. See, e.g., Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (holding a party waived objection based on foreign secrecy laws because the party did not raise the “raise the issue before the district court as an objection to [the other party's] discovery request”); Gee v. Gallardo, 2020 WL 2083018, at *2 (C.D. Cal. Mar. 5, 2020) (“Generally, when a party fails to timely and properly object to a discovery request, such objections are waived.” (quoting In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 679 (N.D. Ga. 2012))); Colonies Partners LP v. Cty. of San Bernardino, 2019 WL 2895187, at *5 (C.D. Cal. May 1, 2019) (finding parties “waived any relevancy argument” against Rule 34 discovery requests because they “made no objection based on relevancy in their timely responses, nor is there any other information before the [c]ourt to allow it to conclude that a proper relevancy objection was made in a timely fashion” (citing Ramirez v. Cty. of L.A., 231 F.R.D. 407, 409 (C.D. Cal 2005))). E. A Moving Party's Initial Burden in Presenting a Discovery Motion A party bringing a discovery-related motion bears the initial burden of informing the Court, at a minimum, which discovery requests or responses are the subject of the motion. See Local Rule 37-2.1 (requiring a joint stipulation in support of a discovery motion “must contain all issues in dispute” and, if, for example, the sufficiency of an answer to an interrogatory is at issue, “the stipulation must contain, verbatim, both the interrogatory and the allegedly insufficient answer, followed by each party's contentions as to that particular interrogatory, separately stated”); see also Chester v. King, 2019 WL 4013354, at * 4 (E.D. Cal. Aug. 26, 2019) (noting, “[a]t a minimum, as the moving party Plaintiff bears the burden of informing the court (1) which discovery requests are the subject of his motion to compel; (2) which of Defendant's responses are disputed; ....”). III. DISCUSSION *3 By the Motion, Plaintiff seeks two types of relief: (1) relief from deemed admissions under Rule 36(a)(3), (b) for failure to provide timely responses to Requests for Admission (“RFAs”); and (2) relief from waiver of objections to Interrogatories, RFAs, and Requests for Production of Documents (“RFPs”) that were not asserted in a timely response. The Court will discuss each in turn. A. Relief from Deemed Admissions On September 28, 2020, Defendants served written discovery upon Plaintiff, including RFAs. Jt. Stip. at 3. Following an extension, responses to the RFAs were due by November 4, 2020. Id. On October 12, 2020, Plaintiff sent counsel for Defendants an email in which, in response to some but not all of the RFAs propounded, she stated: “It is for the finder of fact to assess whether a document or witness supports a claim and answer your questions. These RFAs are not an attempt to nail down the disputed core facts of the case but to harass and annoy Plaintiff.” Dkt. 144-2 at 10 (CM/ECF pagination). Separately in the same email, Plaintiff stated “absent a protective order governing confidential information Plaintiff objects to any attempt to obtain her confidential information.” Id. The Court entered a Confidentiality Protective Order on October 30, 2020. Dkt. 113. On November 27, 2020, according to Defendants, Plaintiff “served objections to the written discovery with few substantive responses.” Jt. Stip. at 3. Plaintiff argues that she should be relieved from “deemed admissions” to the RFAs to which she failed to timely respond to “promote the presentation of the merits of the action.” Jt. Stip. at 3. She asserts that the subject of the admissions would practically eliminate any presentation of the merits of the case and Defendants would not be prejudiced by their withdrawal. Id. at 5. Defendants argue Plaintiff has not shown good cause for her belated responses to the RFAs at issue, failed to show the admissions would practically eliminate any presentation of the merits of the case, and further argues Defendants would be prejudiced if Plaintiff were “permitted to make belated objections and denials to the RFAs” because they would have “no opportunity for follow up.” Id. at 6-8. “Strictly speaking Rule 36 is not a discovery procedure at all, since it presupposes that the party proceeding under it knows the facts or has the document and merely wishes its opponent to concede their genuineness. A party who desires to discover what the facts are should resort to other discovery rules rather than Rule 36.” Safeco of Am. v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998) (quoting 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, § 2252, at 524–525); see also People of State of Cal. v. The Jules Fribourg, 19 F.R.D. 432, 436 (N.D. Cal. 1955) (“[T]here is general agreement that requests for admission are not to be treated as substitutes for discovery processes to uncover evidence ....”). Nor should requests for admission “be used ... in the hope that a party's adversary will simply concede essential elements” of the case. Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007). Instead, the purpose of requests for admission is to narrow the issues for trial by identifying and eliminating those matters on which the parties agree. Safeco, 181 F.R.D. at 443. “Failure to timely respond to requests for admissions results in automatic admission of the matters requested.” Fed. Trade Comm'n v. Medicor, LLC, 217 F. Supp. 2d 1048, 1053 (C.D. Cal. 2002). However, Rule 36(b) provides that a court “may permit withdrawal or amendment” of the deemed admission(s) if the court finds (1) that withdrawal or amendment “would promote the presentation of the merits of the action,” and (2) that it would not “prejudice the requesting party in maintaining or defending the action on the merits.” Rule 36(b); see also Raiser v. Utah County, 409 F.3d 1243, 1247 (10th Cir. 2005) (“[N]o litigant should ignore deadlines established by applicable rules, and sanctions may well be appropriate. But more than a failure to meet deadlines is required to deny a party relief from an admission.”). *4 “The first half of the test in Rule 36(b) is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Conlon, 474 F.3d at 622. As to the second half of the Rule 36(b) test: “[t]he prejudice contemplated by Rule 36(b) is not simply that the party who obtained the admission will now have to convince the factfinder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously deemed admitted. Id. (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995) (internal quotation marks omitted)); see also id. at 624 (“[W]e agree with the other courts that have addressed the issue and conclude that reliance on a deemed admission in preparing a summary judgment motion does not constitute prejudice ... [and] we are reluctant to conclude that a lack of discovery, without more, constitutes prejudice.”) (citing cases). “The party relying on the deemed admission has the burden of proving prejudice.” Id. at 622. In addition, in considering a motion for relief from deemed admissions, the court may also consider other factors, including “whether the moving party can show good cause for the delay.” Conlon, 474 F.3d at 625. Ultimately, even if the two essential requirements are satisfied, the withdrawal provision of Rule 36(b) is “permissive, not mandatory,” and is subject to the discretion of the Court. Id. at 621. Here, considering, among other things, the broad scope of the deemed admissions and Defendants' ability to continue to propound other discovery after the belated responses were provided, as well as Plaintiff's October 12, 2020 email which operated as a partial response to some of the RFAs at issue, the Court finds Plaintiff has met her burden for relief from the deemed admissions under Rule 36(b), but only as to the substantive responses Plaintiff served on November 27, 2020. First, the Court notes that the RFAs, if deemed admitted, would effectively preclude Plaintiff from offering any substantive evidence on the merits of the remaining dispute. For instance, Jara's RFA No. 1 to Plaintiff provides: “Admit that YOU do not have any evidence to support your claim for unreasonable search and seizure in violation of the Fourth Amendment against defendant Liliana Jara as alleged in YOUR COMPLAINT.” See Dkt. 144-3 at 50 (CM/ECF pagination). If deemed admitted, Plaintiff would be deemed to have admitted she has no evidence to support the only claim surviving in the SAC. Plaintiff has shown deemed admissions would effectively eliminate the presentation of evidence as to the merits of the case. Second, Defendants' claim of prejudice stems from their claim that if Plaintiff were “permitted to make belated objections and denials to the RFAs,” they would have “no opportunity for follow up.” Id. at 7-8. However, Plaintiff provided her responses on November 27, 2020, a date which provided Defendants sufficient time to propound follow-up discovery, if they desired. Further, as the RFAs, such as RFA No. 1, discussed above, were so broad, effectively seeking admissions that, if deemed having been made, would effectively end the case, and knowing that Plaintiff had previously argued that she had evidence to support her claims, Defendants could not reasonably have relied on a 23-day delay in responding to halt their entire discovery “follow up.” Having found Plaintiff has otherwise met her burden as to the first prong of the Rule 36(b) test and found Defendants have not met their burden to show prejudice under the second prong, the Court, exercising its discretion, finds relief is warranted. Therefore, the Court finds based on the specific