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

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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 GRANTING IN PART,
DENYING IN PART PLAINTIFFS’
MOTION TO WITHDRAW
DEEMED ADMISSIONS AND FOR
ADVERSE INFERENCE
SANCTIONS
(ECF No. 87)
For the reasons discussed below, the Court GRANTS IN PART and DENIES IN
PART Plaintiffs’ Russell Elliott and Nelly Elliott motion to withdraw deemed admissions
and to impose adverse inference sanctions (“Motion”). (ECF No. 87.)
I. 	BACKGROUND
Plaintiffs are a married couple with minor children. (ECF No. 61.) Plaintiff Russell
Elliott suffers from medical disabilities. 	(ECF No. 61 at 2:6-8.) 	On March 6, 2024,
Plaintiffs, proceeding pro se, filed a complaint alleging housing discrimination based on
familial status, sex, disability, and national origin and intimidation against Defendants
Apartment Management Consultants LLC, Monica Flores, and Spe Terra Nova Apartment
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Owners LLC (“Defendants”). (ECF No. 1.) Plaintiffs allege that Defendants incorrectly
assumed that their children left toys on the sidewalk near their apartment complex, where
Plaintiffs resided at the time. (Id. at 3.) Plaintiffs also allege that, as a result of Defendants’
actions, Plaintiffs are now homeless (ECF No. 61 at 2:14-15.) Defendants filed a motion
for summary judgment. (ECF No. 79.) The Court denied Defendants’ motion for summary
judgment on February 6, 2026, for failure to adequately notify Plaintiffs prior to resting on
Plaintiffs’ deemed admissions. 	(ECF No. 86.) 	Plaintiffs then filed their Motion to
withdraw their deemed admissions and to separately impose an adverse inference sanction
against Defendants for deleting electronically-stored information. 	(ECF No. 87.) 	The
Court considers Plaintiffs’ requests below.
II. 	DISCUSSION
A. 	Withdrawal 	of 	Deemed 	Admissions 	Under 	Federal 	Rule 	of 	Civil
Procedure 36
Federal Rule of Civil Procedure (“Rule”) 36, which governs requests for admission,
provides that a matter is deemed admitted unless the responding party serves written
answers or objections to the requests for admission within 30 days after receipt. Fed. R.
Civ. P. 36(a)(3). Matters admitted under Rule 36 are conclusively established unless the
court allows the admissions to be withdrawn or amended.
“[T]he court may permit withdrawal or amendment if [(1)] it would promote the
presentation of the merits of the action and [(2)] if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the action on the merits.” Fed.
R. Civ. P. 36(b). 	Rule 36(b) is permissive. Thus, if the Court finds that the two elements
of Rule 36(b)'s test are met, the Court may, but is not required to, permit the withdrawal of
the admissions. Conlon v. United States, 474 F.3d 616, 624–25 (9th Cir. 2007). The Court
must consider both factors before granting or denying a motion to withdraw admissions.
Id. at 622.
The first half of the test in Rule 36(b) is satisfied when amendment of admissions
“would promote the presentation of the merits of the action.” 	“The party seeking
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withdrawal or amendment bears the burden of showing that granting the motion will
promote the presentation of the merits.” 1 Steven S. Gensler, Federal Rules of Civil
Procedure, Rules and Commentary, Rule 36 (2021). The Ninth Circuit and its lower courts
have provided numerous examples of what satisfies this standard. 	See, e.g., Conlon, 474
F.3d at 622 (admissions “would practically eliminate any presentation of the merits of the
case”); Tierny v. Haresh, 2019 WL 1755495, at *2 (E.D. Cal. Apr. 19, 2019) (admissions
“would establish legal conclusions or render undisputed material facts of the case”); Hash
v. Kanaan, 2018 WL 9801926, at *1 (N.D. Cal. Mar. 20, 2018) (admissions “relate to the
ultimate merits” and “foreclose a reasonable presentation of the merits of the case”); Saenz
v. Branch, 2017 WL 6343485, at *2 (N.D. Cal. Dec. 12, 2017) (admissions “unnecessarily
complicate[ ] and confuse[ ] an accurate presentation of the merits”).
Under the second half of the test in Rule 36(b), the party relying on the deemed
admissions has the burden of demonstrating prejudice. 	Conlon, 474 F.3d at 622. 	This
inquiry turns on whether the nonmoving party would suffer prejudice at trial. 	Id. 	The
prejudice contemplated by Rule 36(b) “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.” Hadley v. U.S.,
45 F.3d 1345, 1348 (9th Cir. 1995). In other words, the inconvenience that may result if
the admissions are withdrawn, without more, is insufficient to show prejudice. 	See id. at
1349.
