Judge Katherine Chilton, Case 21STLC08921 2022-09-21 Tentative Ruling

PROCEEDINGS: MOTION REQUESTING ADDITIONAL DISCOVERY IN A LIMITED JURISDICTION CASE

Plaintiff Mercedes-Benz Financial Services, USA LLC’s Motion Requesting Additional Discovery in a Limited Jurisdiction Case is DENIED.

On December 16, 2021, Plaintiff Mercedes-Benz Financial Services, USA LLC (“Plaintiff”) filed an action against Defendants Jotham Collision Center, LLC (“Jotham”), Jerome Gabriel (“Gabriel”), Lien Sale Service (“Lien Sale”), and Ron Sachs (“Sachs”), (collectively, “Defendants”), for violation of Civil Code §§ 3068, 3071, and 3073, violation of Vehicle Code § 10652.5, conversion, and unfair business practices (Civil Code § 17200).

On January 18, 2022, Defendant Gabriel filed a General Denial (even though he is not listed in the “Parties” section of the Complaint).

On March 14, 2022, pursuant to Plaintiff’s request, the Court entered default against Defendant Jotham. (3-14-22 Request.) Defendant Jotham filed a General Denial on May 6, 2022, which was erroneously accepted by the Court given that default had been entered against said Defendant.

On August 24, 2022, Plaintiff filed a Motion to Compel Further Discovery Responses of Defendant Sachs, seeking to obtain supplemental responses to Plaintiff’s Requests for Admission.

Plaintiff also filed a Motion for Order Granting Leave for Additional Discovery (“Motion”). On September 14, 2022, Defendant Sachs filed an untimely Opposition to the Motion and Plaintiff filed an untimely Reply to the Opposition on September 16, 2022.

Under the Economic Litigation Provisions, discovery is limited in limited civil cases. (Code of Civ. Proc. § 90 et seq.)

In limited jurisdiction cases, a party may propound to each adverse party any combination of 35 of the following: (1) interrogatories with no subparts, (2) demands to produce documents, and (3) requests for admission with no subparts. (Code Civ. Proc., § 94(a).) Parties are also allowed one oral or written deposition and may serve on any person a subpoena deuces tecum. (Code Civ. Proc., § 94(b), (c).)

“The court may, on noticed motion and subject to such terms and conditions as are just, authorize a party to conduct additional discovery, but only upon a showing that the moving party will be unable to prosecute or defend the action effectively without the additional discovery. In making a determination under this section, the court shall take into account whether the moving party has used all applicable discovery in good faith and whether the party has attempted to secure the additional discovery by stipulation or by means other than formal discovery.” (Code Civ. Proc., § 95(a).) (Italics added.) Parties may also stipulate to allow additional discovery. (Ibid. § 95(b).)

As a procedural matter, the Court notes that Plaintiff served the Notice of Motion and Motion on Defendant Sachs via mail on August 24, 2022, sixteen (16) courts days and two (2) calendar days prior to the hearing, in violation of Code of Civil Procedure § 1005(b), which requires documents to be served 16 court days prior to a hearing, with the addition of five (5) calendar days in case of service by mail. (Mot. p. 13.) Subsequently, Defendant served the Opposition to the Motion on September 14, 2022, via mail, six (6) court days before the hearing, instead of nine (9) court days, as required by § 1005(b). Plaintiff served the Reply on September 16, 2022, via mail, three (3) court days before the hearing, instead of five (5) court days, as required by § 1005(b). Both the Opposition and Reply were served by regular mail and not “personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” (Code of Civ. Proc. § 1005(c).) Thus, it is possible that Defendant Sachs may not receive a copy of the Reply by the hearing date on September 21, 2022.

The Court also notes that none of the exhibits submitted in support of Plaintiff’s Motion are authenticated under penalty of perjury, except for Exhibit 16. (Cuellar Decl. ¶ 11.) Similarly, none of the exhibits submitted in support of Plaintiff’s Reply are authenticated. Given that the exhibits are not authenticated, the Court may not consider them in its analysis. (See Evidence Code § 1400 et seq.)

Finally, the Court notes that throughout the Motion, Opposition, and Reply, the parties address the Defendant interchangeably as Ron Sachs and Lien Sale Service. Plaintiff argues that at some point in the lawsuit, it was “notified by defense counsel that Defendant Sachs is doing business as “Lien Sale Service.” (Mot. p. 6.) If this is the case, both parties will need to comply with procedural requirements. Plaintiff will need to decide whether its motions and discovery requests are addressed to Defendant Lien Sale Service or Defendant Ron Sachs, as an individual. Furthermore, Defendant Sachs will not be able to represent Defendant Lien Sales as there is no indication that he is a licensed attorney. Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. [Citation.]” (Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621.) An entity must be represented by a lawyer in legal proceedings and may not represent itself (either directly or through a non-lawyer agent) in litigation, as such an act would be the unauthorized practice of law. (See e.g. Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101) (corporation); Albion River Watershed Protection Ass’n v. Department of Forestry & Fire Protection (1993) 20 Cal. App. 4th 34, 37 (unincorporated association); Aulisio v. Bancroft (2014) 230 Cal. App. 4th 1518, 1519-20 (trustee for trust).) [The Court notes that Ron Sachs served responses to Plaintiff’s Request for Admissions on behalf of Lien Sale Service, which he cannot do].