facts and circumstances here that Plaintiff has met her burden under Rule 36(b) for relief from the “deemed admissions” for the RFAs served by Defendants. That relief, however, extends only to Plaintiff's substantive responses to the RFAs served on November 27, 2020. The relief does not excuse late objections contained in those responses nor does the relief extend to any responses that did not contain substantive responses in Plaintiff's November 27, 2020 responses. B. Relief from Waiver of Objections *5 As noted, Rule 33(d) provides that any objection not raised in a timely response to an interrogatory “is waived unless the court, for good cause, excuses the failure.” Also as noted, failure to assert objections to discovery in a timely fashion also generally results in a waiver of objections, not only objections to interrogatories. Here, Defendants propounded interrogatories, RFPs, and RFAs on Plaintiff on September 28, 2020. See Dkt. 144-3 at 2 (CM/ECF pagination), ¶ 2. At Plaintiff's request, Defendants granted Plaintiff an extension of the otherwise applicable 30-day respond deadline to November 4, 2020. Id. at 2, ¶ 3. Plaintiff did not provide formal written responses to the discovery until November 27, 2020. Id. at 3, ¶ 7. In those responses served more than three weeks late, Plaintiff included objections in and failed to substantively answer some of those requests based on those objections. See id. at 3 (¶ 7), 24-46, 78-93. Although Plaintiff did not serve formal responses to the discovery requests by November 4, 2020, Plaintiff did send an email on October 12, 2020 to “attempt to meet and confer” regarding discovery propounded by her on Defendants and certain discovery propounded by Defendants upon Plaintiff, among other things. See Dkt. 144-2 at 8-10 (CM/ECF pagination). The Court has previously found this email was sufficient to preserve certain objections, but not others, in connection with certain discovery requests previously ruled upon by the Court. See, e.g. Dkt. 145 at 16-20. In this Motion, Plaintiff does not seek reconsideration of any prior ruling; therefore, nothing herein alters or supersedes those prior rulings. Plaintiff seeks relief the waiver of her objections caused by her untimely assertion of objections, as authorized under Rule 33(d) upon a showing of good cause. See Jt. Stip. at 1, 8. Plaintiff argues good cause exists because: (1) she was seeking a protective order while discovery requests were pending; (2) she is proceeding without counsel; and (3) her delay in responding was not substantial. Id. at 8-10. Plaintiff also cites cases where court have excused late discovery responses even without a showing of good cause. Id. at 10. As an initial matter, Plaintiff references 19 RFAs, 34 Interrogatories, and 40 RFPs. Jt. Stip. at 3. Yet Plaintiff does not, in the Joint Stipulation, set forth those discovery requests or her responses thereto. Nor does Plaintiff, in the Joint Stipulation, set forth the October 12, 2020 meet and confer email in which she referenced certain discovery requests and reference a potential protective order. The requests, responses, and the meet and confer letter are all matters in dispute in the Motion. Local Rule 37-2.1 requires such matters, with the parties' contentions with respect to each, be set forth in the body of the Joint Stipulation. Plaintiff did not do so. This is no technical or inconsequential failure as a determination of whether objections asserted in the October 12, 2020 email are preserved requires comparison to the discovery requests propounded on September 28, 2020 and the belated “responses” served on November 27, 2020. By not placing these issues in the Joint Stipulation, Plaintiff has not properly presented them to the Court. As Plaintiff, after repeated violations of the Local Rules, including Local Rule 37, has been previously cautioned that motions that violate the Local Rules are subject to denial on that basis, and as the Joint Stipulation here violates Local Rule 37-2.1, the Motion, as it relates to the request for relief from a waiver of objections, is denied on that basis. Separately and in addition to the failure to comply with the Local Rules, the Motion as to the request for a relief from a waiver of objections is denied because Plaintiff has not shown good cause to excuse her waiver of objections. The Court first addresses why the purported bases for good cause offered by Plaintiff are insufficient, individually or collectively, to constitute good cause. *6 First, Plaintiff's assertion that her failure to timely serve responses to discovery should be excused by her effort to seek a protective order is not supported by the record. Plaintiff states she started the “meet and confer for a protective order” on October 12, 2020. However, the email Plaintiff sent to