Judge: Jill Feeney, Case: 22STCV33659, Date: 2024-03-21 Tentative Ruling

Case Number: 22STCV33659    Hearing Date: April 3, 2024    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

The motions to compel Plaintiff Grover Henry Colin Nix IV’s responses to Form and Special Interrogatories and Requests for Production filed by Defendant the Wilmington Trust are GRANTED.

Verified responses without objections must be served within 15 days after the date of this order.

The Wilmington Trust’s request for sanctions against Plaintiff is GRANTED in the amount of $1,975. Sanctions are payable within 15 days after the date of this order.

Moving party to give notice.

Factual background

This is an action for wrongful foreclosure. Plaintiff alleges that he purchased a home after obtaining a mortgage from American Home Mortgage Investment Corp. After the lender filed for bankruptcy, Chase, without consideration, falsely conveyed the deed to a Chase entity called SAM II, a pool of mortgages bundled together by a pooling agreement. In November 2012, Chase initiated nonjudicial foreclosure proceedings against Plaintiff. After Plaintiff transferred the property to Soames Lane Trust, the trust filed for bankruptcy. The bankruptcy court lifted the automatic stay in 2020 and again after the trust filed for bankruptcy a second time. Chase held a foreclosure sale in October 2022.

PROCEDURAL HISTORY 

On October 17, 2022, Plaintiffs Grover Henry Colin Nix, IV (Nix) and the Soames Lane Trust filed their Complaint against Defendants JPMorgan Chase Bank and the Wilmington Trust, NA (Wilmington Trust).

On December 5, 2022, Plaintiffs filed their First Amended Complaint naming additional defendants Structured Asset Mortgage Investment II Trust 2007-AR7, Inc., Elizabeth Newsome, Ro’Quintessa Ledawnika Givens, Katrina Ashton, Krisshune Benjamin, and Carol Cinquemani.

On October 31, 2023, Plaintiffs dismissed Defendants Elizabeth Newsom, Ro’Quintessa Ledawnika Givens, Katrina Ashton, Krisshune Tate Benjamin, and Carol Cinquemani from this action.

On November 9, 2023, Plaintiffs filed a Second Amended Complaint.

On November 20, 2023, Defendant Wilmington Trust filed these motions to compel Nix’s responses to requests for written discovery.

DISCUSSION 

Defendant Wilmington Trust moves to compel Nix’s responses to requests for Form Interrogatories (FROGs), Special Interrogatories (SROGs), and Requests for Production (RPDs).

Compelling Responses to Interrogatories

Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (Code Civ. Proc. section 2030.260, subd. (a).)\

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. (Code Civ. Proc section 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that needs 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.)

Compelling Response to Demand for Production of Documents 

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. § 2031.300, subd. (a).) Thus, 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. 

Objections

A party waives its objections to a discovery request when it does not serve a timely response to the request. (Code Civ. Proc., section 030.290(a)) Even if objections do not need to be verified, objections will be waived if the responding party “fails to file any response within the statutory time period.” (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 658.)

Verification

Unverified discovery responses are tantamount to no response at all and are subject to a motion to compel responses (rather than a motion to compel further responses).  (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 635-36.) However, objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.)

Sanctions

Sanction are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., sections 2030.290(c), 2031.300(c).) Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., section 2023.030, subd. (a). ) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., section 2023.010, subd. (d).) Cal. Rules of Court, Rule 3.1348 provides that a court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery even if no opposition was filed.

Here, the Wilmington Trust’s counsel testifies that he propounded FROGs, SROGs, and RPDs on Nix on February 28, 2023. (Fink Decl., ¶4.) Nix’s responses were due on April 4, 2023. (Id., ¶5.) Plaintiff requested an extension on April 5, 2023, which the Wilmington Trust granted. (Id., ¶6.) On April 26, 2023, the day after responses were due, Plaintiffs’ counsel requested a further extension to May 12, 2023. (Id.) On May 12, 2023, Plaintiffs’ counsel sent the Wilmington Trust’s counsel a letter representing Plaintiffs would not provide responses or production of documents. (Id.) The letter states Plaintiffs are “holding off serving [their] formal responses” because they are seeking a protective order. (Id., Exh. C.) Plaintiffs’ counsel represented that the protective order was necessary to protect Plaintiffs’ financial and credit information. (Id.)

Nix failed to respond to the Wilmington Trust’s discovery requests. A response to interrogatories must contain either (1) an answer containing the information sought to be discovered, (2) an exercise of the party’s option to produce writings, or (3) an objection to the particular interrogatory. (Code Civ. Proc., section 2030.210(a).) The responding party must answer each interrogatory individually and each answer or objection in response must bear the same identifying number or letter and be in the same sequence as the corresponding interrogatory. (Id., subd. (c).) Likewise, responses to requests for production must respond to each item or category of items separately by (1) a statement the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection to the particular demand. (Code Civ. Proc., section 2031.210(a).) A court may compel responses without objections if it finds no legally valid responses have been provided. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409.)

Here, Nix’s May 12, 2023 letter does not constitute a valid response to any of the Wilmington Trust’s discovery requests. Nix’s counsel’s letter merely states Nix will seek a protective order to protect financial and credit information. It does not respond separately to each particular interrogatory, request for production, or category of items with the options allowed under Code Civ. Proc., sections 2030.210(a) and 2031.210(a). Because the letter contains none of the required contents of responses to interrogatories or requests for production, the letter does not constitute a legally valid response. Nix thus failed to provide any response to the Wilmington Trust’s requests for written discovery. Nix’s objections to the requests are waived because he failed to serve timely responses. The Wilmington Trust’s motions to compel Nix’s responses to discovery requests are granted.

Nix argues that these motions should not be heard until the Court has had the opportunity to address and rule on his motion for a protective order. However, there is no law that discovery responses or discovery motions may be withheld or stayed pending the outcome of a protective order. If Nix believed the discovery requests were improper, Nix was required to serve objections to each set of discovery requests compliant with Code Civ. Proc., sections 2030.210(a) and 2031.210(a).  Moreover, Nix had ample time to timely file a motion. He did not do so. Further, Nix fails to explain how every single discovery request requires information that would be subject to a protective order.

With respect to sanctions, the Court finds that Nix did not oppose this motion with substantial justification. Additionally, failure to timely serve responses to discovery constitutes abuse of the discovery process. The Court awards the Wilmington Trust a total of $1,975 for 5 hours of attorney time at a rate of $395 per hour plus $120 in filing fees.

DATED: April 3, 2024

____________________________ 

Hon. Jill Feeney

Judge of the Superior Court