Elliot et al v. Spe Terra Nova Apartment Owners LLC et al

- 1 - 24cv447
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RUSSELL ELLIOT and NELLY
ELLIOT,
Plaintiffs,
v.
SPE TERRA NOVA APARTMENT
OWNERS LLC., et. al,
Defendants.
Case No. 24-cv-00447-BAS-JLB
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT (ECF No. 79)
For the reasons discussed below, the Court DENIES the motion for summary
judgment (ECF No. 79) submitted by Defendants Apartment Management Consultants
LLC, Monica Flores, and Spe Terra Nova Apartment Owners LLC.
I. 	DISCUSSION
Defendants move for summary judgment on the basis that Plaintiffs’ lack of response
to their requests for admission (“RFAs”) translate to deemed concessions of Plaintiffs’
entire case. 	(ECF No. 79.) 	However, courts within this Circuit have held that pro se
Case 3:24-cv-00447-BAS-JLB Document 86 Filed 02/06/26 PageID.<pageID>
Page 1 of 3

- 2 - 24cv447
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
plaintiffs who diligently prosecute their case but might not know the ramifications for
failing to respond to requests for admission should be granted fair notice prior to the Court
granting summary judgment against plaintiffs. 	Jefferson v. Perez, No. CIV S-09-3008
GEB, 2011 WL 4760796, at *1 (E.D. Cal. Oct. 7, 2011) (citing Klingele v. Eikenberry, 849
F.2d 409, 411–12 (9th Cir. 1988)).
Before a matter may be deemed admitted against a pro se litigant for failure to
respond to a request, the RFA should contain a notice advising the party to whom the
request is made that, pursuant to Rule 36 of the Federal Rules of Civil Procedure, the
matters shall be deemed admitted unless said request is responded to within thirty (30) days
after service of the request or within such shorter or longer time as the court may allow.
Jefferson, 2011 WL 4760796, at *2. 	There is some inconsistency, if not unfairness, in
allowing “deemed” admissions to stand as the sole basis of summary judgment against pro
se plaintiffs without notice when plaintiffs have otherwise prosecuted their case. Jefferson
v. Perez, No. CIV S-09-3008 GEB, 2011 WL 4760796, at *2 (E.D. Cal. Oct. 7, 2011).
Here, though Defendants’ RFAs notify Plaintiffs that they need to respond within 30
days, Defendants did not include any language in those RFAs that the contents of the RFAs
would constitute deemed admissions in the event of non-response. 	(See ECF Nos. 79-1,
79-2.)
II. 	CONCLUSION
The Court ORDERS Plaintiffs to refer to the RFAs and to either file a motion to
withdraw their deemed admissions, see Federal Rule of Civil Procedure 36(b), or file a
motion to inform the Court they wish to rest on their deemed admissions by March 23,
2026. Failure to respond by March 23, 2026 will result in automatic admission of the
matters requested, and may be relied upon as the basis for granting summary
judgment. 	If summary judgment is granted, your case will be dismissed and there
will be no trial.
If Defendants wish to file a response to Plaintiffs’ submissions in response to this
Order, they would need to do so by fourteen days following Plaintiffs’ response to this
Case 3:24-cv-00447-BAS-JLB Document 86 Filed 02/06/26 PageID.<pageID>
Page 2 of 3

- 3 - 24cv447
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order. Once the parties submit their positions on whether Plaintiffs’ admissions should
be withdrawn, amended or admitted and whether additional discovery is warranted, the
court will decide the status of plaintiff's deemed admissions.
Based on lack of notice to pro se Plaintiffs that non-response to RFAs within 30 days
results in deemed admissions, the Court DENIES Defendants’ motion for summary
judgment. (ECF No. 79.) The motion for summary judgment is subject to renewal after
resolution of the admissions issue.
IT IS SO ORDERED.
DATED: February 6, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
Case 3:24-cv-00447-BAS-JLB Document 86 Filed 02/06/26 PageID.<pageID>
Page 3 of 3