Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 RUSSELL ELLIOT and NELLY Case No. 24-cv-00447-BAS-JLB ELLIOT, 13 ORDER GRANTING IN PART, Plaintiffs, 14 DENYING IN PART PLAINTIFFS’ v. MOTION TO WITHDRAW 15 DEEMED ADMISSIONS AND FOR SPE TERRA NOVA APARTMENT 16 ADVERSE INFERENCE OWNERS LLC., et. al, SANCTIONS 17 Defendants. 18 (ECF No. 87)

19 For the reasons discussed below, the Court GRANTS IN PART and DENIES IN 20 PART Plaintiffs’ Russell Elliott and Nelly Elliott motion to withdraw deemed admissions 21 and to impose adverse inference sanctions (“Motion”). (ECF No. 87.) 22 I. BACKGROUND 23 Plaintiffs are a married couple with minor children. (ECF No. 61.) Plaintiff Russell 24 Elliott suffers from medical disabilities. (ECF No. 61 at 2:6-8.) On March 6, 2024, 25 Plaintiffs, proceeding pro se, filed a complaint alleging housing discrimination based on 26 familial status, sex, disability, and national origin and intimidation against Defendants 27 Apartment Management Consultants LLC, Monica Flores, and Spe Terra Nova Apartment 28 1 Owners LLC (“Defendants”). (ECF No. 1.) Plaintiffs allege that Defendants incorrectly 2 assumed that their children left toys on the sidewalk near their apartment complex, where 3 Plaintiffs resided at the time. (Id. at 3.) Plaintiffs also allege that, as a result of Defendants’ 4 actions, Plaintiffs are now homeless (ECF No. 61 at 2:14-15.) Defendants filed a motion 5 for summary judgment. (ECF No. 79.) The Court denied Defendants’ motion for summary 6 judgment on February 6, 2026, for failure to adequately notify Plaintiffs prior to resting on 7 Plaintiffs’ deemed admissions. (ECF No. 86.) Plaintiffs then filed their Motion to 8 withdraw their deemed admissions and to separately impose an adverse inference sanction 9 against Defendants for deleting electronically-stored information. (ECF No. 87.) The 10 Court considers Plaintiffs’ requests below. 11 II. DISCUSSION 12 A. Withdrawal of Deemed Admissions Under Federal Rule of Civil 13 Procedure 36 14 Federal Rule of Civil Procedure (“Rule”) 36, which governs requests for admission, 15 provides that a matter is deemed admitted unless the responding party serves written 16 answers or objections to the requests for admission within 30 days after receipt. Fed. R. 17 Civ. P. 36(a)(3). Matters admitted under Rule 36 are conclusively established unless the 18 court allows the admissions to be withdrawn or amended. 19 “[T]he court may permit withdrawal or amendment if [(1)] it would promote the 20 presentation of the merits of the action and [(2)] if the court is not persuaded that it would 21 prejudice the requesting party in maintaining or defending the action on the merits.” Fed. 22 R. Civ. P. 36(b). Rule 36(b) is permissive. Thus, if the Court finds that the two elements 23 of Rule 36(b)'s test are met, the Court may, but is not required to, permit the withdrawal of 24 the admissions. Conlon v. United States, 474 F.3d 616, 624–25 (9th Cir. 2007). The Court 25 must consider both factors before granting or denying a motion to withdraw admissions. 26 Id. at 622. 27 The first half of the test in Rule 36(b) is satisfied when amendment of admissions 28 “would promote the presentation of the merits of the action.” “The party seeking 1 withdrawal or amendment bears the burden of showing that granting the motion will 2 promote the presentation of the merits.” 1 Steven S. Gensler, Federal Rules of Civil 3 Procedure, Rules and Commentary, Rule 36 (2021). The Ninth Circuit and its lower courts 4 have provided numerous examples of what satisfies this standard. See, e.g., Conlon, 474 5 F.3d at 622 (admissions “would practically eliminate any presentation of the merits of the 6 case”); Tierny v. Haresh, 2019 WL 1755495, at *2 (E.D. Cal. Apr. 19, 2019) (admissions 7 “would establish legal conclusions or render undisputed material facts of the case”); Hash 8 v. Kanaan, 2018 WL 9801926, at *1 (N.D. Cal. Mar. 20, 2018) (admissions “relate to the 9 ultimate merits” and “foreclose a reasonable presentation of the merits of the case”); Saenz 10 v. Branch, 2017 WL 6343485, at *2 (N.D. Cal. Dec. 12, 2017) (admissions “unnecessarily 11 complicate[ ] and confuse[ ] an accurate presentation of the merits”). 12 Under the second half of the test in Rule 36(b), the party relying on the deemed 13 admissions has the burden of demonstrating prejudice. Conlon, 474 F.3d at 622. This 14 inquiry turns on whether the nonmoving party would suffer prejudice at trial. Id. The 15 prejudice contemplated by Rule 36(b) “relates to the difficulty a party may face in proving 16 its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to 17 obtain evidence with respect to the questions previously deemed admitted.” Hadley v. U.S., 18 45 F.3d 1345, 1348 (9th Cir. 1995). In other words, the inconvenience that may result if 19 the admissions are withdrawn, without more, is insufficient to show prejudice. See id. at 20 1349. 