Judge: Deirdre Hill, Case: YC072410, Date: 2023-03-06 Tentative Ruling

Case Number: YC072410    Hearing Date: March 6, 2023    Dept: M

Hearing Date:                         February 10, 2023

Moving Parties:                      Plaintiff Danny Trebold

Responding Party:                  Defendant AGRUS, et al.

(1)   Motion to Compel Discovery Responses

(2)   Motion to Deem Requested Facts for Admissions Admitted

            The court considered the moving and opposition papers.

RULING

            The motions are GRANTED in part.  Defendants are ordered to serve code-compliant verifications to be received by Plaintiff no later than March 10, 2023.  Final Status Conference 3-13-2023 in Dept M. as well as ORDER to show cause why sanctions including striking of the answer for Defendants’ failure to appear at FSC and failure to file trial preparation documents; status of settlement; Case management conference to include discussion of trial proceeding as scheduled or alternatively whether there is a stipulated continuance by stipulation or otherwise; evaluation of 5 year date. Discussion was had on Judge Reihert’s mention of matter being transferred to limited jurisdiction, but this court notes no motion was set on the issue by Judge Reinehert.  Clerk to give notice forthwith.

BACKGROUND

On October 24, 2017, Danny Trebold (self-represented) filed a complaint against Allianz Global Risks United States (AGRUS) for fraud.  The “cause of action” was not attached to the complaint as is required by the form complaint at para. 8.

            On December 12, 2017, plaintiff filed a First Amended Complaint, which did not have the attachment for a cause of action for fraud.

            On February 13, 2018, plaintiff filed a Second Amended Complaint.

            On August 28, 2018, plaintiff filed a notice of unconditional settlement along with a substitution of attorney.

            On October 30, 2018, the case was dismissed pursuant to CCP §664.6.

            On August 15, 2019, plaintiff filed a substitution of attorney.  He is now representing himself.

            On August 20, 2019, the court granted plaintiff’s ex parte application to vacate the dismissal.

            On October 8, 2019, the court sustained defendant’s demurrer to the SAC with leave to amend.

            On October 8, 2019, plaintiff filed a Third Amended Complaint.

            On February 20, 2020, the court sustained defendant’s demurrer to the TAC with leave to amend to allow plaintiff to plead a different cause of action.

            On March 10, 2020, plaintiff filed a Fourth Amended Complaint.

            On July 31, 2020, plaintiff filed a Fifth Amended Complaint.

            On February 11, 2021, the court (Judge Nishimoto) sustained without leave to amend defendants National Surety Corporation, Allianz Resolution Management, and Allianz Reinsurance of America’s demurrer to the Fifth Amended Complaint.  The court overruled the demurrer as to the 1^st and 2^nd causes of action as to AGRUS and Fireman’s Fund.

            On February 26, 2021, the court granted plaintiff’s motion to compel further discovery responses.

            On April 13, 2021, National Surety Corporation, Allianz Resolution Management, and Allianz Reinsurance of America were dismissed without prejudice.

            On June 22, 2021, the court denied plaintiff’s motion for issue and evidence sanctions.

            On March 1, 2022, the court denied as moot plaintiff’s motion for order to deem facts of admission admitted.

            On May 18, 2022, the court granted plaintiff’s motion for leave to amend.

            On May 25, 2022, plaintiff filed a Sixth Amended Complaint.

            On September 6, 2022, the court sustained the demurrer with leave to amend.

            On September 21, 2022, plaintiff filed a Seventh Amended Complaint.

            On October 5, 2022, the court denied plaintiff’s motion for issue and evidentiary sanctions.

LEGAL AUTHORITY

Interrogatories

            If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  CCP §2030.290(b).  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906. 

            Request for Production of Documents

            Where there has been no timely response to a CCP §2031.010 demand, the demanding party must seek an order compelling a response.  CCP §2031.300.  Failure to timely respond waives all objections, including privilege and work product.  So, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded.  There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.  Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.  Weil & Brown, Civil Procedure Before Trial, 8:1487. 

            Request for Admissions

Pursuant to CCP §2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).  “Failure to timely respond to RFA does not result in automatic admissions.  Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under §2023.010 et seq.”  Civ. Proc. Before Trial, 8:1370, citing CCP § 2033.280(b).  The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  CCP §2033.280(c).

DISCUSSION

            Plaintiff requests that the court compel defendants to respond to Special Interrogatories, Set Nos. 4, 5, and 6 and to Identification and Production of Documents, Set Nos. 4, 5, and 6 (as to AGRUS, Fireman’s Fund, and National Surety Corp.) and to deem admitted the Requested Facts for Admission, Set Nos. 5 and 6 (as to AGRUS and National Surety Corp.).

            On August 19, 2022, plaintiff served the written discovery.  He states that he received “unmeritorious objections” and on or about September 30, 2022, he received further responses.  He contends that the responses were not accompanied by valid verifications as they “did not state that they were executed by an authorized representative” of defendants.  Plaintiff states in his declaration that he contacted defense counsel to provide valid verifications, but that defense counsel indicated that they were adequate.

            In opposition, defendants argue that they have provided plaintiff with verified, code-compliant responses.  Defendants contend that the declarant who signed the verifications is an employee of Allianz Reinsurance America, Inc. of which Fireman’s Fund and National Surety Corporation are subsidiaries and that in his employment with AGRUS he is Head of Reinsurance and Claims litigation for AGRUS.

            The court rules as follows:  The motions are GRANTED in part.  CCP §2030.250 states:  “(a) The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.  (b) If that party is a public or private corporation, or a partnership, association, or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party. . . .”  See also CCP §§2031.250 (documents) and 2033.240 (admissions).

Defendants served verifications that state:  “I am an employee of ALLIANZ REINSURANCE AMERICA, INC., a party to this action, and am authorized to make this verification for an on its behalf, and I make this verification for that reason.”

The court finds that the verifications are insufficient.  A sufficient verification would state the employee’s position or relationship with each defendant and that he is a duly designated and authorized agent.  Further, Allianz Reinsurance America, Inc. is no longer a party to this action having been dismissed.

Clerk is ordered to give notice of this ruling.