1. 	Rule 36(b) Part One Analysis
The Court agrees with Plaintiffs that the first half the 36(b) test is satisfied. Here,
Plaintiffs allege “upholding the admissions would completely foreclose any presentation
of 	the 	merits 	. 	. 	. 	[and] 	have 	Plaintiffs 	concede 	every 	element 	of 	their 	housing
discrimination claims. . . [a]llowing them to stand would prevent this case from ever being
decided on the facts.” (ECF No. 87 at 8:22-28.)
The relevant admissions in this Order are referred to as “Deemed Admissions” and
are included and enumerated in an exhibit accompanying Defendants’ motion for summary
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judgment. 	(See ECF No. 79-1.) 	Deemed Admissions Nos. 1–13 state that Plaintiffs did
not experience discrimination as prohibited by law from Defendants. Deemed Admissions
Nos. 14–16 contradict Plaintiffs’ allegations in their complaint regarding Monica Flores’
statements to Plaintiffs and their children that they were not permitted to play in certain
areas of Defendants’ apartment complex. 	Deemed Admissions Nos. 17–30 state that
Plaintiffs did not experience intimidation on the basis of belonging to a class protected by
law. 	Deemed Admissions Nos. 32–33 state conclusions regarding Plaintiffs’ “tangible”
and “non-tangible” damages. 	Given that the aforementioned Deemed Admissions
essentially regurgitate elements of legal and damages issues in this action, the Court finds
that Deemed Admissions Nos. 1–30, 32–33 “would establish legal conclusions” in the case.
See Tierny, 2019 WL 1755495, at *2.
Further, Deemed Admissions Nos. 34–43 generally refer to the availability of
documents possessed by Plaintiffs to support to the allegations—and as such, keeping them
admitted “would practically eliminate any presentation of the merits of the case”. Conlon,
474 F.3d at 622. 	Lastly, Deemed Admission No. 31, which states that Plaintiffs were
evicted for failure to pay rent, implies that Plaintiffs were not evicted for any legally
actionable reason stated in their complaint and also “practically eliminate any presentation
of the merits of the case.” Conlon, 474 F.3d at 622.
Thus, granting Plaintiffs’ withdrawal request regarding the aforementioned Deemed
Admissions 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.” Fed. R. Civ. P. 36(b).
2. 	Rule 36(b) Part Two Analysis
Defendants have not responded to Plaintiffs’ withdrawal of deemed admissions, or
otherwise demonstrated prejudice suffered, at trial or otherwise, upon withdrawal of
Plaintiff’s admissions. 	For instance, Defendants have not suggested in their motion for
summary judgment (ECF No. 79) or in an opposition to Plaintiffs’ motion to withdraw
deemed admissions that they could not obtain evidence necessary to prove its admissions
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during discovery. See Cent. Tel. Co. v. Rlo Equip. Inc., No. 2:22-CV-00723-GMN-BNW,
2025 WL 1358585, at *3 (D. Nev. Apr. 2, 2025). Moreover, though Defendants solely rest
upon Plaintiffs’ deemed admissions in its motion for summary judgment (ECF No. 79), the
Ninth Circuit has concluded that “reliance on a deemed admission in preparing a summary
judgment motion does not constitute prejudice.” Conlon, 474 F.3d at 624.
Accordingly, 	the 	Court 	GRANTS 	Plaintiffs’ 	request 	to 	withdraw 	deemed
admissions. (ECF No. 87.)
B. 	Adverse Inference Sanctions
Rule 37(e)(2)(A)–(C) permits an adverse inference sanction if the movant can prove
that the nonmoving party acted with “intent to deprive another party of the information’s
use in litigation.” Fed. R. Civ. P. 37(e)(2)(A)–(C).
Here, Plaintiffs request an adverse inference sanction because Defendants deleted
evidence 	on 	their 	website 	(https://www.terranovaapts.com/apartments/ca/chula-
vista/photos) in alleged bad faith. 	(ECF No. 87 at 9–10.) 	However, Plaintiffs have not
presented any evidence for why the photos previously stored at the aforementioned URL
are either relevant to the current litigation or why they believe that Defendants acted in bad
faith when deleting the photos.
As such, the Court DENIES Plaintiffs’ request for adverse inference sanctions.
(ECF No. 87.)
III. 	CONCLUSION
For the reasons above, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ Motion. (ECF No. 87.)
IT IS SO ORDERED.
DATED: March 12, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
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