21 1. Rule 36(b) Part One Analysis 22 The Court agrees with Plaintiffs that the first half the 36(b) test is satisfied. Here, 23 Plaintiffs allege “upholding the admissions would completely foreclose any presentation 24 of the merits . . . [and] have Plaintiffs concede every element of their housing 25 discrimination claims. . . [a]llowing them to stand would prevent this case from ever being 26 decided on the facts.” (ECF No. 87 at 8:22-28.) 27 The relevant admissions in this Order are referred to as “Deemed Admissions” and 28 are included and enumerated in an exhibit accompanying Defendants’ motion for summary 1 judgment. (See ECF No. 79-1.) Deemed Admissions Nos. 1–13 state that Plaintiffs did 2 not experience discrimination as prohibited by law from Defendants. Deemed Admissions 3 Nos. 14–16 contradict Plaintiffs’ allegations in their complaint regarding Monica Flores’ 4 statements to Plaintiffs and their children that they were not permitted to play in certain 5 areas of Defendants’ apartment complex. Deemed Admissions Nos. 17–30 state that 6 Plaintiffs did not experience intimidation on the basis of belonging to a class protected by 7 law. Deemed Admissions Nos. 32–33 state conclusions regarding Plaintiffs’ “tangible” 8 and “non-tangible” damages. Given that the aforementioned Deemed Admissions 9 essentially regurgitate elements of legal and damages issues in this action, the Court finds 10 that Deemed Admissions Nos. 1–30, 32–33 “would establish legal conclusions” in the case. 11 See Tierny, 2019 WL 1755495, at *2. 12 Further, Deemed Admissions Nos. 34–43 generally refer to the availability of 13 documents possessed by Plaintiffs to support to the allegations—and as such, keeping them 14 admitted “would practically eliminate any presentation of the merits of the case”. Conlon, 15 474 F.3d at 622. Lastly, Deemed Admission No. 31, which states that Plaintiffs were 16 evicted for failure to pay rent, implies that Plaintiffs were not evicted for any legally 17 actionable reason stated in their complaint and also “practically eliminate any presentation 18 of the merits of the case.” Conlon, 474 F.3d at 622. 19 Thus, granting Plaintiffs’ withdrawal request regarding the aforementioned Deemed 20 Admissions would “promote the presentation of the merits of the action and if the court is 21 not persuaded that it would prejudice the requesting party in maintaining or defending the 22 action on the merits.” Fed. R. Civ. P. 36(b). 23 2. Rule 36(b) Part Two Analysis 24 Defendants have not responded to Plaintiffs’ withdrawal of deemed admissions, or 25 otherwise demonstrated prejudice suffered, at trial or otherwise, upon withdrawal of 26 Plaintiff’s admissions. For instance, Defendants have not suggested in their motion for 27 summary judgment (ECF No. 79) or in an opposition to Plaintiffs’ motion to withdraw 28 deemed admissions that they could not obtain evidence necessary to prove its admissions 1 || during discovery. See Cent. Tel. Co. v. Rlo Equip. Inc., No. 2:22-CV-00723-GMN-BNW, 2 WL 1358585, at *3 (D. Nev. Apr. 2, 2025). Moreover, though Defendants solely rest 3 || upon Plaintiffs’ deemed admissions in its motion for summary judgment (ECF No. 79), the 4 || Ninth Circuit has concluded that “reliance on a deemed admission in preparing a summary 5 ||sudgment motion does not constitute prejudice.” Conlon, 474 F.3d at 624. 6 Accordingly, the Court GRANTS Plaintiffs’ request to withdraw deemed 7 admissions. (ECF No. 87.) 8 B. Adverse Inference Sanctions 9 Rule 37(e)(2)(A)-(C) permits an adverse inference sanction if the movant can prove 10 the nonmoving party acted with “intent to deprive another party of the information’s 11 || use in litigation.” Fed. R. Civ. P. 37(e)(2)(A)}H(C). 12 Here, Plaintiffs request an adverse inference sanction because Defendants deleted 13 |}fevidence on their website (https://www.terranovaapts.com/apartments/ca/chula- 14 || vista/photos) in alleged bad faith. (ECF No. 87 at 9-10.) However, Plaintiffs have not 15 || presented any evidence for why the photos previously stored at the aforementioned URL 16 || are either relevant to the current litigation or why they believe that Defendants acted in bad 17 || faith when deleting the photos. 18 As such, the Court DENIES Plaintiffs’ request for adverse inference sanctions. 19 || (ECF No. 87.) 20 CONCLUSION 21 For the reasons above, the Court GRANTS IN PART and DENIES IN PART 22 || Plaintiffs’ Motion. (ECF No. 87.) 23 IT ISSO ORDERED. 24 25 ||DATED: March 12, 2026 (yatta Bahar □□ %6 H n. Cynthia Bashant, Chief Judge United States District Court 27 28 _& _