Defendants' counsel references only a few selected discovery requests. See Dkt. 144-2 at 8-10 (CM/ECF pagination). The Court has previously found (see Dkt. 145 at 22-23) that the October 12, 2020 email preserved certain objections specifically raised therein as to those requests, and nothing in this order alters that finding. See, e.g. Dkt. 145 at 19-23. The October 12, 2020 email also states, regarding Defendants' discovery requests, “absent a protective order governing confidential information Plaintiff objects to any attempt to obtain her confidential information. Id. at 10. However, that “objection,” even if it is broadly construed to cover all discovery served on Plaintiff, was conditional—“absent a protective order governing confidential information.” The Court entered such a Protective Order, at Plaintiff's request, on October 30, 2020, five days before Plaintiff's discovery responses were due. Thus, the sole arguable “blanket” objection based on the October 12, 2020 was no longer a viable objection as the condition was satisfied five days before Plaintiff's deadline to respond. Efforts to seek a confidentiality protective order do not provide good cause for her failure to timely response to discovery. Second, the fact that Plaintiff is proceeding without counsel does not of itself justify her failure to timely respond to discovery. Plaintiff is an active litigant who knew of the deadline. Thus far, Plaintiff has filed 31 motions, requests, or applications in this case, including a request for a temporary restraining order, two motions for a preliminary injunction, a request for entry of judgment, and ten discovery motions. See Dkt. 3, 4, 5, 7, 12, 19, 20, 24, 33, 43, 82, 87, 92, 93, 97, 98, 99, 102, 107, 114, 117, 118, 130, 132, 138, 143, 146, 151, 153, 155, 158. Plaintiff was aware of the discovery response deadline. On October 16, 2020, Plaintiff initiated a request “for an extension of time to respond to [Defendants'] discovery requests pending protective orders.” Dkt. 144-3 at 7 (CM/ECF pagination). Defendants granted Plaintiff an extension until November 4, 2020 (id. at 6), which was after the entry of the “pending protective order” on October 30, 2020. Although Plaintiff is proceeding pro se, she has been an active litigant who was aware of the deadline. Third, although Plaintiff asserts her delay was “not substantial,” a delay of over three weeks, after she already received an extension, resulting in responses provided less than three months before the discovery cutoff, as part of what appears to be a pattern of discovery obfuscation and abuse by Plaintiff that has inflicted a hardship on Defendants in their efforts to defend themselves in this action, and particularly considering that Plaintiff provided no substantive responses to several interrogatories and provided only cursory responses to others, did not have an insubstantial impact on the case. The length of the delay here, considering all of the circumstances, does not support a finding of good cause. Lastly, Plaintiff cites cases for the proposition that even without a showing of good cause, courts have discretion to allow untimely objections to stand. Dkt. 144 at 10. The Court recognizes its discretion to excuse Plaintiff's untimely objections. The Court declines to do so here, finding Plaintiff's pattern of obfuscation in discovery, refusal to properly and timely respond substantively to basic discovery requests, including a failure to appear at her deposition without justification, and repeated violations of the Local Rules, all to the detriment and prejudice of Defendants, make an excusal of Plaintiff's conduct not warranted here. Plaintiff has not met her burden to show good cause to excuse her failure to serve timely objections. The Motion is denied in this regard. IV. CONCLUSION AND ORDER For the foregoing reasons, the Motion (Dkt. 143) is GRANTED in part and DENIED in part as follows: 1. Plaintiff's request for relief from deemed admissions for the two sets of RFAs served by Defendants on September 28, 2020 is GRANTED based on Plaintiff's substantive responses to those RFAs served on November 27, 2020; the relief applies only to substantive responses to RFAs served on November 27 and does not extend to any RFA to which no substantive response was provided and does not extend to any objections not timely asserted by November 4, 2020; nothing in this Order prevents Defendants from seeking a determination of the sufficiency of any answer or objection asserted in responses to the RFAs at issue under Rule 36(a)(6); and *7 2. Plaintiff's request for relief from objections waived due to Plaintiff's failure to timely respond to discovery requests is DENIED; this ruling does not alter any prior ruling of the Court as to any previous discovery dispute. IT IS SO ORDERED. Initials of Clerk: mba