Judge: Michael E. Whitaker, Case: 22SMCV02460, Date: 2024-07-16 Tentative Ruling

Case Number: 22SMCV02460    Hearing Date: July 16, 2024    Dept: 207

TENTATIVE RULING

MOTION

            On December 29, 2023, Defendant Sam Ostayan (“Defendant”) filed a Notice of Omnibus Motion to Quah Deposition Subpoenas for Production of Business Records to Attorney Lender Services, Inc.; Total Lender Solutions, Inc.; S.B.S. Lien Services; Mortgage Lender Services; Integrated Lender Services, Inc.; First American Title Insurance Co.; and Clear Recon Corp. 

            On February 14, 2024, Defendant filed an Amended Notice of Omnibus Motion, and on March 20, 2024, Defendant filed a Second Amended Notice of Omnibus Motion.  Although the notices all purport to be based on the memorandum of points and authorities, declaration of Katherine K. Meleski, no such memorandum of points and authorities or declaration appears in the Court’s record.  The motion is unopposed.

PROCEDURAL REQUIREMENTS

            Foremost, Code of Civil Procedure section 1005 requires that “[a]ll moving and supporting papers shall be filed and served at least 16 court days before the hearing.  The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.”  (Code Civ. Proc., § 1005, subd. (b); see also Code Civ. Proc., § 1010; Cal;. Rules of Court, rule 3.1112(a) [“the papers filed in support of a motion must consist of at least the following:  . . .  A memorandum in support of the motion or demurrer”].)  Here, Defendant failed to file and serve a memorandum of points and authorities.  As such, the Court finds that the motion is not meritorious.  (See Cal. Rules of Court, rule 3.1113(a) [“A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported”].) 

            Further, because Defendant failed to file supporting papers including a declaration, Defendant’s motion does not satisfy the requisite procedural requirements to demonstrate that the parties met and conferred.  Further, because there is no separate statement outlining the requested discovery, the Court cannot make a determination as to whether Defendant’s motion to quash is righteous and should be granted.  (See California Rules of Court, rule 3.1345 [requiring separate statement for discovery motions].)

CONCLUSION AND ORDER

Therefore, Defendant’s motion is denied on procedural grounds for failure to file and serve supporting papers, including a memorandum of points and authorities, a declaration, and a separate statement.

Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED: July 16, 2024                                                           ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court