According to Plaintiff, “[t]his lawsuit arises from the wrongful lien sale initiated, in part, by Lien Sale Service, a company owned by Defendant Ron Sachs.” (Mot. p. 3.) Plaintiff seeks a court order permitting additional discovery in a limited civil case as to Defendant Sachs as “good cause exists to grant Plaintiff’s leave for additional discovery because Plaintiff will be prejudiced if it is not allowed to complete the discovery necessary to properly prosecute this action.” (Mot. p. 2.)

Plaintiff’s counsel states that on April 4, 2022, Plaintiff propounded first sets of discovery on Defendant Sachs in the form of Requests for Admission, Requests for Production, Form Interrogatories, and Special Interrogatories. (Cuellar Decl. ¶ 4.) According to Plaintiff, Defendant provided evasive answers to the Requests for Admission, objections to the Requests for Production and Form Interrogatories, and no responses to the Special Interrogatories. (Cuellar Decl. ¶¶ 5-7.) On June 13, 2022, Plaintiff requested supplemental responses to the discovery requests and a stipulation to conduct additional discovery. (Cuellar Decl. ¶ 8.) Defendant provided supplemental responses to the Requests for Admission but ignored the request to stipulate. (Cuellar Decl. ¶¶ 9-10.) Parties tried to settle the case and, in the meantime, agreed to an extension for Defendant to provide supplemental responses. (Cuellar Decl. ¶ 11; Ex. 16.) Settlement negotiations were not successful. (Ibid. at ¶ 11.)

Plaintiff requests an order permitting additional discovery so it can collect information about additional lien sales and demonstrate a pattern of behavior that supports Defendant Sach’s violations in the instant lien sale. (Mot. pp. 3-4.) Furthermore, Plaintiff argues that it is entitled to additional discovery because “Defendant Sachs is not forthcoming with all individuals involved with his company, Lien Sale Service” and Plaintiff cannot determine the identities of additional Defendants. (Ibid. at pp. 3-4, 6.) Plaintiff also argues that it is entitled to discovery related to the $25,000 bond as required by the California Department of Motor Vehicles (“CA DMV”). (Ibid. at p. 7.) Finally, Plaintiff argues that it is entitled to collect information to demonstrate Defendant’s negligence or incompetence that relates to the instant case as well as other lien sales. (Ibid. at p. 8.)

Plaintiff states that it has attempted to collect this information through its discovery requests, but Defendant Sachs has provided evasive answers that have necessitated Plaintiff to continue to seek additional answers. It argues that “Defendant hides behind the protection of ‘Rule 35’ and provided no documents to Plaintiff” in response to the Request for Production of Documents. (Ibid. at p. 9.)

Despite the late filing of the Opposition, the Court, in its discretion considers the arguments made in Defendant Sach’s Opposition. (California Rules of Court, rule 3.1300(d).) The Opposition contains arguments opposing the instant Motion as well as Plaintiff’s Motion to Compel Further Discovery Responses, filed on August 24, 2022. Defendant “strenuously opposes granting any further discovery and in turn argues that Plaintiff has used excessive and improper use of the discovery devices to harass, cause delay and has therefore misused the discovery process.” (Oppos. p. 1.) A significant portion of the Opposition focuses on the merits of the underlying lawsuit as well as extraneous procedural issues. However, Defendant does argue that Plaintiff “has served hundreds of discovery requests” on Defendant Sachs. (Ibid. at p. 2.)

In its Reply, Plaintiff reiterates its arguments for the Motion and makes several arguments addressing the merits of the case. (See Reply.) Plaintiff also argues that the Court should not consider Defendant Sach’s Opposition for being untimely, even though its own Motion and Reply have been filed untimely. (Reply p. 3.)

The Court finds that there are several procedural defects as discussed above. More importantly, Plaintiff has already discovery requests substantially in excess of what is allowed in limited civil court and through its Motion has not demonstrated how it has used permitted discovery in good faith to collect the information it seeks. Plaintiff argues that Defendant “hides behind the protection of ‘Rule 35’” in failing to provide responses to the discovery requests, but it appears that Plaintiff is the one violating Code of Civil Procedure § 94 by propounding discovery requests in excess of those permitted, without obtaining the Court’s leave to do so. (Mot. at p. 9.)

For these reasons, Plaintiff Mercedes-Benz Financial Services, USA LLC’s Motion Requesting Additional Discovery in a Limited Jurisdiction Case is DENIED.

For the foregoing reasons, Plaintiff Mercedes-Benz Financial Services, USA LLC’s Motion Requesting Additional Discovery in a Limited Jurisdiction Case is DENIED.

[1] The Court notes that the Notice and Motion were served via mail and thus, should have been served 16 court days, plus 5 calendar days, prior to the hearing on the Motion. Service was not timely, as the documents were served via mail merely 16 court days prior to the hearing.